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"Civil Protection" is Available Only after Death of the Victim

Summary:

Elder abuse is on the rise as baby boomers enter their golden years.  There is no mechanism to provide civil protection for a loved one who is abused by a personal representative, such as a conservator or attorney in fact. 

Civil courts hold to the bizarre position that family or other interested persons have standing only after the death of the victim.  Courts instruct families to document the ongoing abuse of loved ones, and then seek financial compensation after the death of the victim. 

Existing Law:

The legislative intent of the Elder Abuse and Dependent Adult Civil Protection Act was to protect elders and dependent adults from abuse.  WIC 15600(j) states in part: 

 It is the further intent of the Legislature … to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.

Courts misinterpret WIC 15657.3 to deny standing to families seeking civil protection for abused loved ones. 
 
WIC 15657.3(d)(2) states in part: 

If the personal representative refuses to commence or maintain an action or if the personal representative's family or an affiliate … is alleged to have committed abuse of the elder or dependent adult, the persons described in subparagraphs (A), (B), and (C) of paragraph (1) shall have standing to commence or maintain an action for elder abuse.  

 WIC 1567.3(d)(1) begins with:  

Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent.

Rather than correctly granting equal authority to each paragraph, courts incorrectly subordinate WIC 15657(d)(2) to WIC 15657.3(d)(1).  Victims of abuse are denied civil protection.  Families suffer the anguish of watching loved ones abused with impunity.  Financial compensation is the only “remedy” for a loved one abused until death.

Rationale:

The legislative intent of the Elder Abuse and Dependent Adult Civil Protection Act was to provide civil protection from abuse.  At present, courts misinterpret the Act to provide standing to family or interested persons only after the victim is deceased. 

Adding the phrase “during the life of the victim” to WIC15767.3(d)(2) would clarify that family has standing to seek civil protection for a loved one who is abused by a conservator or attorney in fact.  

Alternately, inverting the order of WIC 15657.3(d)(1) and WIC 15657.3(d)(2) could clarify that family and other interested persons have standing to seek civil protection for loved ones who are abused.