California’s Expanding Financial Elder Abuse Laws

Over the past five years, California’s lawmakers have been increasing protections for elders, defined as California residents age 65 or over, including protections to address the growing problem of financial institution involvement in financial elder abuse.

Lawmakers enacted amendments to California’s elder abuse laws in the Financial Elder Abuse Reporting Act of 2005, which went into effect nearly three years ago. As of January 1, 2007, financial institutions, including banks and credit unions, as well as their employees, are required to report suspected incidents of financial elder abuse. The amendments also added civil fines ranging from $1,000 to $5,000 which may be levied against financial institutions if their employees fail to report abuse as required under the Act.

In 2008, lawmakers expanded elders’ rights again with the enactment of a California Senate Bill that expanded the definition of financial elder abuse to include situations where “undue influence” is used to misappropriate an elder’s property. The bill also expanded elders’ rights by making it easier for elders to prove that the misconduct meets the law's requirements that the taking be for a “wrongful use.”

California’s Current Definition of “Financial Elder Abuse”

As it is now defined, financial elder abuse in California occurs when: “a person takes, secretes, appropriates or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both” or does so by the use of “undue influence,” including through the use of “an agreement, donative transfer, or testamentary bequest.” Assisting a person in committing prohibited conduct is also a violation of the law. (California Welfare & Institutions Code § 15610.30(a)-(c).)

If You Suspect Financial Abuse, We Can Help You

Financial elder abuse can take many forms, including overpaying for services such as home repairs, outright gifts of cash, telemarketing scams, or convincing an elder to invest in inappropriate or highly risky investments, such as annuities which yield little return to the elder, but pay high commission to the sales agent. If you suspect that you or a loved one has been a victim of financial elder abuse, contact The Casiano Law Firm for a confidential consultation.

Financial Elder Abuse Is a Growing Concern for California’s Growing Elderly Population

As the “boomer” generation ages, experts predict that the problem of financial elder abuse will boom as well. Incidents of elder abuse in California and across the nation are already becoming an issue of serious concern among lawmakers.

The California Department of Aging reports that by 2050, there will be 14.6 million Californians over the age of 60 and that between 2010 and 2020, there will be a 128% increase in the number of Californians in that age group. The report also states that San Diego County can expect a 96% increase in the number of residents over the age of 60 between 2010 and 2030.

Recent Headlines Highlight Financial Elder Abuse Problem

California news headlines are replete with recent incidents of financial elder abuse committed by financial institutions. Here are just a couple of examples of the egregious behavior that has been in the news recently. On February 4, the San Francisco Chronicle reported that a Bank of America customer service representative has been charged with stealing $61,000 from a 96-year-old woman after convincing her to allow him access to her accounts as her personal banker. On January 10, 2010, Investment News reported that a Financial Industry Regulatory Authority (FINRA) arbitration panel awarded a 95-year-old man $1.6 million after finding a Beverly Hills investment firm and two of its brokers guilty of self-dealing. The brokers convinced the man to leverage his equity in his home to make overly risky investments. (FINRA is an independent regulatory agency, empowered by the federal government to oversee securities and brokerage firms and protect investors.)

$2.6 in Annual Losses

According to a study released last year by the MetLife Mature Market Institute, the National Committee for the Prevention of Elder Abuse, and the Center for Gerontology at Virginia Polytechnic Institute and State University, financial elder abuse results in an annual loss of $2.6 billion. The study also found that that the people who commit the abuse are usually people in a position of trust, including family members and business professionals. Common types of financial elder abuse committed by business professionals included: false sales of and misrepresentations concerning stocks and other investments; and fraudulent banking practices including “account draining or siphoning.”

We Help Victims of Financial Elder Abuse

If you suspect that you or a loved one has been a victim of financial elder abuse, we can help you. Contact The Casiano Law Firm for a confidential consultation.

Nursing Home Abuse Occurs Even in Highly-Rated Facilities

A recent incident of nursing home abuse in California highlights how important is it for family members of nursing home patients to pay careful attention to their loved one's health. In particular, noting any unexplained bruising, change in medical condition, or change in mood is crucial to discovering any abuse or neglect that might be occurring.

A recent trial verdict awarded $7.75 million in compensatory and punitive damages to a family of Maria Arellano, a 71-year-old nursing home patient who had been severely abused by a nursing home employee. The facility where the victim resided, the Fillmore Convalescence Center, had been awarded a five-star rating from Medicare's Nursing Home Comparison. The fact that the facility received the highest possible rating demonstrates that nursing home abuse can occur in any facility, and family members must always be vigilant in looking for the often subtle signs that abuse is occurring.

Ms. Arellano had previously suffered a stroke that left her unable to verbally communicate. Her family members noticed she had bruises that could not be explained. After nothing was done in response to the family members' report to the facility management, they decided to place a hidden camera next to Ms. Arellano's bed. This revealed egregious abusive behavior, including pulling her by the hair, slapping her, bending her fingers, neck, and wrists, and treating her violently in general. Based on what was shown in the hidden camera video, the family filed a lawsuit and won the large verdict. The nursing home employee also pled no contest to criminal battery charges and is no longer working in the nursing home industry.

While one abusive employee does not necessarily mean that an entire facility is abusive towards its residents, it highlights a very important problem in discovering elder abuse: many victims are incapable of reporting the abuse themselves. This means that it is often up to the resident's family members to visit frequently and monitor their loved ones' health, and we encourage you to frequently check on your loved one and look for anything that might be amiss. If you have noticed a change in your loved one's physical or emotional condition and believe that your loved one might be a victim of elder abuse or neglect, we are here to help. Contact The Casiano Law Firm for a confidential consultation.

Use of Chemical Restraints in Nursing Homes

The Nursing Home Patients Bill of Rights (NHPBR) is a federal law that mandates the type of care nursing home patients, residing in nursing homes that receive Medicare or Medicaid, must receive. The NHPBR states under Title 42 Code of Federal Regulations 483.13, subsection (a) that nursing center residents have “the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.”

In a tragic case of nursing home abuse by nursing facility staff, three nursing center staff employees of Kern Valley Healthcare District violated the NHPBR and criminal statutes prohibiting elder abuse. The three staff members included the center’s one-time medical director, the former nursing director, and the former chief pharmacist. In a criminal complaint filed by the California Attorney General, it alleged that the nursing director administered these drugs to practically all the residents, except the most docile. The medical director allegedly approved the nursing director’s requests for medicating the residents. Additionally, the chief pharmacist complied with the requests for medication on the basis that the nursing director had experience working at psychiatric hospitals.

All three victims died unnecessarily. Fannie May Brinkley could have lived another couple years, but due to the anti-seizure drug, Depakote, she was given, and the lack of care by staff, she died. As for Joseph Shepter, he was given Depakote and two other drugs, and as a result lost 20 percent of his body weight. Thereafter, his health deteriorated, resulting in an infection and pneumonia; he eventually died as a result of his illness. As for Alexander Zaiko, he died after he was given Zyprexa, and Depakote.

In addition to these three residents, 20 other residents were given psychotropic drugs. Consequently, these individuals experienced numerous side effects, including severe weight loss, slurred speech, loss of cognition, tremors, and psychosis

The three nursing staff members are facing criminal charges, including charges for administering shots by force and without consent, and charges of assault with a deadly weapon.

NHPBR Protects Rights of Residents

The NHPBR has provisions that ensure the proper care of nursing home residents. Nursing facilities must have enough staff to make sure that residents have the highest practicable level of physical and mental well being. It also has provisions regulating pharmacists. Pharmacists are required to review the resident’s drug regimen periodically and report any irregularities in the resident’s drug regimen to the doctor or the nursing director.

Steps to Take if You Discover Elder Abuse

Besides contacting an attorney who is qualified and experienced in handling elder abuse cases, it is important to take immediate steps in preserving evidence that will later be useful. It is important to take photos of any noticeable physical injuries or conditions, writing down information about the incidents of abuse, and obtaining a copy of the medical chart from the nursing home.

The improper use of chemical restraints against nursing home residents is both wrong and criminally punishable. Although under reasonable circumstances a licensed physician may suggest chemical restraints after other methods have been exhausted, they cannot be used for the sake of convenience of the nursing staff. If someone you know and care about has been improperly restrained and injured as a result, contact an elder abuse lawyer immediately.

Governor Schwarzenegger Signs Elder Abuse Bills into Law

California Governor Arnold Schwarzenegger signed several bills designed to protect the elderly into law this week. The new laws provide a plan for the elderly in the event of a disaster and offer greater protection for the elderly from financial elder abuse. The following is a brief synopsis of these new laws:

Two bills targeting nursing home and residential care facilities were signed this week:AB 2370 is aimed at preventing nursing homes from hiking their rates without notice. The law requires residential care facilities to annually post information regarding recent rate increases, requires the disclosure of rate increase information to new residents, and, upon request, to requires the disclosure of rate increase information to prospective residents.

AB 749 is designed to protect the elderly in the event of a disaster or major power outage. The law requires residential care facilities to have a comprehensive emergency plan by March 1, 2009 that provides that the facility will be self-reliant if necessary for at least 72 hours. The plan must be available to residents and emergency personnel.

The following bills are designed to offer greater protection from physical abuse to the elderly and their families:

AB 2100 is designed to encourage people to come forward with suspicions of elder abuse. The law requires ombudspersons at long-term care facilities to report cases of alleged or suspected physical abuse, including sexual abuse, and financial abuse to the local district attorney’s office.

AB 225 applies to restraining orders issued in elder abuse cases. The law extends the protection of a restraining order to include named family members, household members and conservators of the elder abuse victim.

The following three bills are aimed at those who run scams targeting the elderly or are engaged in financial elder abuse:

SB 1136 makes it a misdemeanor to charge an “unconscionable fee” to qualify a person for a public social service benefit, including Medi-Cal.

AB 2149 regulates the use of “expertise” designations and requires advisors to take training courses before holding themselves out as having specialized knowledge regarding the financial needs of seniors. The bill is designed to prevent the elderly from falling prey to unscrupulous financial advisors who claim to be experts on financial planning for the elderly.

SB 1140 extends the statute of limitations for a claim for damages due to financial elder abuse to four years from the plaintiff discovers, or should have discovered, the abuse. Presently, the statute of limitations on such a claim is three years. In addition, the definition of financial abuse of an elder is expanded to include the action of taking, appropriating, obtaining or retaining, real or personal property by undue influence.

Thanks for reading my blog. If you suspect that a loved one has been the victim of physical, financial or sexual elder abuse, contact me for assistance.