Archive for June, 2010

 

Important legislation, written by Senate President Pro Tem Darrel Steinberg (D-Sacramento), Senate Bill 1140, took effect this January and amends the Welfare and Institutions Code, and is an expansion of the rights of financially exploited elders.

Before this important legislation took effect, an elder had to prove his or her property was taken for a wrongful use or with the intent to defraud in order to fall under the legal definition of financial abuse.  There are different levels of fraud.  Over fraud is easy to identify and in some instances rectify or avoid. It is the more overt kinds of fraud, such as undue influence that causes the most harm and is often harder to prove and remedy.  In such cases, proving intent, the legal measure by which you can make someone accountable in most instances, is difficult, if not outright impossible.  This bill addresses this situation by changing the definition to add undue influence as a basis for proving financial abuse. (See Cal. Welf. &: Inst. Code § 15610.30(a)(3).)

Undue influence, as defined by Civil Code section 1575, involves taking unfair advantage of a person’s weakness of mind or the confidence that person had in the perpetrator. By including undue influence as a basis for financial abuse, California now authorizes the recovery of damages, attorneys fees, and costs and thereby provides victims with a potent tool for a faster recovery (§ 15657.5(a)).   This is a preferable remedy to the traditional remedy of rescission, which simply undoes the bad act performed on the elder person.

In addition, SB 1140 requires a perpetrator to return, upon demand, property taken from an elder who lacks capacity. Failing to do so subjects the perpetrator to remedies that reach beyond rescission: damages, attorney’s fees, and costs (§ 15657.6).   This removes the possibility that the elder person will have to deplete all their remaining assets in order to recapture or regain assets taken from them wrongfully.

Perhaps most significantly, SB 1140 changed the statutory definition of wrongful use.  Wrongful use is now defined as the taking of an elder’s property whereby the perpetrator knew or should have known that doing so would likely be harmful to the elder (§ 15610.30(b)).  This puts aggressive salespeople on notice that their interactions with the elderly are going to be scrutinized more carefully.  Caveat emptor no longer applies in most transactions involving the elderly.  A seller may be liable for damages if the seller knows or should know that the sale is likely to harm the elder.

Other changes to the law of financial abuse in SB 1140 are as follows:  expressly recognizes that a victim may recover compensatory as well as punitive damages; holds an employer vicariously liable for financial-abuse damages resulting from the wrongful conduct of an employee committed in the course and scope of employment; and provides a four-year statute of limitations that commences when the plaintiff discovers, or should discover, the facts constituting the financial abuse (§§ 15657.5 and 15657.7).

This new law is an important tool in the protection and rights of elders and should help victims of elder abuse recover from the effects of wrongdoing.

Do you suspect that someone is the victim of elder abuse?  If so, please contact the Law Offices of Daniela Lungu at (925) 558-2710 or email info@lungulaw.com.

Do you want a specific topic discussed in this blog? If so, please contact us at info@lungulaw.com with your suggestions.

About Daniela Lungu, Attorney at Law

Daniela Lungu, founder of the Law Offices of Daniela Lungu, devotes her law practice to asset protection through estate and business planning. Ms. Lungu’s goal is to provide the people of the Bay Area and California with the highest quality, and most personalized legal services possible. Her attention to detail and a high level of communication with her clientele distinguish her from other attorneys in the field.

 

 

 


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