CPM Attorneys Niall McCarthy and Eric Buescher publish chapter on Financial Elder Abuse in “Inside the Minds: Elder Law Client Strategies in California”

Niall McCarthy and Eric Buescher recently published a chapter titled “Fighting Financial Elder Abuse in California” for the Thomson Reuters / Astapore Books publication, “Inside the Minds: Elder Law Client Strategies in California.”  The chapter describes the current state of financial elder abuse law in California and discusses strategies for plaintiffs to successfully prosecute civil financial elder abuse cases in a variety of contexts.  

An excerpt of the chapter is below:

Financial elder abuse cases are on the rise in California. The breadth of predatory practices is staggering.

Victims come from all socioeconomic backgrounds. Perpetrators can be family members, trusted professionals, or large financial institutions. California seniors are in need of help.  Understanding the history and breadth of California elder abuse law is a vital first step for anyone looking to practice in this field.

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A financial elder abuse plaintiff can prevail by showing that a third party was aware of the wrongdoing of the direct abuser.  However, proving “knowing assistance” does not always require

direct knowledge or participation, but can also be proven by inferences from the circumstances. See Wood v. Jamison (2008) 167 Cal.App.4th 156. 

[ . . . ]

Jamison shows that proof of knowing assistance can be made by implication from the likely outcome of the conduct, but does not require actual knowledge. The Jamison court did not rely on the attorneys’ direct knowledge of how McComb convinced Ms. Peterson it would be a good idea to invest several hundred thousand dollars in a nightclub, but determined that it was sufficient for the attorney to know that the proceeds of a loan against Peterson’s residence were going to be used by McComb for the nightclub, and that “any attorney would know it was an inappropriate use of Peterson’s funds.”  Jamison, 167 Cal.App.4th at 165 (emphasis added).

[ . . . ]

More recently, the appellate courts have considered the question of undue influence in the context of financial elder abuse and a probate challenge to an estate plan. In Lintz v. Lintz (2014) 222 Cal.App.4th 1346, the Superior Court entered a “judgment of financial elder abuse, undue influence, breach of fiduciary duty, conversion of separate property, and constructive trust.” Id. at 1349.  The defendant in the case was the decedent’s third wife and “the couple married in 1999, divorced approximately six months later, and remarried in February 2005.  Their second marriage ended when decedent died in October 2009 at age 81.” Id. at 1350.  [The Lintz court] determined that the various definitions of “undue influence” and the standards associated with them in the probate code, the civil code and the welfare and institutions code were the same.  As explained by the court: “We reject defendant’s assertion that the probate court’s undue influence finding was made under Welfare and Institutions Code section 15610.30. . . . Some courts have required the same undue influence showing under Civil Code section 1575 as is required to void a testamentary document under the Probate Code.”

[ . . . ]

Lintz and its logic can be used to expand the ways in which plaintiffs can go about proving financial elder abuse claims. A plaintiff can rely on presumptions of undue influence by proving facts to invoke them.  In doing so, the plaintiff must be prepared to argue that the definitions of and standards for proving undue influence under the family code, probate code, or civil code are the same as found in the welfare and institutions code—an argument directly supported by Lintz.

[ . . . ]

Financial elder abuse is a massive problem in California. Any senior can become a victim, regardless of their background. The EADACPA provides a strong tool to combat abuse. Practitioners must appreciate the nuances in this area of law and the interconnection between the elder abuse statutes and other substantive law and use that knowledge to the advantage of senior citizens.

The book can be purchased through Thomson Reuters here.