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Pick meWhile financial elder abuse is a serious problem in California, not just anyone can sue to protect an abused elder.  This is especially true if the elder does not want to bring suit in the first place.  On April 19, 2017, the California Court of Appeal reinforced an important issue related to standing to bring financial elder abuse claims in the case of Tepper v. Wilkins (2017) __ Cal.App.5th __.  While an elder is still alive, only the elder or a qualified “personal representative” has standing to file suit for financial elder abuse.

Background Facts

Meet the Wilkins.  Eileen is 88 years old and has four children: Belinda, Geoffrey, Martha, and Derek.  Eileen has placed a significant amount of trust in the latter three children, both figuratively and literally, as Geoffrey, Martha, and Derek are the trustees of Eileen’s revocable trust.  Belinda is not a trustee.

Eileen does not have much to do with her own finances.  She does not write her own checks.  She does not have a budget.  She does not know how her money is being spent, and she does not know the extent to which she has made gifts to her three trustee-children.  Eileen trusts her trustee-children to manage her finances.

Belinda does not share Eileen’s trust of Belinda’s siblings.  Belinda is concerned that Eileen has no awareness of her finances and may run out of money due to the trustee-children’s actions.

So, Belinda sued her siblings.  She alleged that each of them had committed financial elder abuse against Eileen.

In response, the trustee-children filed a demurrer.  They argued that even if everything Belinda alleged was true, Belinda could not win a lawsuit against them because she did not have standing to sue them in the first place.  The trustee-children argued that Belinda did not appropriately represent Eileen’s interests.  Eileen agreed, and she joined her trustee-children in asking that Belinda’s lawsuit be dismissed.

The Los Angeles Superior Court agreed with the trustee-children and dismissed the financial elder abuse lawsuit that Belinda had tried to file on Eileen’s behalf.  Belinda appealed.

What is Financial Elder Abuse?

The California legislature established a set of provision in the early 1980s, beginning at Welfare and Institutions Code section 15600, that are specifically designed to protect elders.  The laws provide strong remedies against a person who “takes, secretes, appropriates, obtains or retains” property from a person who is 65 years or older when the offender acts “with the intent to defraud,” uses undue influence, or takes property for a wrongful use.

Who can sue for Financial Elder Abuse?

Generally, the only person who can file a lawsuit is the person who was “aggrieved.”  In other words, the same person who suffered the harm.

This means that while a financially abused elder is alive, the elder is able to sue to remedy whatever harm he or she has suffered.  In addition, a special section of the Elder Abuse Act also allows the elder’s “representative” to sue on the elder’s behalf when the elder lacks capacity or “is of unsound mind.”

While the elder is alive, a “representative” is defined as (1) a “conservator, trustee, or other representative of the estate of an elder or dependent adult” or (2) an “attorney-in-fact of an elder” pursuant to a power of attorney.

After an elder’s death, an action may also be brought by the elder’s personal representative appointed by the Probate Court.  If there is no personal representative appointed, or if the appointed personal representative refuses to act or is the alleged abuser, then any person whose interest is affected by the outcome of the lawsuit has standing to bring a financial elder abuse lawsuit on behalf of the deceased elder.

What about Belinda’s Lawsuit?

The Court of Appeal applied the above law on standing and concluded that Belinda did not qualify.  She was not personally aggrieved by her siblings’ actions (i.e., if they hurt anyone, it was only Eileen).  Furthermore, she could not be considered a “personal representative” during Eileen’s life because Belinda was not her mother’s conservator, trustee, representative, or attorney-in-fact under a power of attorney.

As such, Belinda’s lawsuit was dismissed.

What could Belinda have done?

Belinda had no easy way to obtain standing.

Bringing an elder abuse lawsuit while an abused elder is alive can be very difficult if the elder does not want to bring the suit.  It may be that the elder is not emotionally or psychologically able to bring the suit, especially against a person who previously may have exerted significant control over the elder.

For Belinda, her primary option would have been to file a conservatorship petition and seek to be appointed her mother’s conservator.  That petition likely would have been opposed by Eileen and/or Belinda’s siblings.  Even if the court were to grant a conservatorship, the judge may well pick a third-party to be conservator instead of Belinda, and that third-party may decline to sue for financial elder abuse.  A third-party conservator may be reluctant to spend mom’s resources

Alternatively, Belinda could have sought appointment as her mother’s guardian ad litem under Code of Civil Procedure section 372.  Again, that likely would have caused a fight with her mother and siblings.

Waiting for Eileen’s death could be an option, but involves a significant risk related to the statute of limitations.  The statute of limitations for a financial elder abuse action is four years after the plaintiff discovers, of should have discovered, the abuse.  Had Belinda waited for her mother to die: (1) she would not have been acting to protect her mother’s lifetime finances against perceived abuse; and (2) her action may have been time-barred.

Another risk with waiting is laches, as discussed in Drake v. Pinkham (2013) 217 Cal.App.4th 400, in relation to a trust contest.

Take Away Points

  • In order to bring a claim for financial elder abuse, you must have standing.
  • If elder victim wants you to proceed with a lawsuit on their behalf, the elder may give you standing by appointing you as his or her attorney-in-fact.
  • If the elder does not want to bring the lawsuit, or does not have the capacity to make that decision for himself or herself, then you must be the elder’s “personal representative.” This may require you to be appointed as the elder’s conservator or as a guardian ad litem for the elder for purposes of a lawsuit.

Waiting for the elder to die in order to inherit standing is a risky proposition because the passage of time may leave you without a claim.