ADVOCATING TO END ELDER ABUSE and Protect our Seniors!!!

One Response to "Guardianship Abuse - it's only a crime if caught"

2009-06-24T13:15:00.000-07:00

One Response to “Guardianship abuse - it’s only a crime if caught”

Elaine Renoire Says: February 10th, 2009 at 7:53 am

Unlawful and abusive guardianships are a growing national epidemic, threatening the personal and financial freedom of vulnerable and elderly people.

I appreciate this post and would like to see Citizens for Patient Dignity to do an in-depth series, because this is a danger people need to know about before they become insnared.

Guardianship wards are stripped of all rights: the right to decide where to live and whom to associate with, how to spend (or save!) one’s own money, accept or refuse medical treatment - or even ask for a second opinion, vote, marry, etc.

Most important, guardianship wards are stripped of the right to complain.
With the fox guarding the henhouse and the hens muzzled, guardians and their attorneys can easily unjustly enrich themselves at the expense and detriment of the very person they have been court-appointed to “protect”.

Visit NASGA at http://www.StopGuardianAbuse.org and the

NASGA blog at http://NASGA-StopGuardianAbuse.blogspot.com for more information.

Forewarned is forearmed!

Yours,

Elaine RenoireNASGA

THE WARNING SIGNS OF ADULT ABUSE

2009-06-24T12:24:00.000-07:00

The Warning signs of adult abuse

Physical
• Injury that has not been cared for properly
• Injury that is inconsistent with explanation for its cause
• Dehydration or malnutrition without illness-related cause
• Poor skin color
• Sunken eyes or cheeks
• Forced isolation

Behavioral
• Fear
• Anxiety, agitation
• Isolation, withdrawal
• Non-responsiveness, resignation, ambivalence
• Contradictory statements, implausible stories
• Hesitation to talk openly
• Confusion or disorientation
• Caregiver prevents vulnerable adult from speaking to or seeing visitors
• Caregiver’s lack of affection toward vulnerable adult
• Caregiver talks of vulnerable adult as a burden

Financial
• Expensive gifts from vulnerable adult to caregiver
• Vulnerable adult’s personal belongings, papers, credit cards missing
• Numerous unpaid bills
• A recent will when vulnerable adult seems incapable of writing will
• Caregiver’s name added to bank account
• Vulnerable adult unaware of monthly income
• Vulnerable adult signs on loan

HOW TO GET HELP

• For more information on adult abuse, go to www.okdhs.org and click on Adults.

Source: Adult Protective Services

DON'T IGNORE GRADMA'S GRIEF

2009-06-24T12:07:00.000-07:00

Don't ignore grandma's grief
By Patti Carmalt-Vener 06/04/2009

Dear Patti,

My husband and I recently moved into the area and we just love it. Because we’re semi-retired, we’re frequently home in the middle of the day when most of our neighbors are working. We barely know anyone in the neighborhood yet and don’t want to be labeled as troublemakers, but we have witnessed something that we’re both uncomfortable with.
Our neighbors, who live across the street and one house down from us, have an elderly grandmother who lives with them. We’ve heard that the couple has another family member taking care of her while they’re working. A couple of weeks ago we saw the caregiver yelling loudly and harshly at this frail-looking old lady who didn’t say anything back; she just looked down at the sidewalk and kept walking very slowly. Two days ago, while I was gone, my husband witnessed a similar incident. He thought the elderly lady looked sad and he wants to do something. It’s not that I disagree, but we never saw this individual call names, threaten, shove or hit the grandmother, and we didn’t see any bruises on her, so I don’t want to overreact. If I heard a nanny yell at a child I don’t know that I’d call it child abuse, so I’m just a little unsure what is elder abuse and when it’s appropriate to do something. We wanted your opinion on how to handle this.

—Mr. and Mrs. Smith

Dear Mr. and Mrs. Smith,

If you suspect this elderly grandmother is being mistreated or spoken to in a way that causes her emotional pain or distress, you should immediately contact the Adult Protective Services hotline at (877) 477-3646 and let them professionally investigate. When you talk to the social worker, give your concerns in detail, telling exactly what you witnessed regarding actions of the companion and reactions of the senior. You can make the report anonymously or, if you so choose — and I know it may be difficult — you can explain to your neighbors that you made the report out of loving concern for their family and their grandmother. While they may be upset because you didn’t just talk to them about what you observed, abuse against elders is often subtle and the distinction between normal interpersonal stress and abuse isn’t always easy to discern. It may sound extreme, but I think your only choice in this situation is to make sure that if a problem exists it won’t be ignored.

As elders become more physically frail, they’re less able to stand up to bullying or intimidation. They may not see, hear or think as clearly as they used to, leaving them vulnerable to financial exploitation, sexual abuse, abandonment, neglect and emotional trauma. The demands of their mental and physical problems can be overwhelming and frustrating for those in charge of their daily care, especially when the caretakers haven’t had proper training and are unskilled at how to take care of their own needs as well the person they’re responsible for.

Elder abuse is never an acceptable response to any situation. No matter how difficult and dependent, the elderly need to be free from harm by those who care for them.

Every year an estimated 2.1 million older Americans are victims of physical and psychological abuse and neglect. You’re not being a busybody neighbor by speaking up and protecting someone who may possibly be unable to defend herself. It’s not an easy thing to do, but it’s the responsibility of all of us to protect those who can’t protect themselves.

Please don’t hesitate or put off doing the right thing.

Patti Carmalt-Vener, a faculty member with the Southern California Society for Intensive Short Term Psychotherapy, has been a psychotherapist in private practice for 23 years and has offices in Pasadena, Santa Monica and Canoga Park.

Contact her at (626) 584-8582 or

visit
www.patticarmalt-vener.com

BEWARE OF ELDERLY FINANCIAL ABUSE

2009-06-24T11:51:00.000-07:00

Beware of Elderly Financial Abuse
June 1st, 2009

According to financial-planning.com, “elder financial abuse costs older Americans more than $2.6 billion per year and is most often perpetrated by family members and caregivers, according to a new report released by the MetLife Mature Market Institute. The study indicates that for each case of abuse reported, there are an estimated four or more that go unreported. Family members and caregivers are the culprits in 55 percent of cases; financial losses are higher with investment fraud scams”.

Why are the elderly such high profile targets? One word: money. It should be no surprise that the 65 years and older households have a significantly higher proportion of households at the upper net worth level (43 percent have a household net worth of $100,000 or higher), according to various demographic studies, more than all other age-based household categories combined.

So, given what we know, what might be the next (financial abuse) shoe to drop? I believe it could be variable annuity sales abuses that pay ultra-high commissions to would-be predatory financial carnivores and in many cases unnecessarily tie up an older investor’s funds in an underperforming, high-fee insurance product masquerading as a prudent investment opportunity.

Do not get me wrong, insurance within itself is a necessity for practically everyone and an annuitized income stream could be just what the doctor ordered for a retired individual; however, insurance intended to replace tried and true investment securites (certificates of deposit, money market funds, bonds, stocks and mutual funds held outside an annuity), too much insurance without any consideration of an individual’s unique situation, and/or insurance sold to a retiree (whether an annuity or not) for the sake of achieving large sums of commissions for a financial professional when there are other lower fee and higher performance investment alternatives readibly available are a real concern.

In fact, I had an extensive conversation a few years back at the Tulsa Press Club following a Page One luncheon with Oklahoma Insurance Commissioner, Kim Holland, which suggested that the next big focus (in Oklahoma and nationally) might indeed be on unscrupulous variable annuity sales practices against the elderly.

Incidentally, in February 2009, Ms. Holland and the Oklahoma Insurance Commission issued an emergency cease and desist order against American Senior Estate Services and two of its representatives for attempting to sell insurance products in Oklahoma without an insurance license and for using “fraudulent” and “dishonest” business practices. The Plano, Texas-based organization had recently attempted to solicit insurance products in Ardmore by telephoning local senior citizens and falsely implying the seniors’ attorneys had hired the company to review their trusts. The company would then attempt to set up appointments with the seniors and pitch insurance annuity products.

Some say that getting older is hard, so why does the insurance and investment arena need to make it more so? It does not have to be like that!

Tags: National Events · Oklahoma City · Personal Finance · Tulsa · Wall Street

Elder PEACE-Dedicated to Elder Abuse Prevention, Education, Advocacy, Collaboration

2009-06-24T10:42:00.000-07:00

Elder PEACE

Dedicated to Elder Abuse Prevention, Education, Advocacy, Collaboration

The voices of elder abuse victims are often hushed by isolation, fear and shame. Our citizens’ action group, Elder PEACE, is channeling the voices of those who have been personally affected by elder abuse. Victims, their families and others are working together to advocate for legislation that increases the health and safety of vulnerable seniors.

Click links below to view ideas and factsheets for raising awareness in your community

Educating Your Legislators

Elder Abuse Professionals work hard to advocate for legislation, programs and services for elder abuse victims. However, unless legislators also hear from us, their constituents, they will not perceive these issues as being important. Once legislators hear the voices of their constituents raised in unison with those of the professionals in the field, they will listen. Now more than ever, the professionals need us to be partners in their advocacy efforts with the legislators.

We can successfully change government policies and funding through our grassroots advocacy efforts.

As a constituent, your opinion matters to your public representatives. Elder PEACE encourages you to contact your Senator and Representative’s office to let them know that elder abuse is important to you, and that as your representatives you expect them to take action to stop this growing crime.

Thank you to Lori Delagrammatikas, M.S.W., for your contributions to these webpages!

Guide to Preparing for Legislative Visits (MS Word doc)
Factsheet for Legislators (MS Word doc)
Factsheet – Elder Abuse in California (MS Word doc)

Things You Can Do in Your Community

Anyone can act to improve the safety of elders in their community and raise awareness about the problem of elder abuse. Here are some ideas.

10 Things Anyone Can Do (MS Word doc)
Community Factsheet - “Elder Abuse Prevention” (MS Word doc, 2 legal size pages)

Is Elder Abuse A Crime?

2009-06-23T17:35:00.000-07:00

Is Elder Abuse a Crime?

Most physical, sexual, and financial/material abuses are considered crimes in all states insofar as these acts violate statutes prohibiting crimes such as assault, battery, rape, theft, etc.

In addition, depending on the perpetrators' conduct and intent, and the consequences for the victim, certain emotional abuse and neglect cases are subject to criminal prosecution.

State criminal statutes, adult protective laws, and federal statutes such as Medicare define and establish penalties for abuse, neglect, and exploitation of vulnerable adults.

Prosecution of perpetrators is rare, however, and may be hampered by several factors including victims' fear of retaliation, hesitancy to prosecute family members, or lack of capacity to describe the crime or perpetrator.

While there has been some increase in cases prosecuted (particularly in the area of nursing home abuse largely due to aggressiveness of Medicaid Fraud Units), justice for elder abuse victims requires continued specialized training for police officers and other first responders, district attorneys, victim/witness professionals, lawyers, and the courts.

Recent Developments

Efforts are underway by the criminal justice system to improve response to elder abuse.

Here in brief are some recent developments:

State Attorney General Offices and District Attorneys are setting up specialized elder abuse investigation and prosecution units.

Communities are creating multidisciplinary teams (MDTs or M-Teams) composed of professionals from law enforcement, ombudsman, health, and adult protective services to collaborate on elder abuse cases.

Fatality (forensic) review teams are being created to identify and respond to suspected cases of abuse.

Fiduciary abuse specialist teams (FASTs) involving accountants, FBI, insurance claims detectives, and other specialists are playing an increasing important role in pursuing financial abuse cases.

Links to More Information

Information about Laws Related to Elder Abuse

Changing Role of the Courts in Elder Abuse Cases
By Lori A. Stiegel, American Bar Association Commission on Law and Aging

Criminology, Law Enforcement, Elder Abuse, and Senior Victimization (December 2007)
This annotated bibliography highlights research and scholarly articles that examine the criminological aspects of the victimization of older individuals. Investigative and training references, and resources that profile victim and offender characteristics are among the topics featured.

Elder Justice Act-Statement of Principles

2009-06-23T17:27:00.000-07:00

Statement of Principles:

Every older person has the right to be free of abuse, neglect, and exploitation

Victims of elder abuse need to have their voices heard and issues addressed.

An adequate public-private infrastructure and resources need to be in place to prevent, detect, treat, understand, intervene in and, where appropriate, prosecute elder abuse, neglect, and exploitation.

Elder Protection

We all have basic rights that must be protected, therefore:

Preventative measures should be in place at the community level to protect at-risk elders.

Technical, investigative, coordination, and victim assistance resources should be available to law enforcement and others to support elder justice cases.

"Safe havens" should be created for seniors who are not safe where they live.

Programs that focus on the special needs of at-risk elders must be developed.

Awareness of Elder Justice Issues

In order to identify and address elder justice issues, we need more and better information from numerous resources:

An Elder Justice Resource Center and Library should provide information for consumers, advocates, researches, policy makers, providers, clinicians, regulators and law enforcement officials.*

A national data repository should collect data about elder abuse, neglect, and exploitation to increase the knowledge base of elder justice issues and inform those that work in this field.

Enhance and promote information from research and clinical practice, and broadly disseminate information on training and services.

Tools to train health professionals in both forensic pathology and geriatrics, and to train public health, social service, and law enforcement officials to detect and combat elder abuse, neglect and exploitation.

Public responsibility and Accountability

It is the government's responsibility to help create systems to ensure elder justice.

The government should:

Create authority to provide programmatic, grant-making, policy and technical assistance related to elder justice.

Create a council to coordinate activities of all relevant federal agencies, states, communities, and private and not-for-profit entities.

Adequately fund these critical programs and responsibilities.

The Elder Justice Act

2009-06-23T17:20:00.000-07:00

The number of older Americans is fast growing, and so is the problem of elder abuse, neglect and exploitation.

This often invisible treatment is among the gravest issues facing millions of American families.

The Elder Justice Act would provide federal resources to support State and community efforts on the front lines dedicated to fighting elder abuse with scarce resources and fragmented systems.

From a social perspective, elder justice means assuring adequate public-private infrastructure and resources to prevent, detect, treat, understand, intervene in and, where appropriate, prosecute elder abuse, neglect and exploitation.

From an individual perspective, elder justice is the right of every older person to be free of abuse, neglect and exploitation.

The Elder Justice Act would promote both aspects of elder justice with the following provisions:

Elevate elder justice issues to a national attention.

Creation of:

(1) Offices of Elder Justice at the Departments of Health and Human Services and Justice to serve programmatic, grant-making, policy and technical assistance functions relating to elder justice,

(2) a public-private and a Coordinating Council to coordinate activities of all relevant federal agencies, States, communities and private and not-for-profit entities, and

(3) a consistent funding stream and national coordination for Adult Protective Services (APS).

Improving the quality, quantity and accessibility of information.

An Elder Justice Resource Center and Library will provide information for consumers, advocates, researchers, policy makers, providers, clinicians, regulators and law enforcement and prevent "re-inventing" the wheel.

A national data repository also will be developed to increase the knowledge base and collect data about elder abuse, neglect and exploitation.
Increasing knowledge and supporting promising projects.

Given the paucity of research, Centers of Excellence will enhance research, clinical practice, training and dissemination of information relating to elder justice.

Priorities include a national incidence and prevalence study, jump-starting intervention research, developing community strategies to make elders safer, and enhancing multi-disciplinary efforts.

Developing forensic capacity.
There is scant data to assist in the detection of elder abuse, neglect and exploitation.
Creating new forensic expertise (similar to that in child abuse) will promote detection and increase expertise.

New programs will train health professionals in both forensic pathology and geriatrics.

Victim assistance, "safe havens," and support for at-risk elders.

Elder victims' needs, which are rarely addressed, will be better met by supporting creation of "safe havens" for seniors who are not safe where they live and development of programs focusing on the special needs of at-risk elders and older victims.

Increasing prosecution.
Technical, investigative, coordination, and victim assistance resources will be provided to law enforcement to support elder justice cases.
Preventive efforts will be enhanced by supporting community policing efforts to protect at-risk elders.

Training.
Training to combat elder abuse, neglect and exploitation is supported both within individual disciplines and in multi-disciplinary (such as public health-social service-law enforcement) settings.

Special programs to support underserved populations including rural, minority and Indian seniors.

Model State Laws and Practices.
A study will review state practices and laws relating to elder justice.

Increasing Security, Collaboration, and Consumer Information in Long-Term Care.

Improving prompt reporting of crimes in long-term care settings

Criminal background checks for long-term care workers

Enhancing long-term care staffing

Information about long-term care for consumers through a Long-Term Care Consumer Clearinghouse

Promoting accountability through a new federal law to prosecute abuse and neglect in nursing homes

Evaluations and accountability. Provisions to determine "what works" and assure funds are properly spent.

VICTIMS OF GUARDIANSHIP ABUSE

2009-06-23T16:09:00.000-07:00

WHAT YOU NEED TO KNOW ABOUT UNLAWFUL AND ABUSIVE GUARDIANSHIPS/CONSERVATORSHIPS:

Many lawyers write articles suggesting advance directives, including a Durable Power of Attorney ("durable," meaning it remains in effect after a person becomes incapacitated).

Question: But what if you wind up in front of a corrupt judge who ignores the grantor's wishes? Answer: He can override any legal document executed by the AIP ("alleged incapacitated person.")

(Note: The person is only "alleged" to be incapacitated until they are legally adjudged to be incapacitated; then they are described as the "ward." They are actually wards of the State.

Question: Aren't there any safeguards against that?
Answer: That's up to your state legislators and prosecutors. An honest judge will hold a full evidentiary hearing to determine the validity of the prior Durable Power of Attorney - the issue being whether the AIP was incapacitated at the time of execution. A corrupt judge will not hold any hearing; he/she will just ignore the Power, and sometimes invalidate (with a stroke of the pen) even a Last Will and Testament, putting all sorts of liberties in the hands of the fiduciaries.

Question: Why would a judge do that?
Answer: By unlawfully overriding the powers granted, he can then put his academic or political buddies into the guardianship, to make-work and feast on fees.

Question: What is the quid pro quo; i.e., what's in it for him/her?
Answer: That we will not know until the prosecutors start prosecuting judicial corruption in a meaningful way.

Question: Do you know what your rights are?
Answer: IF YOU DON'T KNOW YOUR RIGHTS, YOU DON'T HAVE ANY!
THE GUARDIANSHIP PROBLEM IS NOT CONFINED TO ANY ONE STATE; the UNLAWFUL PROCEEDINGS and resultant FEEDING FRENZIES are rampant all across the country - anywhere there is money to be made!

Who gave lawyer-guardians a "License to Steal"?
The legislators did! And they gave them a shocking list of powers - including life/death decisions!

THE PROBLEM WITH GUARDIANSHIP - (This site was launched due to an unlawful guardianship experience in NY State, but is fairly typical of corrupt guardianships/conservatorships across the country.)

Some people have described it as a "bounty hunting" operation, with headhunters running computer searches for financial and personal data on potential victims who wind up in a hospital and transfer to a nursing home (whether by reason of illness or even just a fall on the sidewalk).

The nursing home lawyer or someone else then petitions for a guardianship. The assigned judge then distributes his patronage to his pals, in the form of fiduciary appointments as guardian, court evaluator, counsel to the AIP, etc.
Would it shock you to learn that there is no requirement in New York for mandatory counsel to represent a person believed to be incapacitated? It won't when you read on. Many adjudication "hearings" are held which are totally sham, replate with constitutional due process violations, and conducted in complete contravention of statutory protections promulgated by the states, and practice rules issued by the courts.

Who's supposed to watch the guardians?
The judges.
Who's been watching the judges? NO ONE!

Here's what we learned about guardianship in New York:
In January 1999, the New York Law Journal ran the following story:
"A THREE-YEAR crackdown on court examiners appointed to monitor the work of guardians for incapacitated persons has resulted in the removal of five examiners and the resignations of two others."

(Note: The investigation began sometime in 1995 or 1996.)

In 2001 the New York Daily News ran a series on guardianship abuse, aptly entitled "Milking the Helpless," which began with this headline:
"Attorneys are siphoning off millions from the elderly they have sworn to protect." May 20, 2001, pg. 1."

Click here for an example of abusive legal fee billing, (in violation of fiduciary rules)

(Isn't lawyer overbilling, billing for unnecessary services or billing "legal-fee" rates for services not required to be performed by a lawyer, the same as stealing?
You can't blame people for being dishonest when they know they aren't being watched. In fact, isn't overbilling one of the major causes of consumer dissatisfaction with lawyers?)
The publicity led to public hearings by a specially appointed Commission and an investigation by a newly appointed Special Inspector General (SIG) for Fiduciary Appointments.
The Commission report was issued in December 2001.
The SIG report was also issued in December 2001.
Neither report named names. Several judges left the bench rather than face charges.
The result?
New rules for fiduciary appointments, and a computerized system to track appointments and fee awards.

Click here for state court website; then click your "back " button to return.)

(You must use Internet Explorer as your browser to access the court website.)
This, almost 10 years after the "Crackdown on Court Examiners" began!

But who's really responsible? Here's the list:

* The organized bench and bar and their self-policing organizations, which don't seem to care how low they are sinking in the public esteem, and who punish the lawyer whistleblowers; * the corrupt judges - for perverting the law and not supervising the guardians properly. * the court examiners for being too greedy and refusing to do their work; * the appellate divisions - for not overseeing the court evaluators; * the Office of Court Administration - for not monitoring everything; * the legislators, for not holding oversight hearings and putting teeth in the guardian statutes; and * the executive branch (law enforcement), for not prosecuting complaints against lawyers and judges.

(Note: A recent AP report shows most Americans are convinced that political corruption is a deeply rooted problem, and that "people have a real distrust of their government.")

In February 2005 the Birnbaum Commission issued an updated report - with guess what recommendations?

"The Commission recommends establishing offices of `court examiner specialists' within the court system to monitor court examiner performance, review work product, ensure that all required accountings are being timely filed and expeditiously examined, and target cases that are out of compliance."

(Note: The various appellate divisions were supposed to be doing that in 1999!)

"The Commission also would support bringing the court examiner function in-house.
"The Commission recommends that the court system explore, initially on a limited or pilot basis, the viability of outsourcing the court examiner function to interested and appropriate outside nonprofit organizations.
"The Commission recommends that the Appellate Divisions adopt regular evaluation and reappointment systems for court examiners.
"The Commission recommends that the court system maintain strong internal controls and continue its efforts to develop an active and vigorous auditing system that deters wrongdoing and laxity."

(Note: This, six years after publication of "Crackdown on Court examiners"!)

More Money?
"The Commission recommends that the Appellate Divisions consider adjusting court examiner fees, which have not been increased since 1991, to help attract and retain competent court examiners. The Commission recommends that the Part 36 annual compensation limit be raised from $50,000 to $75,000 for court examiners."
What conclusion can we come to other than that there is obviously still no meaningful oversight, that they won't stop the bleeding, and that the fees are going up, up, up while the assets go down, down, down?
Wasn't the guardianship law supposed to PROTECT the assets of the AIP? This is surely a good law gone bad!

Click here for an example of a PROCEDURALLY UNLAWFUL GUARDIANSHIP (involving violation of constitutional protections, statutes, rules, and controlling authority)

Seeing the numerous violations, you must wonder whether that judge is simply incompetent or extremely corrupt! In addition to noncompliance with law as in the above example, there are other more nefarious tricks in use by the "bad guys."

Here's one of them: Intimidating Family Members:
When a family member petitions to be appointed as a guardian, the unethical lawyers (particularly those who make "guardianship" their prime business) will submit affidavits (or affirmations under penalty of perjury) in which they make "conclusory" statements maligning the family member(s), claiming they are not fit to be appointed as guardian.
"Conclusory statements" are those which are merely unproven allegations not supported by real evidence.
As a matter of law, they cannot stand alone, but must be subjected to an evidentiary hearing at which the accuser can be cross-examined, in order to determine their truth or falsity.
The corrupt judge, instead of holding such a "due-process" hearing where both sides can be heard, under oath (with or without a jury), simply accepts the conclusory statements and appoints a lawyer (or retired judge) instead - usually a law school buddy or a political crony.

(This is a violation of due process.)
Our investigation of court records disclosed that the "family blame game" is a popular modus operandi in use by unethical lawyers. When family members don't know their rights or how to legally oppose false allegations, the guardianship perps are left free to acquire the ward's assets for themselves, assisted by the corrupt judge, who will pervert the law rather than obey and apply it properly.
The Internet and more lately, the media, have made the public aware of just how bad the "justice" system is, but we're still getting only "lip service" from the powers-that-be about the loss of public trust in the integrity of the courts, with no meaningful change.

Question: Do you know why lawyer-legislators won't clean up the acts of their judiciary brethren?
Answer: They're afraid they may have to appear before them some day! Put the blame where it belongs - on everyone on the list above - all of whom do nothing meaningful to clean up the VERY SICK system.

How can these people permit such an outrage to continue all this long time, after so many individual complaints and the attendant media exposure?

THEY ARE ALL PLAYING DEAD, HOPING THE ROOF WON'T FALL IN!

This Should be in Ripley's Believe it or Not:
THERE IS A HIDDEN CONSEQUENCE OF THESE BAD GUARDIANSHIPS, WHICH IS SO IRONIC AS TO BE ALMOST UNBELIEVABLE:

THE VERY LAW WHICH WAS SUPPOSED TO PROTECT THE WARDS AND THE PUBLIC HAS BEEN SO PERVERTED THAT IT IS USED TO ABUSE THE WARDS AND HAS PLACED AN UNWANTED BURDEN ON THE PUBLIC!

The historical purpose of guardianship - or "lunatic proceedings" as they were long ago known - was for a conservator (now "guardian" or "conservator") to protect the alleged IP's person and property, and to keep the IP from becoming a public charge - this, under the police power of the state. The police power of the state arises from its duty to protect its citizens - "parens patriae"! Those adjudged (see below) to be incapacitated become wards of the State.

Is the law being served? In a word - "no"!

Lack of oversight - and growing corruption in the system have actually brought about a totally different result.

What Happens When the Money's Gone? The greedy, unethical guardian, after bleeding out the estate (whether through unnecessary and excessive legal fees or by outright theft), petitions the court to withdraw. How many bad guardians do you think have any sense of duty or obligation to stay on the assignment pro bono, without getting paid, when there is no money left?

THE WARD, WHOSE ASSETS HAVE DISAPPEARED, (AND FREQUENTLY, ALL THEIR PERSONAL PROPERTY AS WELL), NOW NEWLY INDIGENT,
IS FORCED INTO THE MEDICAID SYSTEM
AND HAS NOW IN FACT BECOME A PUBLIC CHARGE - AT TAXPAYER EXPENSE! (THE VERY THING THE LAW IS SUPPOSED TO PREVENT!)

Have you been victimized by a guardianship proceeding? Has the court provided due process of law?

AND NOW FOR THE $64,000 QUESTION:
Was the AIP ever truly "adjudged" incapacitated according to law, or has the entire process been a sham? Did the court actually have what we call statutory jurisdiction?
Was the "clear and convincing" evidence standard applied? The lawyers know, but they won't tell you! In your experience, have the fees charged been "reasonable?
Have all assets been properly accounted for?
If there's a Will, is it filed in court for safekeeping, or has it been hidden or altered?

Do you know?

Have you ever tried to get a prosecutor to investigate a lawyer or judge - and just been ignored?

Have you ever complained to a chief judge or administrator and gotten a boilerplate reply:
"If you don't like the decision, you can appeal or file a grievance"?

Have you ever tried to file an appeal or judicial or attorney grievance?
Was it dismissed, in a word, with nothing more? Have your individual pleas fallen on deaf ears?

Welcome to the Club - You have experienced JUDICIAL CORRUPTION!!!

Reform will never come from within the system unless and until there is a huge public outcry.
If you want reform, you have to work at it.
Together, we can see to it that the runaway guardianships end.
Did you know that now even minors with personal injury awards are targeted for guardianship (with the same asset depletion as the vulnerable elderly)?
We must protect them, their families, and the UNWARY TAXPAYERS.
If the states don't clean up their own acts, we must seek federal intervention to ensure that the laws will work as originally intended.

An Open Letter to Dr. Scott Nystrom, Ph.D, Exec. Dir.,
White House Conference on Aging,
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Write to Dr. Nystrom with your comments;
cut and paste a copy into a message to us.-->

CONTACT US:

VICTIMS OF GUARDIANS/CONSERVATORS (and Other Fiduciaries)

EMAIL: info@VictimsOfGuardians.net (Email attachments are not accepted)

REFERENCE LINKS: (Please report any dead links)

WHCoA Resolutions (See #19 and 20)

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2001 Report of the Commission on Fiduciary Appointments

2001 Special Inspector General's Report

2004 Grand Jury Report

2005 Report of the Birnbaum Commission on Fiduciary Appointments

NYS Guardian & Fiduciary Services

NYS Courts General Index

PROUD MEMBER OF THE "NEW" NASGA National Association to STOP Guardian Abuse STOPGuardianAbuse.org

http://nasga-stopguardianabuse.blogspot.com

OTHER LINKS:-->

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VictimsOfGuardians operates in the public interest.

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CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15750-15766

2009-06-23T15:23:00.000-07:00

CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15750-15766

15750. The definitions contained in Chapter 11 (commencing with
Section 15600) shall govern the construction of this chapter.

15751. Each county welfare department shall establish and support a
system of protective services to elderly and dependent adults who
may be subjected to neglect, abuse, or exploitation, or who are
unable to protect their own interest.
This system shall be known as the county adult protective services
system.

15752. Each county shall establish and maintain a specialized
entity within the county welfare department which shall have lead
responsibility for the operation of the adult protective services
program.

15754. (a) Notwithstanding any provision of law governing the
disclosure of information and records, persons who are trained and
qualified to serve on multidisciplinary personnel teams may disclose
to one another information and records which are relevant to the
prevention, identification, or treatment of abuse of elderly or
dependent persons.
(b) Except as provided in subdivision (a), any personnel of the
multidisciplinary team that receives information pursuant to this
chapter, shall be under the same obligations and subject to the same
confidentiality penalties as the person disclosing or providing that
information. The information obtained shall be maintained in a
manner that ensures the maximum protection of privacy and
confidentiality rights.

15755. A law enforcement agency may seek a search warrant from a
magistrate pursuant to the procedures set forth in Chapter 3
(commencing with Section 1523) of Title 12 of Part 2 of the Penal
Code to enable a peace officer to have access to, and to inspect,
premises if a county welfare worker has been denied access to the
premises by the person or persons in possession of the premises and
there is probable cause to believe an elder or dependent adult on
those premises is subject to abuse. While executing the search
warrant the peace officer may allow a county welfare worker, or any
other appropriate person, to accompany him or her.

15760. Adult protective services shall include investigations,
needs assessments, remedial and preventive social work activities;
the necessary tangible resources such as food, transportation,
emergency shelter, and in-home protective care; the use of
multidisciplinary teams; and a system in which reporting of abuse can
occur on a 24-hour basis.

15762. When an allegation of abuse of an elder or dependent adult
is reported to a county designated adult protective service agency
and an agency social worker has reason to believe an elder or
dependent adult has suffered or is at substantial risk of abuse
pursuant to Section 15630, the social worker shall attempt to obtain
consent to enter and meet privately with the elder or dependent adult
about whom the report was made in the residence or dwelling in which
the elder or dependent adult resides without the presence of the
person's caretaker, attendant, or family or household member, unless
the person requests the presence of the attendant, care giver, or
family member, or refuses to meet with the social worker.

15763. (a) Each county shall establish an emergency response adult
protective services program that shall provide in-person response, 24
hours per day, seven days per week, to reports of abuse of an elder
or a dependent adult, for the purpose of providing immediate intake
or intervention, or both, to new reports involving immediate life
threats and to crises in existing cases. The program shall include
policies and procedures to accomplish all of the following:
(1) Provision of case management services that include
investigation of the protection issues, assessment of the person's
concerns, needs, strengths, problems, and limitations, stabilization
and linking with community services, and development of a service
plan to alleviate identified problems utilizing counseling,
monitoring, followup, and reassessment.
(2) Provisions for emergency shelter or in-home protection to
guarantee a safe place for the elder or dependent adult to stay until
the dangers at home can be resolved.
(3) Establishment of multidisciplinary teams to develop
interagency treatment strategies, to ensure maximum coordination with
existing community resources, to ensure maximum access on behalf of
elders and dependent adults, and to avoid duplication of efforts.
(b) (1) A county shall respond immediately to any report of
imminent danger to an elder or dependent adult residing in other than
a long-term care facility, as defined in Section 9701 of the Welfare
and Institutions Code, or a residential facility, as defined in
Section 1502 of the Health and Safety Code. For reports involving
persons residing in a long-term care facility or a residential care
facility, the county shall report to the local long-term care
ombudsman program. Adult protective services staff shall consult,
coordinate, and support efforts of the ombudsman program to protect
vulnerable residents. Except as specified in paragraph (2), the
county shall respond to all other reports of danger to an elder or
dependent adult in other than a long-term care facility or
residential care facility within 10 calendar days or as soon as
practicably possible.
(2) An immediate or 10-day in-person response is not required when
the county, based upon an evaluation of risk, determines and
documents that the elder or dependent adult is not in imminent danger
and that an immediate or 10-day in-person response is not necessary
to protect the health or safety of the elder or dependent adult.
(3) The State Department of Social Services, in consultation with
the County Welfare Directors Association, shall develop requirements
for implementation of paragraph (2), including, but not limited to,
guidelines for determining appropriate application of this section
and any applicable documentation requirements.
(4) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall implement the requirements developed pursuant to
paragraph (3) by means of all-county letters or similar instructions
prior to adopting regulations for that purpose. Thereafter, the
department shall adopt regulations in accordance with the
requirements of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
(c) A county shall not be required to report or respond to a
report pursuant to subdivision (b) that involves danger to an elder
or dependent adult residing in any facility for the incarceration of
prisoners that is operated by or under contract to the Federal Bureau
of Prisons, the Department of Corrections, the California Department
of the Youth Authority, a county sheriff's department, a county
probation department, a city police department, or any other law
enforcement agency when the abuse reportedly has occurred in that
facility.
(d) A county shall provide case management services to elders and
dependent adults who are determined to be in need of adult protective
services for the purpose of bringing about changes in the lives of
victims and to provide a safety net to enable victims to protect
themselves in the future. Case management services shall include the
following, to the extent services are appropriate for the
individual:
(1) Investigation of the protection issues, including, but not
limited to, social, medical, environmental, physical, emotional, and
developmental.
(2) Assessment of the person's concerns and needs on whom the
report has been made and the concerns and needs of other members of
the family and household.
(3) Analysis of problems and strengths.
(4) Establishment of a service plan for each person on whom the
report has been made to alleviate the identified problems.
(5) Client input and acceptance of proposed service plans.
(6) Counseling for clients and significant others to alleviate the
identified problems and to implement the service plan.
(7) Stabilizing and linking with community services.
(8) Monitoring and followup.
(9) Reassessments, as appropriate.
(e) To the extent resources are available, each county shall
provide emergency shelter in the form of a safe haven or in-home
protection for victims. Shelter and care appropriate to the needs of
the victim shall be provided for frail and disabled victims who are
in need of assistance with activities of daily living.
(f) Each county shall designate an adult protective services
agency to establish and maintain multidisciplinary teams including,
but not limited to, adult protective services, law enforcement,
probation departments, home health care agencies, hospitals, adult
protective services staff, the public guardian, private community
service agencies, public health agencies, and mental health agencies
for the purpose of providing interagency treatment strategies.
(g) Each county shall provide tangible support services, to the
extent resources are available, which may include, but not be limited
to, emergency food, clothing, repair or replacement of essential
appliances, plumbing and electrical repair, blankets, linens, and
other household goods, advocacy with utility companies, and emergency
response units.

15764. Notwithstanding Section 10101.1, a county shall have no
share of any nonfederal expenditures above the required expenditures
for this program in the 1996-97 fiscal year, provided that the county
has maintained the level of county matching funds it provided for
this program in the 1996-97 fiscal year.

15765. This chapter shall become operative on May 1, 1999.
Commencing with the 1999-2000 fiscal year, Sections 15760 to 15764,
inclusive, shall be implemented only to the extent funds are provided
in the annual Budget Act.

15766. The investigation of allegations of elder and dependent
adult abuse pursuant to this chapter, and the case management of
elder and dependent adult abuse cases shall be performed by county
merit systems civil service employees. A county adult protective
service agency may utilize a contracted private or nonprofit
telephone answering service after normal working hours and on
weekends and holidays. Such a contracted telephone service shall
immediately forward to a county merit systems civil service employee
any report of abuse or neglect of an elder or dependent adult, unless
the caller is: (a) requesting routine information only; (b)
reporting an incident of abuse which occurred prior to the date of
the call, which does not at the time of the call put the victim at
risk; or (c) requesting information not related to the adult
protective service program, and the person answering the telephone
meets the standards established by the department.

CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 4900-4906

2009-06-23T15:15:00.000-07:00

CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 4900-4906

4900. (a) The definitions contained in this section shall govern
the construction of this division, unless the context requires
otherwise. These definitions shall not be construed to alter or
impact the definitions or other provisions of the Elder and Dependent
Adult Civil Protection Act (Chapter 11 (commencing with Section
15600), or Chapter 13 (commencing with Section 15750), of Part 3 of
Division 9.
(b) "Abuse" means an act, or failure to act, that would constitute
abuse as that term is defined in federal regulations pertaining to
the authority of protection and advocacy agencies, including Section
51.2 of Title 42 of the Code of Federal Regulations or Section
1386.19 of Title 45 of the Code of Federal Regulations. "Abuse" also
means an act, or failure to act, that would constitute abuse as that
term is defined in Section 15610.07 of the Welfare and Institutions
Code or Section 11165.6 of the Penal Code.
(c) "Complaint" has the same meaning as "complaint" as defined in
federal statutes and regulations pertaining to the authority of
protection and advocacy agencies, including Section 10802(1) of Title
42 of the United States Code, Section 51.2 of Title 42 of the Code
of Federal Regulations, or Section 1386.19 of Title 45 of the Code of
Federal Regulations.
(d) "Disability" means a developmental disability, as defined in
Section 15002(8) of Title 42 of the United States Code, a mental
illness, as defined in Section 10802(4) of Title 42 of the United
States Code, a disability within the meaning of the Americans with
Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), as defined
in Section 12102(2) of Title 42 of the United States Code, or a
disability within the meaning of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code), as defined in subdivision (i) or
(k) of Section 12926 of the Government Code.
(e) "Facility" or "program" means a public or private facility or
program providing services, support, care, or treatment to persons
with disabilities, even if only on an as-needed basis or under
contractual arrangement. "Facility" or "program" includes, but is
not limited to, a hospital, a long-term health care facility, a
community living arrangement for people with disabilities, including
a group home, a board and care home, an individual residence or
apartment of a person with a disability where services are provided,
a day program, a juvenile detention facility, a homeless shelter, a
jail, or a prison, including all general areas, as well as special,
mental health, or forensic units. The term includes any facility
licensed under Division 2 (commencing with Section 1200) of the
Health and Safety Code and any facility that is unlicensed but is not
exempt from licensure as provided in subdivision (a) of Section
1503.5 of the Health and Safety Code. The term also includes a
public or private school or other institution or program providing
education, training, habilitation, therapeutic, or residential
services to persons with disabilities.
(f) "Legal guardian," "conservator," or "legal representative,"
means a person appointed by a state court or agency empowered under
state law to appoint and review the legal guardian, conservator, or
legal representative, as appropriate. With respect to an individual
described under paragraph (2) of subdivision (i), this person is one
who has the legal authority to consent to health or mental health
care or treatment on behalf of the individual. With respect to an
individual described under paragraphs (1) or (3) of subdivision (i),
this person is one who has the legal authority to make all decisions
on behalf of the individual. These terms include the parent of a
minor who has legal custody of the minor. These terms do not include
a person acting solely as a representative payee, a person acting
solely to handle financial matters, an attorney or other person
acting on behalf of an individual with a disability solely in
individual legal matters, or an official or his or her designee who
is responsible for the provision of treatment or services to an
individual with a disability.
(g) "Neglect" means a negligent act, or omission to act, that
would constitute neglect as that term is defined in federal statutes
and regulations pertaining to the authority of protection and
advocacy agencies, including Section 10802(5) of Title 42 of the
United States Code, Section 51.2 of Title 42 of the Code of Federal
Regulations, or Section 1386.19 of Title 45 of the Code of Federal
Regulations. "Neglect" also means a negligent act, or omission to
act, that would constitute neglect as that term is defined in
subdivision (b) of Section 15610.07 of the Welfare and Institutions
Code or Section 11165.2 of the Penal Code.
(h) "Probable cause" to believe that an individual has been
subject to abuse or neglect, or is at significant risk of being
subjected to abuse or neglect, exists when the protection and
advocacy agency determines that it is objectively reasonable for a
person to entertain that belief. The individual making a probable
cause determination may base the decision on reasonable inferences
drawn from his or her experience or training regarding similar
incidents, conditions, or problems that are usually associated with
abuse or neglect. Information supporting a probable cause
determination may result from monitoring or other activities,
including, but not limited to, media reports and newspaper articles.
(i) "Protection and advocacy agency" means the private nonprofit
corporation designated by the Governor in this state pursuant to
federal law for the protection and advocacy of the rights of persons
with disabilities, including the following:
(1) People with developmental disabilities, as authorized under
the federal Developmental Disabilities Assistance and Bill of Rights
Act of 2000, contained in Chapter 144 (commencing with Section 15001)
of Title 42 of the United States Code.
(2) People with mental illness, as authorized under the federal
Protection and Advocacy for Mentally Ill Individuals Amendments Act
of 1991, contained in Chapter 114 (commencing with Section 10801) of
Title 42 of the United States Code.
(3) People with disabilities within the meaning of the Americans
with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) as
defined in Section 12102(2) of Title 42 of the United States Code,
who do not have a developmental disability as defined in Section
15002(8) of Title 42 of the United States Code, people with a mental
illness as defined in Section 10802(4) of Title 42 of the United
States Code, and who are receiving services under the federal
Protection and Advocacy of Individual Rights Act as defined in
Section 794e of Title 29 of the United States Code, or people with a
disability within the meaning of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code), as defined in subdivision (i) or
(k) of Section 12926 of the Government Code.
(j) "Reasonable unaccompanied access" means access that permits
the protection and advocacy agency, without undue interference, to
monitor, inspect, and observe conditions in facilities and programs,
to meet and communicate with residents and service recipients
privately and confidentially on a regular basis, formally or
informally, by telephone, mail, electronic mail, and in person, and
to review records privately and confidentially, in a manner that
minimizes interference with the activities of the program or service,
that respects residents' privacy interests and honors a resident's
request to terminate an interview, and that does not jeopardize the
physical health or safety of facility or program staff, residents,
service recipients, or protection and advocacy agency staff.

4901. (a) The protection and advocacy agency, for purposes of this
division, shall be a private nonprofit corporation and shall meet all
of the requirements of federal law applicable to protection and
advocacy systems, including, but not limited to, the requirement that
it establish a grievance procedure for clients or prospective
clients of the system to ensure that people with disabilities have
full access to services of the system.
(b) State officers and employees, in taking any action relating to
the protection and advocacy agency, shall meet the requirements of
federal law applicable to protection and advocacy systems.
(c) The authority of the protection and advocacy agency set forth
in this division shall not diminish the authority of the protection
and advocacy agency under federal statutes pertaining to the
authority of protection and advocacy systems, or under federal rules
and regulations adopted in implementation of those statutes.
(d) Nothing in this division shall be construed to supplant the
jurisdiction or the responsibilities of adult protective services
programs pursuant to Chapter 11 (commencing with Section 15600), or
Chapter 13 (commencing with Section 15750), of Part 3 of Division 9.
(e) (1) Nothing in this division shall be construed to supplant
the duties or authority of the State Long-Term Care Ombudsman Program
pursuant to Chapter 11 (commencing with Section 9700) of Division
8.5.
(2) The protection and advocacy agency shall cooperate with the
Office of the State Long-Term Care Ombudsman when appropriate, as
provided in Section 9717.
(f) (1) Nothing in this division shall be construed to alter or
impact the Elder and Dependent Adult Civil Protection Act (Chapter 11
(commencing with Section 15600), or Chapter 13 (commencing with
Section 15750), of Part 3 of Division 9, including the
confidentiality requirements of Section 15633 and the legal
responsibility of the protection and advocacy agency to report elder
or dependent adult abuse or neglect as required by paragraph (1) of
subdivision (b) of Section 15630.
(2) The adult protective services agency shall retain the
responsibility to investigate any report of abuse or neglect in
accordance with Chapter 13 (commencing with Section 15750) of Part 3
of Division 9 when the reported abuse or neglect is within the
jurisdiction of the adult protective services agency.

4902. (a) The protection and advocacy agency, in protecting and
advocating for the rights of people with disabilities, pursuant to
the federal mandate, may do all of the following:
(1) Investigate any incident of abuse or neglect of any person
with a disability if the incident is reported to the protection and
advocacy agency or if the protection and advocacy agency determines
there is probable cause to believe the abuse or neglect occurred.
This authority shall include reasonable access to a facility or
program and authority to examine all relevant records and interview
any facility or program service recipient, employee, or other person
who might have knowledge of the alleged abuse or neglect.
(2) Pursue administrative, legal, and other appropriate remedies
or approaches to ensure the protection of the rights of people with
disabilities.
(3) Provide information and training on, and referral to, programs
and services addressing the needs of people with disabilities,
including information and training regarding individual rights and
the services available from the protection and advocacy agency.
(b) The protection and advocacy agency shall, in addition, have
reasonable access to facilities or programs in the state that provide
care and treatment to people with disabilities, and access to those
persons.
(1) The protection and advocacy agency shall have reasonable
unaccompanied access to public or private facilities, programs, and
services, and to recipients of services therein, at all times as are
necessary to investigate incidents of abuse and neglect in accord
with paragraph (1) of subdivision (a). Access shall be afforded,
upon request, to the agency when any of the following has occurred:
(A) An incident is reported or a complaint is made to the agency.
(B) The agency determines there is probable cause to believe that
an incident has or may have occurred.
(C) The agency determines that there is or may be imminent danger
of serious abuse or neglect of an individual with a disability.
(2) The protection and advocacy agency shall have reasonable
unaccompanied access to public and private facilities, programs, and
services, and recipients of services therein during normal working
hours and visiting hours for other advocacy services. In the case of
information and training services, access shall be at times mutually
agreeable to the protection and advocacy agency and facility
management. This access shall be for the purpose of any of the
following:
(A) Providing information and training on, and referral to
programs addressing the needs of, individuals with disabilities, and
information and training on individual rights and the protection and
advocacy services available from the agency, including, but not
limited to, the name, address, and telephone number of the protection
and advocacy agency.
(B) Monitoring compliance with respect to the rights and safety of
residents or service recipients.
(C) Inspecting, viewing, and photographing all areas of the
facility or program that are used by residents or service recipients,
or that are accessible to them.
(c) If the protection and advocacy agency's access to facilities,
programs, service recipients, residents, or records covered by this
division is delayed or denied by a facility, program, or service, the
facility, program, or service shall promptly provide the agency with
a written statement of reasons. In the case of denial of access for
alleged lack of authorization, the facility, program, or service
shall promptly provide to the agency the name, address, and telephone
number of the legal guardian, conservator, or other legal
representative of the individual with a disability for whom
authorization is required. Access to a facility, program, service
recipient, resident, or to records, shall not be delayed or denied
without the prompt provision of a written statement of the reasons
for the denial.
(d) The protection and advocacy agency may not enter an individual
residence or apartment of a client or his or her family without the
consent of an adult occupant. In the absence of this consent, the
protection and advocacy agency may enter only if it has obtained the
legal authority to enforce its access authority pursuant to legal
remedies available under this division or applicable federal law.
(e) A care provider, including, but not limited to, any
individual, state entity, or other organization that is required to
respond to these requests, may charge a reasonable fee to cover the
cost of copying records pursuant to this division that may take into
account the costs incurred by the care provider in locating,
identifying, and making the records available as required pursuant to
this division. Charges for copying records that would otherwise be
available to the protection and advocacy agency or the person with a
disability whose records are requested, under other statutes
providing for access to records, may not exceed any rates for
obtaining copies of the records specified in the applicable
provisions.

4903. (a) The protection and advocacy agency shall have access to
the records of any of the following people with disabilities:
(1) Any person who is a client of the agency, or any person who
has requested assistance from the agency, if that person or the agent
designated by that person, or the legal guardian, conservator, or
other legal representative of that person, has authorized the
protection and advocacy agency to have access to the records and
information. If a person with a disability who is able to authorize
the protection and advocacy agency to access his or her records
expressly denies this access after being informed by the protection
and advocacy agency of his or her right to authorize or deny access,
the protection and advocacy agency may not have access to that person'
s records.
(2) Any person, including any individual who cannot be located, to
whom all of the following conditions apply:
(A) The individual, due to his or her mental or physical
condition, is unable to authorize the protection and advocacy agency
to have access to his or her records.
(B) The individual does not have a legal guardian, conservator, or
other legal representative, or the individual's representative is a
public entity, including the state or one of its political
subdivisions.
(C) The protection and advocacy agency has received a complaint
that the individual has been subject to abuse or neglect, or has
determined that probable cause exists to believe that the individual
has been subject to abuse or neglect.
(3) Any person who is deceased, and for whom the protection and
advocacy agency has received a complaint that the individual had been
subjected to abuse or neglect, or for whom the agency has determined
that probable cause exists to believe that the individual had been
subjected to abuse or neglect.
(4) Any person who has a legal guardian, conservator, or other
legal representative with respect to whom a complaint has been
received by the protection and advocacy agency, or with respect to
whom the protection and advocacy agency has determined that probable
cause exists to believe that the person has been subjected to abuse
or neglect, whenever all of the following conditions exist:
(A) The representative has been contacted by the protection and
advocacy agency upon receipt of the representative's name and
address.
(B) The protection and advocacy agency has offered assistance to
the representatives to resolve the situation.
(C) The representative has failed or refused to act on behalf of
the person.
(b) Individual records that shall be available to the protection
and advocacy agency under this section shall include, but not be
limited to, all of the following information and records related to
the investigation, whether written or in another medium, draft or
final, including, but not limited to, handwritten notes, electronic
files, photographs, videotapes, or audiotapes:
(1) Information and records prepared or received in the course of
providing intake, assessment, evaluation, education, training, or
other supportive services, including, but not limited to, medical
records, financial records, monitoring reports, or other reports,
prepared or received by a member of the staff of a facility, program,
or service that is providing care, treatment, or services.
(2) Reports prepared by an agency charged with investigating
reports of incidents of abuse, neglect, injury, or death occurring at
the program, facility, or service while the individual with a
disability is under the care of a member of the staff of a program,
facility, or service, or by or for a program, facility, or service,
that describe any or all of the following:
(A) Abuse, neglect, injury, or death.
(B) The steps taken to investigate the incidents.
(C) Reports and records, including, but not limited to, personnel
records prepared or maintained by the facility, program, or service
in connection with reports of incidents, subject to the following:
(i) If a state statute specifies procedures with respect to
personnel records, the protection and advocacy agency shall follow
those procedures.
(ii) Personnel records shall be protected from disclosure in
compliance with the fundamental right of privacy established pursuant
to Section 1 of Article I of the California Constitution. The
custodian of personnel records shall have a right and a duty to
resist attempts to allow the unauthorized disclosure of personnel
records, and may not waive the privacy rights that are guaranteed
pursuant to Section 1 of Article I of the California Constitution.
(D) Supporting information that was relied upon in creating a
report, including, but not limited to, all information and records
that document interviews with persons who were interviewed, physical
and documentary evidence that was reviewed, or related investigative
findings.
(3) Discharge planning records.
(c) Information in the possession of a program, facility, or
service that must be available to the agency investigating instances
of abuse or neglect pursuant to paragraph (1) of subdivision (a) of
Section 4902, whether written or in another medium, draft or final,
including, but not limited to, handwritten notes, electronic files,
photographs, videotapes, audiotapes, or records, shall include, but
not be limited to, all of the following:
(1) Information in reports prepared by individuals and entities
performing certification or licensure reviews, or by professional
accreditation organizations, as well as related assessments prepared
for a program, facility, or service by its staff, contractors, or
related entities, subject to any other provision of state law
protecting records produced by medical care evaluation or peer review
committees.
(2) Information in professional, performance, building, or other
safety standards, or demographic and statistical information,
relating to the facility.
(d) The authority of the protection and advocacy agency to have
access to records does not supersede any prohibition on discovery
specified in Sections 1157 and 1157.6 of the Evidence Code, nor does
it supersede any prohibition on disclosure subject to the
physician-patient privilege or the psychotherapist-patient privilege.
(e) (1) The protection and advocacy agency shall have access to
records of individuals described in paragraph (1) of subdivision (a)
of Section 4902 and in subdivision (a), and other records that are
relevant to conducting an investigation, under the circumstances
described in those subdivisions, not later than three business days
after the agency makes a written request for the records involved.
(2) The protection and advocacy agency shall have immediate access
to the records, not later than 24 hours after the agency makes a
request, without consent from another party, in a situation in which
treatment, services, supports, or other assistance is provided to an
individual with a disability, if the agency determines there is
probable cause to believe that the health or safety of the individual
is in serious and immediate jeopardy, or in a case of death of an
individual with a disability.
(f) Confidential information kept or obtained by the protection
and advocacy agency shall remain confidential and may not be subject
to disclosure. This subdivision shall not, however, prevent the
protection and advocacy agency from doing any of the following:
(1) Sharing the information with the individual client who is the
subject of the record or report or other document, or with his or her
legally authorized representative, subject to any limitation on
disclosure to recipients of mental health services as provided in
subsection (b) of Section 10806 of Title 42 of the United States
Code.
(2) Issuing a public report of the results of an investigation
that maintains the confidentiality of individual service recipients.
(3) Reporting the results of an investigation to responsible
investigative or enforcement agencies should an investigation reveal
information concerning the facility, its staff, or employees
warranting possible sanctions or corrective action. This information
may be reported to agencies that are responsible for facility
licensing or accreditation, employee discipline, employee licensing
or certification suspension or revocation, or criminal prosecution.
(4) Pursuing alternative remedies, including the initiation of
legal action.
(5) Reporting suspected elder or dependent adult abuse pursuant to
the Elder Abuse and Dependent Adult Civil Protection Act (Chapter 11
(commencing with Section 15600) of Part 3 of Division 9).
(g) The protection and advocacy agency shall inform and train
employees as appropriate regarding the confidentiality of client
records.

4904. (a) The protection and advocacy agency, its employees, and
designated agents, shall not be liable for an injury resulting from
an employee's or agent's act or omission where the act or omission
was the result of the exercise, in good faith, of the discretion
vested in him or her.
(b) The protection and advocacy agency, its employees, and
designated agents, shall not be liable for damages awarded under
Section 3294 of the Civil Code or other damages imposed primarily for
the sake of example and by way of punishing the defendant.
(c) The protection and advocacy agency, its employees, and
designated agents, when participating in filing a complaint or
providing information pursuant to this division or participating in a
judicial proceeding resulting therefrom shall be presumed to be
acting in good faith and unless the presumption is rebutted, shall be
immune from any liability, civil or criminal, and shall be immune
from any penalty, sanction, or restriction that might be incurred or
imposed.

4905. (a) No employee or agent of a facility, program, or service
shall subject a person with a disability to reprisal or harassment or
directly or indirectly take or threaten to take any action that
would prevent the person, his or her legally authorized
representative, or family member from reporting or otherwise bringing
to the attention of the protection and advocacy agency any facts or
information relative to suspected abuse, neglect, or other violations
of the person's rights.
(b) Any attempt to involuntarily remove from a facility, program,
or service, or to deny privileges or rights without good cause to a
person with a disability by whom or for whom a complaint has been
made to the protection and advocacy agency, within 60 days after the
date the complaint is made or within 60 days after the conclusion of
any proceeding resulting from the complaint, shall raise a
presumption that the action was taken in retaliation for the filing
of the complaint.

4906. (a) The protection and advocacy agency may not obtain access
through the use of physical force to facilities, programs, service
recipients, residents, or records required by the division if this
access is delayed or denied.
(b) Notwithstanding subdivision (a), nothing in this division is
intended to preclude the protection and advocacy agency from pursuing
appropriate legal remedies to enforce its access authority under
this division or applicable federal law.

CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15653-15655.5

2009-06-23T15:10:00.000-07:00

CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15653-15655.5

15653. (a) Minimum guidelines for use by county adult protective
services agencies in determining when an investigation of abuse is
warranted shall be maintained by the State Department of Social
Services in cooperation with representatives of county government,
and in consultation with the Department of Aging, the Department of
Justice, and other concerned state departments for use by county
adult protective services agencies.
(b) Uniform guidelines for local law enforcement assistance with
investigations of allegations of abuse to elders and dependent adults
as developed by the Department of Justice in consultation with the
department, the Department of Aging, and other concerned state and
local agencies pursuant to Section 15640, as amended by Chapter 769
of the Statutes of 1986, shall remain in effect until modified.
Consistent with these guidelines, county adult protective services
agencies may seek local law enforcement assistance with
investigations of allegations of abuse to elder and dependent adults.

15653.5. Training for determining when to refer for possible
criminal prosecution a report of a known or suspected instance of
abuse that occurred in a long-term care facility shall be included in
the training provided by the Bureau of Medi-Cal Fraud and Elder
Abuse pursuant to subdivision (h) of Section 12528 of the Government
Code.

15654. As described in subdivision (h) of Section 12528 of the
Government Code, the bureau shall offer training programs to local
law enforcement and prosecutorial personnel in investigating and
prosecuting crimes against elders and dependent adults, and to the
State Department of Health Services, the State Department of Social
Services, the county adult protective services agencies and to the
long-term care ombudsman program in evaluating and documenting
criminal abuse against elders and dependent adults.

15655. (a) (1) Each long-term health care facility, as defined in
Section 1418 of the Health and Safety Code, community care facility,
as defined in Section 1502 of the Health and Safety Code, or
residential care facility for the elderly, as defined in Section
1569.2 of the Health and Safety Code, that provides care to adults
shall provide training in recognizing and reporting elder and
dependent adult abuse, as prescribed by the Department of Justice.
The Department of Justice shall, in cooperation with the State
Department of Health Services and the State Department of Social
Services, develop a minimal core training program for use by these
facilities. As part of that training, long-term care facilities,
including nursing homes and out-of-home care facilities, shall
provide to all staff being trained a written copy of the reporting
requirements and a written notification of the staff's
confidentiality rights as specified in Section 15633.
(2) Each long-term health care facility as defined in Section 1418
of the Health and Safety Code and each community care facility as
defined in Section 1502 of the Health and Safety Code shall comply
with paragraph (1) by January 1, 2001, or, if the facility began
operation after July 31, 2000, within six months of the date of the
beginning of the operation of the facility. Employees hired after
June 1, 2001, shall be trained within 60 days of their first day of
employment.
(3) Each residential care facility as defined in Section 1569.2 of
the Health and Safety Code shall comply with paragraph (1) by July
1, 2002, or, if the facility began operation after July 1, 2002,
within six months of the date of the beginning of the operation of
the facility. Employees hired on or after July 1, 2002, shall be
trained within 60 days of their first day of employment.
(b) Each long-term health care facility, as defined in Section
1418 of the Health and Safety Code, shall be subject to review by the
State Department of Health Services Licensing and Certification Unit
for compliance with the duties imposed in subdivision (a).
(c) Each community care facility, as defined in Section 1502 of
the Health and Safety Code, and residential care facility for the
elderly, as defined in Section 1569.2 of the Health and Safety Code,
shall be subject to review by the State Department of Social Services
Community Care Licensing Unit for compliance with the duties imposed
in subdivision (a).

15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17, and mandated reporters of suspected financial abuse of an
elder or dependent adult pursuant to Section 15630.1, with
instructional materials regarding abuse and neglect of an elder or
dependent adult and their obligation to report under this chapter. At
a minimum, the instructional materials shall include the following:
(a) An explanation of abuse and neglect of an elder or dependent
adult, as defined in this chapter.
(b) Information on how to recognize potential abuse and neglect of
an elder or dependent adult.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
(e) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.

15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17 with instructional materials regarding elder and dependent
adult abuse and neglect and their obligation to report under this
chapter. At a minimum, the instructional materials shall include the
following:
(a) An explanation of elder and dependent adult abuse and neglect,
as defined in this chapter.
(b) Information on how to recognize potential elder and dependent
adult abuse and neglect.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
(e) This section shall become operative on January 1, 2013.

CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15610-15610.65

2009-06-23T14:58:00.000-07:00

CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15610-15610.65

15610. The definitions contained in this article shall govern the
construction of this chapter, unless the context requires otherwise.

15610.05. "Abandonment" means the desertion or willful forsaking of
an elder or a dependent adult by anyone having care or custody of
that person under circumstances in which a reasonable person would
continue to provide care and custody.

15610.06. "Abduction" means the removal from this state and the
restraint from returning to this state, or the restraint from
returning to this state, of any elder or dependent adult who does not
have the capacity to consent to the removal from this state and the
restraint from returning to this state, or the restraint from
returning to this state, as well as the removal from this state or
the restraint from returning to this state, of any conservatee
without the consent of the conservator or the court.

15610.07. "Abuse of an elder or a dependent adult" means either of
the following:
(a) Physical abuse, neglect, financial abuse, abandonment,
isolation, abduction, or other treatment with resulting physical harm
or pain or mental suffering.
(b) The deprivation by a care custodian of goods or services that
are necessary to avoid physical harm or mental suffering.

15610.10. "Adult protective services" means those preventive and
remedial activities performed on behalf of elders and dependent
adults who are unable to protect their own interests, harmed or
threatened with harm, caused physical or mental injury due to the
action or inaction of another person or their own action as a result
of ignorance, illiteracy, incompetence, mental limitation, substance
abuse, or poor health, lacking in adequate food, shelter, or
clothing, exploited of their income and resources, or deprived of
entitlement due them.

15610.13. "Adult protective services agency" means a county welfare
department, except persons who do not work directly with elders or
dependent adults as part of their official duties, including members
of support staff and maintenance staff.

15610.15. "Bureau" means the Bureau of Medi-Cal Fraud within the
office of the Attorney General.

15610.17. "Care custodian" means an administrator or an employee of
any of the following public or private facilities or agencies, or
persons providing care or services for elders or dependent adults,
including members of the support staff and maintenance staff:
(a) Twenty-four-hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(b) Clinics.
(c) Home health agencies.
(d) Agencies providing publicly funded in-home supportive
services, nutrition services, or other home and community-based
support services.
(e) Adult day health care centers and adult day care.
(f) Secondary schools that serve 18- to 22-year-old dependent
adults and postsecondary educational institutions that serve
dependent adults or elders.
(g) Independent living centers.
(h) Camps.
(i) Alzheimer's Disease day care resource centers.
(j) Community care facilities, as defined in Section 1502 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(k) Respite care facilities.
(l) Foster homes.
(m) Vocational rehabilitation facilities and work activity
centers.
(n) Designated area agencies on aging.
(o) Regional centers for persons with developmental disabilities.
(p) State Department of Social Services and State Department of
Health Services licensing divisions.
(q) County welfare departments.
(r) Offices of patients' rights advocates and clients' rights
advocates, including attorneys.
(s) The office of the long-term care ombudsman.
(t) Offices of public conservators, public guardians, and court
investigators.
(u) Any protection or advocacy agency or entity that is designated
by the Governor to fulfill the requirements and assurances of the
following:
(1) The federal Developmental Disabilities Assistance and Bill of
Rights Act of 2000, contained in Chapter 144 (commencing with
Section 15001) of Title 42 of the United States Code, for protection
and advocacy of the rights of persons with developmental
disabilities.
(2) The Protection and Advocacy for the Mentally Ill Individuals
Act of 1986, as amended, contained in Chapter 114 (commencing with
Section 10801) of Title 42 of the United States Code, for the
protection and advocacy of the rights of persons with mental illness.
(v) Humane societies and animal control agencies.
(w) Fire departments.
(x) Offices of environmental health and building code enforcement.
(y) Any other protective, public, sectarian, mental health, or
private assistance or advocacy agency or person providing health
services or social services to elders or dependent adults.

15610.19. "Clergy member" means a priest, minister, rabbi,
religious practitioner, or similar functionary of a church,
synagogue, temple, mosque, or recognized religious denomination or
organization. "Clergy member" does not include unpaid volunteers
whose principal occupation or vocation does not involve active or
ordained ministry in a church, synagogue, temple, mosque, or
recognized religious denomination or organization, and who
periodically visit elder or dependent adults on behalf of that
church, synagogue, temple, mosque, or recognized religious
denomination or organization.

15610.20. "Clients' rights advocate" means the individual or
individuals assigned by a regional center or state hospital
developmental center to be responsible for clients' rights assurance
for persons with developmental disabilities.

15610.23. (a) "Dependent adult" means any person between the ages
of 18 and 64 years who resides in this state and who has physical or
mental limitations that restrict his or her ability to carry out
normal activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities,
or whose physical or mental abilities have diminished because of
age.
(b) "Dependent adult" includes any person between the ages of 18
and 64 years who is admitted as an inpatient to a 24-hour health
facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
Health and Safety Code.

15610.25. "Developmentally disabled person" means a person with a
developmental disability specified by or as described in subdivision
(a) of Section 4512.

15610.27. "Elder" means any person residing in this state, 65 years
of age or older.

15610.30. (a) "Financial abuse" of an elder or dependent adult
occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful use
or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or
retaining real or personal property of an elder or dependent adult
for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists
in taking, secreting, appropriating, obtaining, or retaining, real
or personal property of an elder or dependent adult by undue
influence, as defined in Section 1575 of the Civil Code.
(b) A person or entity shall be deemed to have taken, secreted,
appropriated, obtained, or retained property for a wrongful use if,
among other things, the person or entity takes, secretes,
appropriates, obtains, or retains the property and the person or
entity knew or should have known that this conduct is likely to be
harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes,
secretes, appropriates, obtains, or retains real or personal property
when an elder or dependent adult is deprived of any property right,
including by means of an agreement, donative transfer, or
testamentary bequest, regardless of whether the property is held
directly or by a representative of an elder or dependent adult.
(d) For purposes of this section, "representative" means a person
or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate
of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts
within the authority of the power of attorney.

15610.35. "Goods and services necessary to avoid physical harm or
mental suffering" include, but are not limited to, all of the
following:
(a) The provision of medical care for physical and mental health
needs.
(b) Assistance in personal hygiene.
(c) Adequate clothing.
(d) Adequately heated and ventilated shelter.
(e) Protection from health and safety hazards.
(f) Protection from malnutrition, under those circumstances where
the results include, but are not limited to, malnutrition and
deprivation of necessities or physical punishment.
(g) Transportation and assistance necessary to secure any of the
needs set forth in subdivisions (a) to (f), inclusive.

15610.37. "Health practitioner" means a physician and surgeon,
psychiatrist, psychologist, dentist, resident, intern, podiatrist,
chiropractor, licensed nurse, dental hygienist, licensed clinical
social worker or associate clinical social worker, marriage, family,
and child counselor, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code, any emergency medical technician I or II,
paramedic, or person certified pursuant to Division 2.5 (commencing
with Section 1797) of the Health and Safety Code, a psychological
assistant registered pursuant to Section 2913 of the Business and
Professions Code, a marriage, family, and child counselor trainee, as
defined in subdivision (c) of Section 4980.03 of the Business and
Professions Code, or an unlicensed marriage, family, and child
counselor intern registered under Section 4980.44 of the Business and
Professions Code, state or county public health or social service
employee who treats an elder or a dependent adult for any condition,
or a coroner.

15610.39. "Imminent danger" means a substantial probability that an
elder or dependent adult is in imminent or immediate risk of death
or serious physical harm, through either his or her own action or
inaction, or as a result of the action or inaction of another person.

15610.40. "Investigation" means that activity undertaken to
determine the validity of a report of elder or dependent adult abuse.

15610.43. (a) "Isolation" means any of the following:
(1) Acts intentionally committed for the purpose of preventing,
and that do serve to prevent, an elder or dependent adult from
receiving his or her mail or telephone calls.
(2) Telling a caller or prospective visitor that an elder or
dependent adult is not present, or does not wish to talk with the
caller, or does not wish to meet with the visitor where the statement
is false, is contrary to the express wishes of the elder or the
dependent adult, whether he or she is competent or not, and is made
for the purpose of preventing the elder or dependent adult from
having contact with family, friends, or concerned persons.
(3) False imprisonment, as defined in Section 236 of the Penal
Code.
(4) Physical restraint of an elder or dependent adult, for the
purpose of preventing the elder or dependent adult from meeting with
visitors.
(b) The acts set forth in subdivision (a) shall be subject to a
rebuttable presumption that they do not constitute isolation if they
are performed pursuant to the instructions of a physician and surgeon
licensed to practice medicine in the state, who is caring for the
elder or dependent adult at the time the instructions are given, and
who gives the instructions as part of his or her medical care.
(c) The acts set forth in subdivision (a) shall not constitute
isolation if they are performed in response to a reasonably perceived
threat of danger to property or physical safety.

15610.45. "Local law enforcement agency" means a city police or
county sheriff's department, or a county probation department, except
persons who do not work directly with elders or dependent adults as
part of their official duties, including members of support staff and
maintenance staff.

15610.47. "Long-term care facility" means any of the following:
(a) Any long-term health care facility, as defined in subdivision
(a) of Section 1418 of the Health and Safety Code.
(b) Any community care facility, as defined in paragraphs (1) and
(2) of subdivision (a) of Section 1502 of the Health and Safety Code,
whether licensed or unlicensed.
(c) Any swing bed in an acute care facility, or any extended care
facility.
(d) Any adult day health care facility as defined in subdivision
(b) of Section 1570.7 of the Health and Safety Code.
(e) Any residential care facility for the elderly as defined in
Section 1569.2 of the Health and Safety Code.

15610.50. "Long-term care ombudsman" means the State Long-Term Care
Ombudsman, local ombudsman coordinators, and other persons currently
certified as ombudsmen by the Department of Aging as described in
Chapter 11 (commencing with Section 9700) of Division 8.5.

15610.53. "Mental suffering" means fear, agitation, confusion,
severe depression, or other forms of serious emotional distress that
is brought about by forms of intimidating behavior, threats,
harassment, or by deceptive acts performed or false or misleading
statements made with malicious intent to agitate, confuse, frighten,
or cause severe depression or serious emotional distress of the elder
or dependent adult.

15610.55. (a) "Multidisciplinary personnel team" means any team of
two or more persons who are trained in the prevention,
identification, and treatment of abuse of elderly or dependent adults
and who are qualified to provide a broad range of services related
to abuse of elderly or dependent adults.
(b) A multidisciplinary personnel team may include, but is not
limited to, all of the following:
(1) Psychiatrists, psychologists, or other trained counseling
personnel.
(2) Police officers or other law enforcement agents.
(3) Medical personnel with sufficient training to provide health
services.
(4) Social workers with experience or training in prevention of
abuse of elderly or dependent adults.
(5) Public guardians.
(6) The local long-term care ombudsman.

15610.57. (a) "Neglect" means either of the following:
(1) The negligent failure of any person having the care or custody
of an elder or a dependent adult to exercise that degree of care
that a reasonable person in a like position would exercise.
(2) The negligent failure of an elder or dependent adult to
exercise that degree of self care that a reasonable person in a like
position would exercise.
(b) Neglect includes, but is not limited to, all of the following:
(1) Failure to assist in personal hygiene, or in the provision of
food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health
needs. No person shall be deemed neglected or abused for the sole
reason that he or she voluntarily relies on treatment by spiritual
means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
(5) Failure of an elder or dependent adult to satisfy the needs
specified in paragraphs (1) to (4), inclusive, for himself or herself
as a result of poor cognitive functioning, mental limitation,
substance abuse, or chronic poor health.

15610.60. "Patients' rights advocate" means a person who has no
direct or indirect clinical or administrative responsibility for the
patient, and who is responsible for ensuring that laws, regulations,
and policies on the rights of the patient are observed.

15610.63. "Physical abuse" means any of the following:
(a) Assault, as defined in Section 240 of the Penal Code.
(b) Battery, as defined in Section 242 of the Penal Code.
(c) Assault with a deadly weapon or force likely to produce great
bodily injury, as defined in Section 245 of the Penal Code.
(d) Unreasonable physical constraint, or prolonged or continual
deprivation of food or water.
(e) Sexual assault, that means any of the following:
(1) Sexual battery, as defined in Section 243.4 of the Penal Code.
(2) Rape, as defined in Section 261 of the Penal Code.
(3) Rape in concert, as described in Section 264.1 of the Penal
Code.
(4) Spousal rape, as defined in Section 262 of the Penal Code.
(5) Incest, as defined in Section 285 of the Penal Code.
(6) Sodomy, as defined in Section 286 of the Penal Code.
(7) Oral copulation, as defined in Section 288a of the Penal Code.
(8) Sexual penetration, as defined in Section 289 of the Penal
Code.
(9) Lewd or lascivious acts as defined in paragraph (2) of
subdivision (b) of Section 288 of the Penal Code.
(f) Use of a physical or chemical restraint or psychotropic
medication under any of the following conditions:
(1) For punishment.
(2) For a period beyond that for which the medication was ordered
pursuant to the instructions of a physician and surgeon licensed in
the State of California, who is providing medical care to the elder
or dependent adult at the time the instructions are given.
(3) For any purpose not authorized by the physician and surgeon.
15610.65. "Reasonable suspicion" means an objectively reasonable
suspicion that a person would entertain, based upon facts that could
cause a reasonable person in a like position, drawing when
appropriate upon his or her training and experience, to suspect
abuse.

CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15657-15657.7

2009-06-23T14:50:00.000-07:00

CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15657-15657.7

15657. Where it is proven by clear and convincing evidence that a
defendant is liable for physical abuse as defined in Section
15610.63, or neglect as defined in Section 15610.57, and that the
defendant has been guilty of recklessness, oppression, fraud, or
malice in the commission of this abuse, the following shall apply, in
addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney's
fees and costs. The term "costs" includes, but is not limited to,
reasonable fees for the services of a conservator, if any, devoted to
the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.

15657.01. Notwithstanding Section 483.010 of the Code of Civil
Procedure, an attachment may be issued in any action for damages
pursuant to Section 15657.5 for financial abuse of an elder or
dependent adult, as defined in Section 15610.30. The other provisions
of the Code of Civil Procedure not inconsistent with this article
shall govern the issuance of an attachment pursuant to this section.
In an application for a writ of attachment, the claimant shall refer
to this section. An attachment may be issued pursuant to this section
whether or not other forms of relief are demanded.

15657.03. (a) An elder or dependent adult who has suffered abuse as
defined in Section 15610.07 may seek protective orders as provided
in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the petitioner.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(2) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form: "NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF
THIS FORM INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE
HEARING WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY
SERVED WITH A TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE
ORDER AND NOTICE OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING
EITHER IN PERSON OR BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE
ORDER IS ISSUED AT THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR
TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF
THE ORDER WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS
____. IF THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE
TEMPORARY OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE
CHANGE, CALL THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this chapter.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and response
forms shall be simple and concise.
(s) This section shall remain in effect only until January 1, 2010,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2010, deletes or extends that date.
15657.03. (a) An elder or dependent adult who has suffered abuse as
defined in Section 15610.07 may seek protective orders as provided
in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members or a conservator, if any, of
the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the petitioner, other named family or household member of the
petitioner, or conservator of the petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or conservator of the petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the petitioner, other named family or household
member of the petitioner, or conservator of the petitioner.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If a person named in an order issued under this section,
after a hearing, has not been served personally with the order but
has received actual notice of the existence and substance of the
order through personal appearance in court to hear the terms of the
order from the court, no additional proof of service is required for
enforcement of the order.
(2) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(3) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form: "NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF
THIS FORM INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE
HEARING WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY
SERVED WITH A TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE
ORDER AND NOTICE OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING
EITHER IN PERSON OR BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE
ORDER IS ISSUED AT THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR
TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF
THE ORDER WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS
____. IF THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE
TEMPORARY OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE
CHANGE, CALL THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this chapter.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and response
forms shall be simple and concise.
(s) This section shall become operative on January 1, 2010.
15657.04. (a) The court shall order that any party enjoined
pursuant to Section 15657.03 be prohibited from taking any action to
obtain the address or location of a protected party or a protected
party's family members, caretakers, or guardian, unless there is good
cause not to make that order.
(b) The Judicial Council shall promulgate forms necessary to
effectuate this section.

15657.05. Where it is proven by clear and convincing evidence that
an individual is liable for abduction, as defined in Section
15610.06, in addition to all other remedies otherwise provided by
law:
(a) (1) The court shall award to the plaintiff reasonable attorney'
s fees and costs. The term "costs" shall include, but is not limited
to, costs of representing the abductee and his or her family in this
state and any other state in any action related to the abduction and
returning of the abductee to this state, as well as travel expenses
for returning the abductee to this state and reasonable fees for the
services of a conservator, if any, devoted to the litigation of a
claim brought under this article.
(2) The award of attorney's fees shall be governed by the
principles set forth in Section 15657.1.
(b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.

15657.1. The award of attorney's fees pursuant to subdivision (a)
of Section 15657 shall be based on all factors relevant to the value
of the services rendered, including, but not limited to, the factors
set forth in Rule 4-200 of the Rules of Professional Conduct of the
State Bar of California, and all of the following:
(a) The value of the abuse-related litigation in terms of the
quality of life of the elder or dependent adult, and the results
obtained.
(b) Whether the defendant took reasonable and timely steps to
determine the likelihood and extent of liability.
(c) The reasonableness and timeliness of any written offer in
compromise made by a party to the action.

15657.2. Notwithstanding this article, any cause of action for
injury or damage against a health care provider, as defined in
Section 340.5 of the Code of Civil Procedure, based on the health
care provider's alleged professional negligence, shall be governed by
those laws which specifically apply to those professional negligence
causes of action.

15657.3. (a) The department of the superior court having
jurisdiction over probate conservatorships shall also have concurrent
jurisdiction over civil actions and proceedings involving a claim
for relief arising out of the abduction, as defined in Section
15610.06, or the abuse of an elderly or dependent adult, if a
conservator has been appointed for the plaintiff prior to the
initiation of the action for abuse.
(b) The department of the superior court having jurisdiction over
probate conservatorships shall not grant relief under this article if
the court determines that the matter should be determined in a civil
action, but shall instead transfer the matter to the general civil
calendar of the superior court. The court need not abate a proceeding
for relief pursuant to this article if the court determines that the
civil action was filed for the purpose of delay.
(c) The death of the elder or dependent adult does not cause the
court to lose jurisdiction of a claim for relief for abuse of that
elder or dependent adult.
(d) (1) 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. If there is no personal representative, the right to
commence or maintain an action shall pass to any of the following, if
the requirements of Section 377.32 of the Code of Civil Procedure
are met:
(A) An intestate heir whose interest is affected by the action.
(B) The decedent's successor in interest, as defined in Section
377.11 of the Code of Civil Procedure.
(C) An interested person, as defined in Section 48 of the Probate
Code, as limited in this subparagraph. As used in this subparagraph,
"an interested person" does not include a creditor or a person who
has a claim against the estate and who is not an heir or beneficiary
of the decedent's estate.
(2) If the personal representative refuses to commence or maintain
an action or if the personal representative's family or an
affiliate, as those terms are defined in subdivision (c) of Section
1064 of the Probate Code, 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. This paragraph does not require
the court to resolve the merits of an elder abuse action for purposes
of finding that a plaintiff who meets the qualifications of
subparagraphs (A), (B), and (C) of paragraph (1) has standing to
commence or maintain such an action.
(e) If two or more persons who are either described in
subparagraph (A), (B), or (C) of paragraph (1) of subdivision (d) or
a personal representative claim to have standing to commence or
maintain an action for elder abuse, upon petition or motion, the
court in which the action or proceeding is pending, may make any
order concerning the parties that is appropriate to ensure the proper
administration of justice in the case pursuant to Section 377.33 of
the Code of Civil Procedure.
(f) This section does not affect the applicable statute of
limitations for commencing an action for relief for abuse of an
elderly or dependent adult.

15657.5. (a) Where it is proven by a preponderance of the evidence
that a defendant is liable for financial abuse, as defined in Section
15610.30, in addition to compensatory damages and all other remedies
otherwise provided by law, the court shall award to the plaintiff
reasonable attorney's fees and costs. The term "costs" includes, but
is not limited to, reasonable fees for the services of a conservator,
if any, devoted to the litigation of a claim brought under this
article.
(b) Where it is proven by a preponderance of the evidence that a
defendant is liable for financial abuse, as defined in Section
15610.30, and where it is proven by clear and convincing evidence
that the defendant has been guilty of recklessness, oppression,
fraud, or malice in the commission of the abuse, in addition to
reasonable attorney's fees and costs set forth in subdivision (a),
compensatory damages, and all other remedies otherwise provided by
law, the limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any punitive damages may be imposed against an employer found liable
for financial abuse as defined in Section 15610.30. This subdivision
shall not apply to the recovery of compensatory damages or attorney'
s fees and costs.
(d) Nothing in this section affects the award of punitive damages
under Section 3294 of the Civil Code.

15657.6. A person or entity that takes, secretes, appropriates,
obtains, or retains, or assists in taking, secreting, appropriating,
obtaining, or retaining the real or personal property of an elder or
dependent adult when the elder or dependent adult lacks capacity
pursuant to Section 812 of the Probate Code, or is of unsound mind,
but not entirely without understanding, pursuant to Section 39 of the
Civil Code, shall, upon demand by the elder or dependent adult or a
representative of the elder or dependent adult, as defined in
subdivision (d) of Section 15610.30, return the property and if that
person or entity fails to return the property, the elder or dependent
adult shall be entitled to the remedies provided by Section 15657.5,
including attorney's fees and costs. This section shall not apply
to any agreement entered into by an elder or dependent adult when the
elder or dependent adult had capacity.

15657.7. An action for damages pursuant to Sections 15657.5 and
15657.6 for financial abuse of an elder or dependent adult, as
defined in Section 15610.30, shall be commenced within four years
after the plaintiff discovers or, through the exercise of reasonable
diligence, should have discovered, the facts constituting the
financial abuse.

CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 15630-15632

2009-06-23T14:42:00.000-07:00

CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 15630-15632

15630. (a) Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or dependent
adult, whether or not he or she receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, or any elder or dependent adult care custodian,
health practitioner, clergy member, or employee of a county adult
protective services agency or a local law enforcement agency, is a
mandated reporter.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect, or is told by an elder or dependent adult that he
or she has experienced behavior, including an act or omission,
constituting physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, abandonment, abduction, isolation,
financial abuse, or neglect, or reasonably suspects that abuse, shall
report the known or suspected instance of abuse by telephone
immediately or as soon as practicably possible, and by written report
sent within two working days, as follows:
(A) If the abuse has occurred in a long-term care facility, except
a state mental health hospital or a state developmental center, the
report shall be made to the local ombudsperson or the local law
enforcement agency.
The local ombudsperson and the local law enforcement agency shall,
as soon as practicable, except in the case of an emergency or
pursuant to a report required to be made pursuant to clause (v), in
which case these actions shall be taken immediately, do all of the
following:
(i) Report to the State Department of Public Health any case of
known or suspected abuse occurring in a long-term health care
facility, as defined in subdivision (a) of Section 1418 of the Health
and Safety Code.
(ii) Report to the State Department of Social Services any case of
known or suspected abuse occurring in a residential care facility
for the elderly, as defined in Section 1569.2 of the Health and
Safety Code, or in an adult day care facility, as defined in
paragraph (2) of subdivision (a) of Section 1502.
(iii) Report to the State Department of Public Health and the
California Department of Aging any case of known or suspected abuse
occurring in an adult day health care center, as defined in
subdivision (b) of Section 1570.7 of the Health and Safety Code.
(iv) Report to the Bureau of Medi-Cal Fraud and Elder Abuse any
case of known or suspected criminal activity.
(v) Report all cases of known or suspected physical abuse and
financial abuse to the local district attorney's office in the county
where the abuse occurred.
(B) If the suspected or alleged abuse occurred in a state mental
hospital or a state developmental center, the report shall be made to
designated investigators of the State Department of Mental Health or
the State Department of Developmental Services, or to the local law
enforcement agency.
Except in an emergency, the local law enforcement agency shall, as
soon as practicable, report any case of known or suspected criminal
activity to the Bureau of Medi-Cal Fraud and Elder Abuse.
(C) If the abuse has occurred any place other than one described
in subparagraph (A), the report shall be made to the adult protective
services agency or the local law enforcement agency.
(2) (A) A mandated reporter who is a clergy member who acquires
knowledge or reasonable suspicion of elder or dependent adult abuse
during a penitential communication is not subject to paragraph (1).
For purposes of this subdivision, "penitential communication" means a
communication that is intended to be in confidence, including, but
not limited to, a sacramental confession made to a clergy member who,
in the course of the discipline or practice of his or her church,
denomination, or organization is authorized or accustomed to hear
those communications and under the discipline tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(B) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected elder and
dependent adult abuse when he or she is acting in the capacity of a
care custodian, health practitioner, or employee of an adult
protective services agency.
(C) Notwithstanding any other provision in this section, a clergy
member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care or
custody of an elder or dependent adult shall not be responsible for
reporting abuse or neglect that is not reasonably observable or
discernible to a reasonably prudent person having no specialized
training or experience in elder or dependent care.
(3) (A) A mandated reporter who is a physician and surgeon, a
registered nurse, or a psychotherapist, as defined in Section 1010 of
the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident where all of the following conditions
exist:
(i) The mandated reporter has been told by an elder or dependent
adult that he or she has experienced behavior constituting physical
abuse, as defined in Section 15610.63 of the Welfare and Institutions
Code, abandonment, abduction, isolation, financial abuse, or
neglect.
(ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
(iii) The elder or dependent adult has been diagnosed with a
mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
(iv) In the exercise of clinical judgment, the physician and
surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
(B) This paragraph shall not be construed to impose upon mandated
reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
(4) (A) In a long-term care facility, a mandated reporter shall
not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident where all of the following
conditions exist:
(i) The mandated reporter is aware that there is a proper plan of
care.
(ii) The mandated reporter is aware that the plan of care was
properly provided or executed.
(iii) A physical, mental, or medical injury occurred as a result
of care provided pursuant to clause (i) or (ii).
(iv) The mandated reporter reasonably believes that the injury was
not the result of abuse.
(B) This paragraph shall not be construed to require a mandated
reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior to
reporting. This paragraph shall apply only to those categories of
mandated reporters that the State Department of Public Health
determines, upon approval by the Bureau of Medi-Cal Fraud and Elder
Abuse and the state long-term care ombudsperson, have access to plans
of care and have the training and experience necessary to determine
whether the conditions specified in this section have been met.
(c) (1) Any mandated reporter who has knowledge, or reasonably
suspects, that types of elder or dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
(2) If the suspected or alleged abuse occurred in a long-term care
facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsperson program. Except in an emergency, the local ombudsperson
shall report any case of known or suspected abuse to the State
Department of Public Health and any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse, as
soon as is practicable.
(3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of Mental
Health or the State Department of Developmental Services or to a
local law enforcement agency or to the local ombudsperson. Except in
an emergency, the local ombudsperson and the local law enforcement
agency shall report any case of known or suspected criminal activity
to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is
practicable.
(4) If the suspected or alleged abuse occurred in a place other
than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
(5) If the conduct involves criminal activity not covered in
subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
(d) When two or more mandated reporters are present and jointly
have knowledge or reasonably suspect that types of abuse of an elder
or a dependent adult for which a report is or is not mandated have
occurred, and when there is agreement among them, the telephone
report may be made by a member of the team selected by mutual
agreement, and a single report may be made and signed by the selected
member of the reporting team. Any member who has knowledge that the
member designated to report has failed to do so shall thereafter make
the report.
(e) A telephone report of a known or suspected instance of elder
or dependent adult abuse shall include, if known, the name of the
person making the report, the name and age of the elder or dependent
adult, the present location of the elder or dependent adult, the
names and addresses of family members or any other adult responsible
for the elder's or dependent adult's care, the nature and extent of
the elder's or dependent adult's condition, the date of the incident,
and any other information, including information that led that
person to suspect elder or dependent adult abuse, as requested by the
agency receiving the report.
(f) The reporting duties under this section are individual, and no
supervisor or administrator shall impede or inhibit the reporting
duties, and no person making the report shall be subject to any
sanction for making the report. However, internal procedures to
facilitate reporting, ensure confidentiality, and apprise supervisors
and administrators of reports may be established, provided they are
not inconsistent with this chapter.
(g) (1) Whenever this section requires a county adult protective
services agency to report to a law enforcement agency, the law
enforcement agency shall, immediately upon request, provide a copy of
its investigative report concerning the reported matter to that
county adult protective services agency.
(2) Whenever this section requires a law enforcement agency to
report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
(3) The requirement to disclose investigative reports pursuant to
this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
(h) Failure to report, or impeding or inhibiting a report of,
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect of an elder or dependent adult, in violation of
this section, is a misdemeanor, punishable by not more than six
months in the county jail, by a fine of not more than one thousand
dollars ($1,000), or by both that fine and imprisonment. Any mandated
reporter who willfully fails to report, or impedes or inhibits a
report of, physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, abandonment, abduction, isolation,
financial abuse, or neglect of an elder or dependent adult, in
violation of this section, where that abuse results in death or great
bodily injury, shall be punished by not more than one year in a
county jail, by a fine of not more than five thousand dollars
($5,000), or by both that fine and imprisonment. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until a law enforcement agency specified in paragraph (1) of
subdivision (b) of Section 15630 of the Welfare and Institutions Code
discovers the offense.
(i) For purposes of this section, "dependent adult" shall have the
same meaning as in Section 15610.23.

15630.1. (a) As used in this section, "mandated reporter of
suspected financial abuse of an elder or dependent adult" means all
officers and employees of financial institutions.
(b) As used in this section, the term "financial institution"
means any of the following:
(1) A depository institution, as defined in Section 3(c) of the
Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)).
(2) An institution-affiliated party, as defined in Section 3(u) of
the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)).
(3) A federal credit union or state credit union, as defined in
Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752),
including, but not limited to, an institution-affiliated party of a
credit union, as defined in Section 206(r) of the Federal Credit
Union Act (12 U.S.C. Sec. 1786(r)).
(c) As used in this section, "financial abuse" has the same
meaning as in Section 15610.30.
(d) (1) Any mandated reporter of suspected financial abuse of an
elder or dependent adult who has direct contact with the elder or
dependent adult or who reviews or approves the elder or dependent
adult's financial documents, records, or transactions, in connection
with providing financial services with respect to an elder or
dependent adult, and who, within the scope of his or her employment
or professional practice, has observed or has knowledge of an
incident, that is directly related to the transaction or matter that
is within that scope of employment or professional practice, that
reasonably appears to be financial abuse, or who reasonably suspects
that abuse, based solely on the information before him or her at the
time of reviewing or approving the document, record, or transaction
in the case of mandated reporters who do not have direct contact with
the elder or dependent adult, shall report the known or suspected
instance of financial abuse by telephone immediately, or as soon as
practicably possible, and by written report sent within two working
days to the local adult protective services agency or the local law
enforcement agency.
(2) When two or more mandated reporters jointly have knowledge or
reasonably suspect that financial abuse of an elder or a dependent
adult for which the report is mandated has occurred, and when there
is an agreement among them, the telephone report may be made by a
member of the reporting team who is selected by mutual agreement. A
single report may be made and signed by the selected member of the
reporting team. Any member of the team who has knowledge that the
member designated to report has failed to do so shall thereafter make
that report.
(3) If the mandated reporter knows that the elder or dependent
adult resides in a long-term care facility, as defined in Section
15610.47, the report shall be made to the local ombudsman or local
law enforcement agency.
(e) An allegation by the elder or dependent adult, or any other
person, that financial abuse has occurred is not sufficient to
trigger the reporting requirement under this section if both of the
following conditions are met:
(1) The mandated reporter of suspected financial abuse of an elder
or dependent adult is aware of no other corroborating or independent
evidence of the alleged financial abuse of an elder or dependent
adult. The mandated reporter of suspected financial abuse of an elder
or dependent adult is not required to investigate any accusations.
(2) In the exercise of his or her professional judgment, the
mandated reporter of suspected financial abuse of an elder or
dependent adult reasonably believes that financial abuse of an elder
or dependent adult did not occur.
(f) Failure to report financial abuse under this section shall be
subject to a civil penalty not exceeding one thousand dollars
($1,000) or if the failure to report is willful, a civil penalty not
exceeding five thousand dollars ($5,000), which shall be paid by the
financial institution that is the employer of the mandated reporter
to the party bringing the action. Subdivision (h) of Section 15630
shall not apply to violations of this section.
(g) (1) The civil penalty provided for in subdivision (f) shall be
recovered only in a civil action brought against the financial
institution by the Attorney General, district attorney, or county
counsel. No action shall be brought under this section by any person
other than the Attorney General, district attorney, or county
counsel. Multiple actions for the civil penalty may not be brought
for the same violation.
(2) Nothing in the Financial Elder Abuse Reporting Act of 2005
shall be construed to limit, expand, or otherwise modify any civil
liability or remedy that may exist under this or any other law.
(h) As used in this section, "suspected financial abuse of an
elder or dependent adult" occurs when a person who is required to
report under subdivision (a) observes or has knowledge of behavior or
unusual circumstances or transactions, or a pattern of behavior or
unusual circumstances or transactions, that would lead an individual
with like training or experience, based on the same facts, to form a
reasonable belief that an elder or dependent adult is the victim of
financial abuse as defined in Section 15610.30.
(i) Reports of suspected financial abuse of an elder or dependent
adult made by an employee or officer of a financial institution
pursuant to this section are covered under subdivision (b) of Section
47 of the Civil Code.
(j) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.

15631. (a) Any person who is not a mandated reporter under Section
15630, who knows, or reasonably suspects, that an elder or a
dependent adult has been the victim of abuse may report that abuse to
a long-term care ombudsman program or local law enforcement agency
when the abuse is alleged to have occurred in a long-term care
facility.
(b) Any person who is not a mandated reporter under Section 15630,
who knows, or reasonably suspects, that an elder or a dependent
adult has been the victim of abuse in any place other than a
long-term care facility may report the abuse to the county adult
protective services agency or local law enforcement agency.

15632. (a) In any court proceeding or administrative hearing,
neither the physician-patient privilege nor the
psychotherapist-patient privilege applies to the specific information
reported pursuant to this chapter.
(b) Nothing in this chapter shall be interpreted as requiring an
attorney to violate his or her oath and duties pursuant to Section
6067 or subdivision (e) of Section 6068 of the Business and
Professions Code, and Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code.

CALIFORNIA CODES-PROBATE CODE SECTION 2950-2951

2009-06-23T14:37:00.000-07:00

CALIFORNIA CODES
PROBATE CODE
SECTION 2950-2951

2950. (a) It is the intent of the Legislature to do all of the
following:
(1) Reduce the incidence of financial abuse perpetrated against
mentally impaired elder adults.
(2) Minimize monetary losses to mentally impaired elder adults as
a result of financial abuse.
(3) Facilitate timely intervention by law enforcement, in
collaboration with the public guardian, to effectively protect
mentally impaired elder adult victims of financial abuse, and to
recover their assets.
(b) Any peace officer or public guardian of a county that has both
of the following, as determined by the public guardian of that
county, may take the actions authorized by this chapter:
(1) The existence of sufficient law enforcement personnel with
expertise in the assessment of competence.
(2) The existence of a law enforcement unit devoted to
investigating elder financial abuse and the enforcement of laws
applicable to elder abuse.
(c) This chapter shall be coordinated with existing mandated
programs affecting financial abuse of mentally impaired elders that
are administered by the adult protective services agency of the
county.
2951. The definitions contained in this section shall govern the
construction of this chapter, unless the context requires otherwise.
(a) "Declaration" means a document that substantially complies
with the requirements of Section 2954, and is signed by both a peace
officer and a supervisor from the county's adult protective services
agency and provided to the public guardian in accordance with
subdivision (b) of Section 2952.
(b) "Elder person" means any person residing in this state, 65
years of age or older.
(c) "Financial abuse" means a situation described in Section
15610.30 of the Welfare and Institutions Code.
(d) "Financial abuse POST training" means an elder financial abuse
training course certified by the Commission on Peace Officer
Standards and Training.
(e) "Financial institution" means any bank, savings and loan,
thrift, industrial loan company, credit union, or any branch of any
of these institutions doing business in the state, as defined by
provisions of the Financial Code.
(f) "Peace officer" means a sheriff, deputy sheriff, municipal
police officer, or a peace officer authorized under subdivision (b)
of Section 830.1 of the Penal Code, duly sworn under the requirements
of state law, who satisfies any of the following requirements:
(1) The sheriff, deputy sheriff, municipal police officer, or
peace officer authorized under subdivision (b) of Section 830.1 of
the Penal Code has completed or participated as a lecturer in a
financial abuse POST training program within the last 36 months. The
completion of the course may be satisfied by telecourse, video
training tape, or other instruction. The training shall, at a
minimum, address relevant elder abuse laws, recognition of financial
abuse and fraud, assessment of mental competence in accordance with
the standards set forth in Part 17 (commencing with Section 810) of
the Probate Code, reporting requirements and procedures for the
investigation of financial abuse and related crimes, including
neglect, and civil and criminal procedures for the protection of
victims. The course may be presented as part of a training program
that includes other subjects or courses.
(2) The sheriff, deputy sheriff, municipal police officer, or
peace officer authorized under subdivision (b) of Section 830.1 of
the Penal Code, has consulted with a sheriff, deputy sheriff,
municipal police officer, or peace officer authorized under
subdivision (b) of Section 830.1 of the Penal Code, who satisfies the
requirements of paragraph (1) concerning the declaration defined in
subdivision (a) and obtained the signature of that sheriff, deputy
sheriff, municipal police officer, or peace officer authorized under
subdivision (b) of Section 830.1 of the Penal Code on a declaration
that substantially complies with the form described in Section 2954.
(g) "Property" means all personal property and real property of
every kind belonging to, or alleged to belong to, the elder.

CALIFORNIA CODES-PROBATE CODE SECTION 2952-2955

2009-06-23T14:33:00.000-07:00

CALIFORNIA CODES
PROBATE CODE
SECTION 2952-2955

2952. (a) A peace officer may issue a declaration, as provided in
Section 2954, concerning an elder person if all of the following
conditions are satisfied:
(1) There is probable cause to believe that the elder person is
substantially unable to manage his or her financial resources or to
resist fraud or undue influence.
(2) There exists a significant danger that the elder person will
lose all or a portion of his or her property as a result of fraud or
misrepresentations or the mental incapacity of the elder person.
(3) There is probable cause to believe that a crime is being
committed against the elder person.
(4) The crime is connected to the inability of the elder person to
manage his or her financial resources or to resist fraud or undue
influence, and that inability is the result of deficits in the elder
person's mental functions.
(5) The peace officer has consulted with an individual qualified
to perform a mental status examination.
(b) If the requirements of subdivision (a) are satisfied, the
peace officer may provide a signed declaration to the public guardian
of the county. The declaration provided by the peace officer under
this subdivision shall be signed by both the peace officer and a
supervisor from the county's adult protective services agency. The
declaration shall be transmitted to the public guardian within 24
hours of its being signed, and may be transmitted by facsimile.
(c) (1) Upon receiving a signed declaration from a peace officer,
the public guardian is authorized to rely on the information
contained in the declaration to take immediate possession or control
of any real or personal property belonging to the elder person
referred to in the declaration, including any property that is held
jointly between the elder person and a third party that is subject to
loss, injury, waste, or misappropriation, and may issue a written
recordable certification of that fact pursuant to this section. The
written recordable certification shall substantially comply with the
following form:
"CERTIFICATE OF AUTHORITY
THIS IS AN OFFICIAL CERTIFICATE ENTITLING THE PUBLIC GUARDIAN
TO TAKE POSSESSION OF ANY AND ALL PROPERTY BELONGING TO THE FOLLOWING
INDIVIDUAL:
(Name of Victim) _____________
This Certificate of Authority has been issued by the Public
Guardian pursuant to and in compliance with the Financial Abuse of
Mentally Impaired Elders statute, Chapter 4 (commencing with Section
2950) of Part 5 of Division 4 of the California Probate Code. Under
California law, this Certificate of Authority authorizes the Public
Guardian to take possession or control of property belonging to the
above-named individual.
SPECIAL NOTE TO FINANCIAL INSTITUTIONS: State law requires that
upon receiving a copy of this Certificate of Authority, financial
institutions shall provide the public guardian with information
concerning property held by the above-named individual and surrender
the property to the Public Guardian if requested.
This Certificate of Authority shall only be valid when signed and
dated by the Public Guardian or a deputy Public Guardian of the
County of _____ and affixed with the official seal of the Public
Guardian below.
Signature of Public Guardian: Date: Official Seal"
(2) The mere issuance of the declaration provided by this section
shall not require the public guardian to take possession or control
of property and shall not require the public guardian to make a
determination that the requirements for the appointment of a
conservator are satisfied.
(3) The authority provided to the public guardian in paragraph (1)
includes the authority to deny use of, access to, or prohibit
residency in the home of the elder, by anyone who does not have a
written rental agreement or other legal right to the use of, or
access to, the residence, and, subject to the requirements of
subdivision (b) of Section 2900, the authority to terminate the
occupancy of anyone living in the home of the elder person, and the
authority to remove that occupant residing therein.
(4) The public guardian shall serve, or cause to be served, a copy
of the certification issued pursuant to this section on the elder
person by mail within 24 hours of the execution of the certification,
or as soon thereafter as is practical, in the manner provided in
Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of
the Code of Civil Procedure.
(5) Receipt of a certification issued under this section
constitutes sufficient acquittance to financial institutions and
others in possession of an elder person's property to provide
information and surrender property of the elder person to the public
guardian. Any financial institution or other person who provides
information or surrenders property pursuant to this section shall be
discharged from any liability for any act or omission of the public
guardian with respect to the property.
(6) A public guardian acting in good faith is not liable when
taking possession or control of property pursuant to this section.
(7) A certification issued pursuant to this section is valid for
15 days after the date of issuance. Upon ex parte petition to the
superior court, the public guardian may seek additional 15-day
certifications. The court shall grant that petition only if it
determines that the additional certification is necessary to protect
the elder from financial abuse and the elder's property from loss,
injury, waste, or misappropriation.
(d) (1) If the public guardian takes possession of an elder person'
s property pursuant to this section, the public guardian shall
attempt to find agents pursuant to the use of durable powers of
attorney or successor trustees nominated in trust instruments, or
other persons having legal authority under existing legal
instruments, to manage the elder person's estate.
(2) If the public guardian is unable to find any appropriate
person to manage the elder person's estate pursuant to paragraph (1),
the public guardian shall attempt to find appropriate family members
willing to manage the elder person's estate. If no documents exist
appointing appropriate fiduciaries, the public guardian shall follow
the priorities set forth in Article 2 (commencing with Section 1810)
of Chapter 1 of Part 3.
(3) The public guardian shall take the steps described in
paragraphs (1) and (2) within 15 days of taking possession of an
elder person's property pursuant to this section.
(e) Nothing in this section prevents the county's adult protective
services agency from conducting an investigation regarding the elder
person named in the declaration and providing appropriate services,
in coordination with any actions taken with the public guardian under
this section or an investigation conducted by law enforcement
regarding the elder person.
2953. (a) (1) A public guardian who has taken possession or control
of the property of an elder person pursuant to this chapter is
entitled to petition a court of competent jurisdiction for the
reasonable costs incurred by the public guardian for the protection
of the person or the property, together with reasonable fees for
services, including, but not limited to, reasonable attorneys' fees.
These fees shall be payable from the estate of the elder person if
the person is not deemed competent by the court and if any of the
following apply:
(A) The public guardian or someone else is appointed as the
temporary or general conservator of the estate.
(B) An attorney-in-fact, under a durable power of attorney, or a
trustee, takes steps, or is notified of the need to take steps, to
protect the estate of the elder person.
(C) An action is brought against the alleged financial abuser by
the elder person, his or her conservator, a trustee, a fiduciary, or
a successor in interest of the elder person, arising from a harm that
the public guardian taking charge was intended to prevent or
minimize.
(2) Any costs incurred by the public guardian pursuant to
paragraph (1) shall be compensable as provided in Section 2902. Fees
collected by the public guardian pursuant to this chapter shall be
used for the activities described in this chapter.
(b) When a public guardian has taken possession or control of the
property of an elder person pursuant to this chapter, the public
guardian shall exercise reasonable care to ensure that the reasonable
living expenses and legitimate debts of the elder person are
addressed as well as is practical under the circumstances.
(c) Any person identified as a victim in a declaration described
in Section 2954 may bring an ex parte petition in the superior court
for an order quashing the certification issued by the public guardian
as provided in subdivision (c) of Section 2952.
(1) Upon request by the petitioner, the court may defer filing
fees related to the petition, and order the public guardian to
authorize the release of funds from a financial institution to
reimburse the petitioner the filing fees from assets belonging to the
petitioner, but shall waive filing fees if the petitioner meets the
standards of eligibility established by subparagraph (A) or (B) of
paragraph (6) of subdivision (a) of Section 68511.3 of the Government
Code for the waiver of a filing fee.
(2) The court shall quash the certification if the court
determines that there is insufficient evidence to justify the
imposition on the alleged victim's civil liberties caused by the
certification.
(3) If the court determines that there is sufficient evidence to
justify the imposition on the alleged victim's civil liberties caused
by the certification, the court may, in its discretion, do one or
more of the following:
(A) Order disbursements from the alleged victim's assets, as are
reasonably needed to address the alleged victim's needs.
(B) Appoint a temporary conservator of the alleged victim's
estate, where the facts before the court would be sufficient for the
appointment of a temporary conservator under Section 2250.
(C) Deny the petition.
(D) Award reasonable attorney's fees to the respondent's attorney
from the victim's estate.
2954. A declaration issued by a peace officer under this chapter
shall not be valid unless it substantially complies with the
following form:
DECLARATION
PRINT OR TYPE
1. My name is:
_____________________________________________________.
My badge number is:
_____________________________________________.
My office address and telephone number are:
__________________________________________________________________
__________________________________________________________________
_______________________________________________________________.
2. I am a duly sworn peace officer presently employed by
____________
______________________________, in the County of _____________,
in
the State of California.
3. On ________ (date) I personally interviewed ______________
(victim)
at _____ a.m./p.m. at ________________ (address). The victim
resides at ___________________ (address, telephone number, and
name
of facility, if applicable).
4. There is probable cause to believe that:
(a) ________________________________________________ (Victim)
is substantially unable to manage his or her financial
resources or to resist fraud or undue influence, and
(b) There exists a significant danger the victim will lose all
or
a portion of his or her property as a result of fraud or
misrepresentations or the mental incapacity of the victim, and
(c) There is probable cause to believe that a crime is being
committed against the victim, and
(d) The crime is connected to the victim's inability to manage
his or her financial resources or to resist fraud or undue
influence, and
(e) The victim suffers from that inability as a result of
deficits
in one or more of the following mental functions:
INSTRUCTIONS TO PEACE OFFICER: CHECK ALL BOXES THAT APPLY:
A( ALERTNESS AND ATTENTION
( 1. Levels of arousal. (Lethargic, responds only to
vigorous
and persistent stimulation, stupor.)
( 2. Orientation. Person ____ Time ____ (day, date, month,
season, year), Place ____ (address, town, state),
Situation ____ (why am I here?).
( 3. Ability to attend and concentrate. (Give detailed
answers
from memory, mental ability required to thread a
needle.)
B( INFORMATION PROCESSING
Ability to:
( 1. Remember, i.e., short- and long-term memory, immediate
recall. (Deficits reflected by: forgets question
before
answering, cannot recall names, relatives, past
presidents,
events of past 24 hours.)
( 2. Understand and communicate either verbally or otherwise.
(Deficits reflected by: inability to comprehend
questions,
follow instructions, use words correctly or name
objects;
nonsense words.)
( 3. Recognize familiar objects and persons. (Deficits
reflected
by: inability to recognize familiar faces, objects,
etc.)
( 4. Understand and appreciate quantities. (Perform simple
calculations.)
( 5. Reason using abstract concepts. (Grasp abstract aspects
of
his or her situation; interpret idiomatic expressions or
proverbs.)
( 6. Plan, organize, and carry out actions (assuming physical
ability) in one's own rational self-interest. (Break
complex tasks down into simple steps and carry them
out.)
( 7. Reason logically.
C( THOUGHT DISORDERS
( 1. Severely disorganized thinking. (Rambling, nonsensical,
incoherent, or nonlinear thinking.)
( 2. Hallucinations. (Auditory, visual, olfactory.)
( 3. Delusions. (Demonstrably false belief maintained
without or
against reason or evidence.)
( 4. Uncontrollable or intrusive thoughts. (Unwanted
compulsive
thoughts, compulsive behavior.)
D( ABILITY TO MODULATE MOOD AND AFFECT
Pervasive and persistent or recurrent emotional state which
appears severely inappropriate in degree to the patient's
circumstances.
Encircle the inappropriate mood(s):
Anger Euphoria Helplessness
Anxiety Depression Apathy
Fear Hopelessness Indifference
Panic Despair
5. The property at risk is identified as, but not limited to, the
following:
Bank account located at:________________________________________
(name, telephone number, and address
of the bank branch)
Account number(s):______________________________________________
Securities/other funds located at:______________________________
(name, telephone number,
and address of
financial institution)
Account number(s):______________________________________________
Real property located at:_______________________________________
(address)
Automobile described as: _______________________________________
(make, model/color)
_______________________________________
(license plate number and state)
Other property described as:____________________________________
Other property located at:______________________________________
6. A criminal investigation will ( will not ( be commenced
against ________________________________________________________
(name, address, and telephone number)
for alleged financial abuse.
BLOCKS 1, 2, AND 3 MUST BE CHECKED IN ORDER
FOR THIS DECLARATION TO BE VALID:
( 1. I am a peace officer in the county
identified above.
( 2. I have consulted concerning this case with a supervisor
in the county's adult protective services agency who
has signed below, indicating that he or she concurs
that, based on the information I provided to him
or her, or based on information he or she obtained
independently, this declaration is warranted under
the circumstances.
( 3. I have consulted concerning this case with an
individual qualified to perform a mental status
examination.
_______________________________________________________
Signature of Declarant Peace Officer
_______________________________________________________
Date
_______________________________________________________
Signature of Concurring Adult Protective
Services Supervisor
2955. Nothing in this chapter shall prohibit or restrict a public
guardian from undertaking any other proceeding authorized by law.

Elder Abuse and Neglect

2009-06-23T14:07:00.000-07:00

A Very Prevalent Problem: Elder Abuse and Neglect
While it does not get much play in the news, elder abuse is still a very prevalent problem. This could not be truer than in Southern California with our large number of older adults. Often misconceptions about elder abuse lead to difficulties in recognizing, reporting and addressing the problem.
Abuse of older adults can take many forms. While physical injury can occur, it is not as common as neglecting, psychologically abusing, or financially taking advantage of older adults. Elder neglect can be as obvious as denying food or health services, or a caregiver failing to fulfill some other less obvious responsibility. Self-neglect, when one threatens his or her own health or safety, can also be very difficult to identify and address.
The incidence of elder abuse is another question that is difficult to answer. The reason is that there really has not been a lot of scientific study into elder abuse. The best data is from the National Elder Abuse Incidence Study (NEAIS) done in 1996. Assuming that reported cases of abuse were just the tip of the iceberg, the NEAIS study reported more than a half million cases of elder abuse in 1996 consisting of an overall rate of 1.3 percent of the total population. Other smaller studies put that number at closer to 5-8 percent. That translates to tens of thousands of cases of elder abuse in Southern California this year alone, if not more.
When we look at institutions such as hospitals or nursing homes, the best data comes from a 1998 survey of nurses in New Hampshire nursing homes. A scary 36 percent reported witnessing physical abuse, and 81 percent reported witnessing psychological abuse.
While any older adult can be a victim of abuse, the more likely victims were women (60-75 percent of victims). Adults over 80 years of age were also up to three times more likely to suffer from abuse or neglect. Dementia or other medical conditions requiring more care also put patients at greater risk.
While we like to think that perpetrators of elder abuse are evil strangers, the reality is that relatives commit as much as 90 percent of elder abuse. Adult children make up the largest percentage of abusers in all types of elder abuse.
Signs of abuse can include bruises or injuries that are not consistent with routine accidents, broken glasses, unexpected disappearance of funds or valuables, unpaid bills even when resources are available, and unsafe or unclean living conditions.
In California, contact Steven Peck's Premier Legal toll free at 1-866-999-9085 to talk to an experienced elder abuse and neglect attorney. You do not need proof, just a suspicion, and the law provides immunity for anyone filing a report in good faith. You can even make a report anonymously. Don't be afraid!!!

Congress of California Seniors (CSS)

2009-06-23T13:50:00.000-07:00

Welcome to Seniors.org the official website of the Congress of California Seniors (CCS).
For more than 30 years, the Congress of California Seniors has been a strong voice for millions of California seniors, their families and their communities. Our website is one of the many ways we keep people informed about important issues.
Our website is designed to perform several functions for seniors and those who are interested in senior concerns. Things you can do on our website include:
Learn about the Congress of California Seniors and its educational and advocacy programs
Communicate with our Board of Directors, our staff and our many members across California
Find out about events in your area that impact the lives of seniors
Get schedules for our statewide conferences and regional meetings
Get involved in outreach and educational programs for underserved seniors, on topics such as elder abuse prevention, nutrition for seniors, affordable prescription drugs, health care reform, and others
Join our team to fight for important policies to protect the elderly...in Sacramento, Washington DC, and your local area
Sign up for alerts about pending actions
Read our newsletter on line
Link to hundreds of websites with information of value to seniors.

We welcome your suggestions on how to improve our website and we encourage you to contact us at info@seniors.org. You are welcome to visit our offices in Sacramento, Los Angeles, and Ventura County. Other locations are in the planning stages in other California communities. For more information about CCS, its leadership, key issues and our key allies please use the drop down windows at the top of this page. Thank you for visiting our website.

~Henry L. “Hank” Lacayo State Presidentinfo@seniors.org

CALIFORNIA CODES-PROBATE CODE SECTION 17200-17211

2009-06-21T11:01:00.000-07:00

CALIFORNIA CODES
PROBATE CODE
SECTION 17200-17211

17200.
(a) Except as provided in Section 15800, a trustee or
beneficiary of a trust may petition the court under this chapter
concerning the internal affairs of the trust or to determine the
existence of the trust.

(b) Proceedings concerning the internal affairs of a trust
include, but are not limited to, proceedings for any of the following
purposes:

(1) Determining questions of construction of a trust instrument.

(2) Determining the existence or nonexistence of any immunity,
power, privilege, duty, or right.

(3) Determining the validity of a trust provision.

(4) Ascertaining beneficiaries and determining to whom property
shall pass or be delivered upon final or partial termination of the
trust, to the extent the determination is not made by the trust
instrument.

(5) Settling the accounts and passing upon the acts of the
trustee, including the exercise of discretionary powers.

(6) Instructing the trustee.

(7) Compelling the trustee to report information about the trust
or account to the beneficiary, if (A) the trustee has failed to
submit a requested report or account within 60 days after written
request of the beneficiary and (B) no report or account has been made
within six months preceding the request.

(8) Granting powers to the trustee.

(9) Fixing or allowing payment of the trustee's compensation or
reviewing the reasonableness of the trustee's compensation.

(10) Appointing or removing a trustee.

(11) Accepting the resignation of a trustee.

(12) Compelling redress of a breach of the trust by any available
remedy.

(13) Approving or directing the modification or termination of the
trust.

(14) Approving or directing the combination or division of trusts.

(15) Amending or conforming the trust instrument in the manner
required to qualify a decedent's estate for the charitable estate tax
deduction under federal law, including the addition of mandatory
governing instrument requirements for a charitable remainder trust as
required by final regulations and rulings of the United States
Internal Revenue Service.

(16) Authorizing or directing transfer of a trust or trust
property to or from another jurisdiction.

(17) Directing transfer of a testamentary trust subject to
continuing court jurisdiction from one county to another.

(18) Approving removal of a testamentary trust from continuing
court jurisdiction.

(19) Reforming or excusing compliance with the governing
instrument of an organization pursuant to Section 16105.

(20) Determining the liability of the trust for any debts of a
deceased settlor. However, nothing in this paragraph shall provide
standing to bring an action concerning the internal affairs of the
trust to a person whose only claim to the assets of the decedent is
as a creditor.

(21) Determining petitions filed pursuant to Section 15687 and
reviewing the reasonableness of compensation for legal services
authorized under that section. In determining the reasonableness of
compensation under this paragraph, the court may consider, together
with all other relevant circumstances, whether prior approval was
obtained pursuant to Section 15687.

(22) If a member of the State Bar of California has transferred
the economic interest of his or her practice to a trustee and if the
member is a deceased member under Section 9764, a petition may be
brought to appoint a practice administrator. The procedures,
including, but not limited to, notice requirements, that apply to the
appointment of a practice administrator for a deceased member shall
apply to the petition brought under this section.

(23) If a member of the State Bar of California has transferred
the economic interest of his or her practice to a trustee and if the
member is a disabled member under Section 2468, a petition may be
brought to appoint a practice administrator. The procedures,
including, but not limited to, notice requirements, that apply to the
appointment of a practice administrator for a disabled member shall
apply to the petition brought under this section.

(c) The court may, on its own motion, set and give notice of an
order to show cause why a trustee should not be removed for failing
to register in the Statewide Registry under Section 2850.

17200.1.
All proceedings concerning the transfer of property of the
trust shall be conducted pursuant to the provisions of Part 19
(commencing with Section 850) of Division 2.

17201.
A proceeding under this chapter is commenced by filing a
petition stating facts showing that the petition is authorized under
this chapter. The petition shall also state the grounds of the
petition and the names and addresses of each person entitled to
notice of the petition.

17202.
The court may dismiss a petition if it appears that the
proceeding is not reasonably necessary for the protection of the
interests of the trustee or beneficiary.

17203.
(a) At least 30 days before the time set for the hearing on
the petition, the petitioner shall cause notice of hearing to be
mailed to all of the following persons:

(1) All trustees.

(2) All beneficiaries, subject to Chapter 2 (commencing with
Section 15800) of Part 3.

(3) The Attorney General, if the petition relates to a charitable
trust subject to the jurisdiction of the Attorney General.

(b) At least 30 days before the time set for hearing on the
petition, the petitioner shall cause notice of the hearing and a copy
of the petition to be served in the manner provided in Chapter 4
(commencing with Section 413.10) of Title 5 of Part 2 of the Code of
Civil Procedure on any person, other than a trustee or beneficiary,
whose right, title, or interest would be affected by the petition and
who does not receive notice pursuant to subdivision (a). The court
may not shorten the time for giving notice under this subdivision.

(c) If a person to whom notice otherwise would be given has been
deceased for at least 40 days, and no personal representative has
been appointed for the estate of that person, and the deceased person'
s right, title, or interest has not passed to any other person
pursuant to Division 8 (commencing with Section 13000) or otherwise,
notice may instead be given to the following persons:

(1) Each heir and devisee of the decedent, and all persons named
as executors of the will of the decedent, so far as known to the
petitioner.

(2) Each person serving as guardian or conservator of the decedent
at the time of the decedent's death, so far as known to the
petitioner.

17204.
(a) If proceedings involving a trust are pending, a
beneficiary of the trust may, in person or by attorney, file with the
court clerk where the proceedings are pending a written request
stating that the beneficiary desires special notice of the filing of
petitions in the proceeding relating to any or all of the purposes
described in Section 17200 and giving an address for receiving notice
by mail. A copy of the request shall be personally delivered or
mailed to the trustee or the trustee's attorney. If personally
delivered, the request is effective when it is delivered. If mailed,
the request is effective when it is received. When the original of
the request is filed with the court clerk, it shall be accompanied by
a written admission or proof of service. A request for special
notice may be modified or withdrawn in the same manner as provided
for the making of the initial request.

(b) (1) An interested person may request special notice in the
same manner as a beneficiary under subdivision (a), for the purpose
set forth in paragraph (9) of subdivision (b) of Section 17200. The
request for special notice shall be accompanied by a verified
statement of the person's interest.

(2) For purposes set forth in paragraphs (2), (4) to (6),
inclusive, (8), (12), (16), (20), and (21) of subdivision (b) of
Section 17200, an interested person may petition the court for an
order for special notice of proceedings involving a trust. The
petition shall include a verified statement of the creditor's
interest and may be served on the trustee or the trustee's attorney
by personal delivery or in the manner required by Section 1215. The
petition may be made by ex parte application.

(3) For purposes of this subdivision, an "interested person" means
only a creditor of a trust or, if the trust has become irrevocable
upon the death of a trustor, a creditor of the trustor.

(4) This section does not confer standing on an interested person
if standing does not otherwise exist.

(c) Except as provided in subdivision (d), after serving and
filing a request and proof of service pursuant to subdivision (a) or
paragraph (1) of subdivision (b), the beneficiary or the interested
person is entitled to notice pursuant to Section 17203. If the
petition of an interested person filed pursuant to paragraph (2) of
subdivision (b) is granted by the court, the interested person is
entitled to notice pursuant to Section 17203.

(d) A request for special notice made by a beneficiary whose right
to notice is restricted by Section 15802 is not effective.

17205.
If a trustee or beneficiary has served and filed either a
notice of appearance, in person or by counsel, directed to the
petitioner or the petitioner's counsel in connection with a
particular petition and proceeding or a written request for a copy of
the petition, and has given an address to which notice or a copy of
the petition may be mailed or delivered, the petitioner shall cause a
copy of the petition to be mailed to that person within five days
after service of the notice of appearance or receipt of the request.

17206.
The court in its discretion may make any orders and take any
other action necessary or proper to dispose of the matters presented
by the petition, including appointment of a temporary trustee to
administer the trust in whole or in part.

17209.
The administration of trusts is intended to proceed
expeditiously and free of judicial intervention, subject to the
jurisdiction of the court.

17210.
In a case involving a charitable trust subject to the
jurisdiction of the Attorney General, the Attorney General may
petition under this chapter.

17211.
(a) If a beneficiary contests the trustee's account and the
court determines that the contest was without reasonable cause and in
bad faith, the court may award against the contestant the
compensation and costs of the trustee and other expenses and costs of
litigation, including attorney's fees, incurred to defend the
account. The amount awarded shall be a charge against any interest
of the beneficiary in the trust. The contestant shall be personally
liable for any amount that remains unsatisfied.

(b) If a beneficiary contests the trustee's account and the court
determines that the trustee's opposition to the contest was without
reasonable cause and in bad faith, the court may award the contestant
the costs of the contestant and other expenses and costs of
litigation, including attorney's fees, incurred to contest the
account. The amount awarded shall be a charge against the
compensation or other interest of the trustee in the trust. The
trustee shall be personally liable and on the bond, if any, for any
amount that remains unsatisfied.

CALIFORNIA CODES-PROBATE CODE SECTION 16460-16465

2009-06-21T09:56:00.000-07:00

CALIFORNIA CODES
PROBATE CODE
SECTION 16460-16465

16460.
(a) Unless a claim is previously barred by adjudication,
consent, limitation, or otherwise:

(1) If a beneficiary has received an interim or final account in
writing, or other written report, that adequately discloses the
existence of a claim against the trustee for breach of trust, the
claim is barred as to that beneficiary unless a proceeding to assert
the claim is commenced within three years after receipt of the
account or report. An account or report adequately discloses
existence of a claim if it provides sufficient information so that
the beneficiary knows of the claim or reasonably should have inquired
into the existence of the claim.

(2) If an interim or final account in writing or other written
report does not adequately disclose the existence of a claim against
the trustee for breach of trust or if a beneficiary does not receive
any written account or report, the claim is barred as to that
beneficiary unless a proceeding to assert the claim is commenced
within three years after the beneficiary discovered, or reasonably
should have discovered, the subject of the claim.

(b) For the purpose of subdivision (a), a beneficiary is deemed to
have received an account or report, as follows:

(1) In the case of an adult who is reasonably capable of
understanding the account or report, if it is received by the adult
personally.

(2) In the case of an adult who is not reasonably capable of
understanding the account or report, if it is received by the person'
s legal representative, including a guardian ad litem or other person
appointed for this purpose.

(3) In the case of a minor, if it is received by the minor's
guardian or, if the minor does not have a guardian, if it is received
by the minor's parent so long as the parent does not have a conflict
of interest.

(c) A written account or report under this section may, but need
not, satisfy the requirements of Section 16061 or 16063 or any other
provision.

16461.
(a) Except as provided in subdivision (b), (c), or (d), the
trustee can be relieved of liability for breach of trust by
provisions in the trust instrument.

(b) A provision in the trust instrument is not effective to
relieve the trustee of liability (1) for breach of trust committed
intentionally, with gross negligence, in bad faith, or with reckless
indifference to the interest of the beneficiary, or (2) for any
profit that the trustee derives from a breach of trust.

(c) Subject to subdivision (b), a provision in a trust instrument
that releases the trustee from liability if a beneficiary fails to
object to an item in an interim or final account or other written
report within a specified time period is effective only if all of the
following conditions are met:

(1) The account or report sets forth the item.

(2) The period specified in the trust instrument for the
beneficiary to object is not less than 180 days, or the trustee
elects to follow the procedure provided in subdivision (d).

(3) Written notice in 12-point boldface type is provided to a
beneficiary with the account or report in the following form:

NOTICE TO BENEFICIARIES

YOU HAVE (insert "180 days" or the period specified in the trust
instrument, whichever is longer) FROM YOUR RECEIPT OF THIS ACCOUNT OR
REPORT TO MAKE AN OBJECTION TO ANY ITEM SET FORTH IN THIS ACCOUNT OR
REPORT. ANY OBJECTION YOU MAKE MUST BE IN WRITING; IT MUST BE
DELIVERED TO THE TRUSTEE WITHIN THE PERIOD STATED ABOVE; AND IT MUST
STATE YOUR OBJECTION. YOUR FAILURE TO DELIVER A WRITTEN OBJECTION TO
THE TRUSTEE WITHIN THE PERIOD STATED ABOVE WILL PERMANENTLY PREVENT
YOU FROM LATER ASSERTING THIS OBJECTION AGAINST THE TRUSTEE. IF YOU
DO MAKE AN OBJECTION TO THE TRUSTEE, THE THREE-YEAR PERIOD PROVIDED
IN SECTION 16460 OF THE PROBATE CODE FOR COMMENCEMENT OF LITIGATION
WILL APPLY TO CLAIMS BASED ON YOUR OBJECTION AND WILL BEGIN TO RUN ON
THE DATE THAT YOU RECEIVE THIS ACCOUNT OR REPORT.

(d) A provision in a trust instrument that provides for a period
less than 180 days to object to an item in an account or report shall
be ineffective to release the trustee from liability. A trustee of
a trust created by an instrument with an ineffective period may elect
to be governed by the provisions of subdivision (c) by complying
with the requirements of subdivision (c), except that "180 days"
shall be substituted in the notice form for the ineffective period.

(e) Subject to subdivision (b), a beneficiary who fails to object
in writing to an account or report that complies with the
requirements of subdivision (c) within the specified, valid period
shall be barred from asserting any claim against the trustee
regarding an item that is adequately disclosed in the account or
report. An item is adequately disclosed if the disclosure regarding
the item meets the requirements of paragraph (1) of subdivision (a)
of Section 16460.

(f) Except as provided in subdivision (a) of Section 16460, the
trustee may not be released from liability as to any claim based on a
written objection made by a beneficiary if the objection is
delivered to the trustee within the specified, effective period. If
a beneficiary has filed a written objection to an account or report
that complies with the requirements of subdivision (c) within the
specified, valid period that concerns an item that affects any other
beneficiary of the trust, any affected beneficiary may join in the
objection anytime within the specified, valid period or while the
resolution of the objection is pending, whichever is later. This
section is not intended to establish a class of beneficiaries for
actions on an account and report or provide that the action of one
beneficiary is for the benefit of all beneficiaries. This section
does not create a duty for any trustee to notify beneficiaries of
objections or resolution of objections.

(g) Provided that a beneficiary has filed a written objection to
an account or report that complies with the requirements of
subdivision (c) within the specified, valid period, a supplemental
written objection may be delivered in the same manner as the
objection not later than 180 days after the receipt of the account or
report or no later than the period specified in the trust
instrument, whichever is longer.

(h) Compliance with subdivision (c) excuses compliance with
paragraph (6) of subdivision (a) of Section 16063 for the account or
report to which that notice relates.

(i) Subject to subdivision (b), if proper notice has been given
and a beneficiary has not made a timely objection, the trustee is not
liable for any other claims adequately disclosed by any item in the
account or report.

(j) Subdivisions (c) to (i), inclusive, apply to all accounts and
reports submitted after the effective date of the act adding these
subdivisions.

16462.
(a) Notwithstanding Section 16461, a trustee of a revocable
trust is not liable to a beneficiary for any act performed or omitted
pursuant to written directions from the person holding the power to
revoke, including a person to whom the power to direct the trustee is
delegated.

(b) Subdivision (a) applies to a trust that is revocable in part
with respect to the interest of the beneficiary in that part of the
trust property.

16463.
(a) Except as provided in subdivisions (b) and (c), a
beneficiary may not hold the trustee liable for an act or omission of
the trustee as a breach of trust if the beneficiary consented to the
act or omission before or at the time of the act or omission.

(b) The consent of the beneficiary does not preclude the
beneficiary from holding the trustee liable for a breach of trust in
any of the following circumstances:

(1) Where the beneficiary was under an incapacity at the time of
the consent or of the act or omission.

(2) Where the beneficiary at the time consent was given did not
know of his or her rights and of the material facts (A) that the
trustee knew or should have known and (B) that the trustee did not
reasonably believe that the beneficiary knew.

(3) Where the consent of the beneficiary was induced by improper
conduct of the trustee.

(c) Where the trustee has an interest in the transaction adverse
to the interest of the beneficiary, the consent of the beneficiary
does not preclude the beneficiary from holding the trustee liable for
a breach of trust under any of the circumstances described in
subdivision (b) or where the transaction to which the beneficiary
consented was not fair and reasonable to the beneficiary.

16464.
(a) Except as provided in subdivision (b), a beneficiary may
be precluded from holding the trustee liable for a breach of trust
by the beneficiary's release or contract effective to discharge the
trustee's liability to the beneficiary for that breach.

(b) A release or contract is not effective to discharge the
trustee's liability for a breach of trust in any of the following
circumstances:

(1) Where the beneficiary was under an incapacity at the time of
making the release or contract.

(2) Where the beneficiary did not know of his or her rights and of
the material facts (A) that the trustee knew or reasonably should
have known and (B) that the trustee did not reasonably believe that
the beneficiary knew.

(3) Where the release or contract of the beneficiary was induced
by improper conduct of the trustee.

(4) Where the transaction involved a bargain with the trustee that
was not fair and reasonable.

16465.
(a) Except as provided in subdivision (b), if the trustee,
in breach of trust, enters into a transaction that the beneficiary
may at his or her option reject or affirm, and the beneficiary
affirms the transaction, the beneficiary shall not thereafter reject
it and hold the trustee liable for any loss occurring after the
trustee entered into the transaction.

(b) The affirmance of a transaction by the beneficiary does not
preclude the beneficiary from holding a trustee liable for a breach
of trust if, at the time of the affirmance, any of the following
circumstances existed:

(1) The beneficiary was under an incapacity.

(2) The beneficiary did not know of his or her rights and of the
material facts (A) that the trustee knew or reasonably should have
known and (B) that the trustee did not reasonably believe that the
beneficiary knew.

(3) The affirmance was induced by improper conduct of the trustee.

(4) The transaction involved a bargain with the trustee that was
not fair and reasonable.

CALIFORNIA CODES-PROBATE CODE SECTION 16060-16064

2009-06-21T09:47:00.000-07:00

CALIFORNIA CODES
PROBATE CODE
SECTION 16060-16064

16060.
The trustee has a duty to keep the beneficiaries of the
trust reasonably informed of the trust and its administration.

16060.5.
As used in this article, "terms of the trust" means the
written trust instrument of an irrevocable trust or those provisions
of a written trust instrument in effect at the settlor's death that
describe or affect that portion of a trust that has become
irrevocable at the death of the settlor. In addition, "terms of the
trust" includes, but is not limited to, signatures, amendments,
disclaimers, and any directions or instructions to the trustee that
affect the disposition of the trust. "Terms of the trust" does not
include documents which were intended to affect disposition only
while the trust was revocable. If a trust has been completely
restated, "terms of the trust" does not include trust instruments or
amendments which are superseded by the last restatement before the
settlor's death, but it does include amendments executed after the
restatement. "Terms of the trust" also includes any document
irrevocably exercising a power of appointment over the trust or over
any portion of the trust which has become irrevocable.

16061.
Except as provided in Section 16064, on reasonable request
by a beneficiary, the trustee shall provide the beneficiary with a
report of information about the assets, liabilities, receipts, and
disbursements of the trust, the acts of the trustee, and the
particulars relating to the administration of the trust relevant to
the beneficiary's interest, including the terms of the trust.

16061.5.
(a) When a revocable trust or any portion of a revocable
trust becomes irrevocable because of the death of one or more of the
settlors of the trust, or because, by the express terms of the trust,
the trust becomes irrevocable within one year of the death of a
settlor because of a contingency related to the death of one or more
of the settlors of the trust, the trustee shall provide a true and
complete copy of the terms of the irrevocable trust, or irrevocable
portion of the trust, to any beneficiary of the trust who requests it
and to any heir of a deceased settlor who requests it.

(b) The trustee shall, for purposes of this section, rely upon any
final judicial determination of heirship. However, the trustee
shall have discretion to make a good faith determination by any
reasonable means of the heirs of a deceased settlor in the absence of
a final judicial determination of heirship known to the trustee.

16061.7.
(a) A trustee shall serve a notification by the trustee as
described in this section in the following events:

(1) When a revocable trust or any portion thereof becomes
irrevocable because of the death of one or more of the settlors of
the trust, or because, by the express terms of the trust, the trust
becomes irrevocable within one year of the death of a settlor because
of a contingency related to the death of one or more of the settlors
of the trust.

(2) Whenever there is a change of trustee of an irrevocable trust.
The duty to serve the notification by the trustee is the duty of
the continuing or successor trustee, and any one cotrustee may serve
the notification.

(b) The notification by the trustee required by subdivision (a)
shall be served on each of the following:

(1) Each beneficiary of the irrevocable trust or irrevocable
portion of the trust, subject to the limitations of Section 15804.

(2) Each heir of the deceased settlor, if the event that requires
notification is the death of a settlor or irrevocability within one
year of the death of the settlor of the trust by the express terms of
the trust because of a contingency related to the death of a
settlor.

(3) If the trust is a charitable trust subject to the supervision
of the Attorney General, to the Attorney General.

(c) A trustee shall, for purposes of this section, rely upon any
final judicial determination of heirship, known to the trustee, but
the trustee shall have discretion to make a good faith determination
by any reasonable means of the heirs of a deceased settlor in the
absence of a final judicial determination of heirship known to the
trustee.

(d) The trustee need not provide a copy of the notification by
trustee to any beneficiary or heir (1) known to the trustee but who
cannot be located by the trustee after reasonable diligence or (2)
unknown to the trustee.

(e) The notification by trustee shall be served by mail to the
last known address, pursuant to Section 1215, or by personal
delivery.

(f) The notification by trustee shall be served not later than 60
days following the occurrence of the event requiring service of the
notification by trustee, or 60 days after the trustee became aware
of the existence of a person entitled to receive notification by
trustee, if that person was not known to the trustee on the
occurrence of the event requiring service of the notification. If
there is a vacancy in the office of the trustee on the date of the
occurrence of the event requiring service of the notification by
trustee, or if that event causes a vacancy, then the 60-day period
for service of the notification by trustee commences on the date the
new trustee commences to serve as trustee.

(g) The notification by trustee shall contain the following
information:

(1) The identity of the settlor or settlors of the trust and the
date of execution of the trust instrument.

(2) The name, mailing address and telephone number of each trustee
of the trust.

(3) The address of the physical location where the principal place
of administration of the trust is located, pursuant to Section
17002.

(4) Any additional information that may be expressly required by
the terms of the trust instrument.

(5) A notification that the recipient is entitled, upon reasonable
request to the trustee, to receive from the trustee a true and
complete copy of the terms of the trust.

(h) If the notification by the trustee is served because a
revocable trust or any portion of it has become irrevocable because
of the death of one or more settlors of the trust, or because, by the
express terms of the trust, the trust becomes irrevocable within one
year of the death of a settlor because of a contingency related to
the death of one or more of the settlors of the trust, the
notification by the trustee shall also include a warning, set out in
a separate paragraph in not less than 10-point boldface type, or a
reasonable equivalent thereof, that states as follows:

"You may not bring an action to contest the trust more than 120
days from the date this notification by the trustee is served upon
you or 60 days from the date on which a copy of the terms of the
trust is mailed or personally delivered to you during that 120-day
period, whichever is later."

(i) Any waiver by a settlor of the requirement of serving the
notification by trustee required by this section is against public
policy and shall be void.

(j) A trustee may serve a notification by trustee in the form
required by this section on any person in addition to those on whom
the notification by trustee is required to be served. A trustee is
not liable to any person for serving or for not serving the notice on
any person in addition to those on whom the notice is required to be
served. A trustee is not required to serve a notification by
trustee if the event that otherwise requires service of the
notification by trustee occurs before January 1, 1998.

16061.8.
No person upon whom the notification by the trustee is
served pursuant to this chapter may bring an action to contest the
trust more than 120 days from the date the notification by the
trustee is served upon him or her, or 60 days from the day on which a
copy of the terms of the trust is mailed or personally delivered to
him or her during that 120-day period, whichever is later.

16061.9.
(a) A trustee who fails to serve the notification by
trustee as required by Section 16061.7 on a beneficiary shall be
responsible for all damages, attorney's fees, and costs caused by the
failure unless the trustee makes a reasonably diligent effort to
comply with that section.

(b) A trustee who fails to serve the notification by trustee as
required by Section 16061.7 on an heir who is not a beneficiary and
whose identity is known to the trustee shall be responsible for all
damages caused to the heir by the failure unless the trustee shows
that the trustee made a reasonably diligent effort to comply with
that section. For purposes of this subdivision, "reasonably
diligent effort" means that the trustee has sent notice by
first-class mail to the heir at the heir's last mailing address
actually known to the trustee.

(c) A trustee, in exercising discretion with respect to the timing
and nature of distributions of trust assets, may consider the fact
that the period in which a beneficiary or heir could bring an action
to contest the trust has not expired.

16062.
(a) Except as otherwise provided in this section and in
Section 16064, the trustee shall account at least annually, at the
termination of the trust, and upon a change of trustee, to each
beneficiary to whom income or principal is required or authorized in
the trustee's discretion to be currently distributed.

(b) A trustee of a living trust created by an instrument executed
before July 1, 1987, is not subject to the duty to account provided
by subdivision (a).

(c) A trustee of a trust created by a will executed before July 1,
1987, is not subject to the duty to account provided by subdivision
(a), except that if the trust is removed from continuing court
jurisdiction pursuant to Article 2 (commencing with Section 17350) of
Chapter 4 of Part 5, the duty to account provided by subdivision (a)
applies to the trustee.

(d) Except as provided in Section 16064, the duty of a trustee to
account pursuant to former Section 1120.1a of the Probate Code (as
repealed by Chapter 820 of the Statutes of 1986), under a trust
created by a will executed before July 1, 1977, which has been
removed from continuing court jurisdiction pursuant to former Section
1120.1a, continues to apply after July 1, 1987. The duty to account
under former Section 1120.1a may be satisfied by furnishing an
account that satisfies the requirements of Section 16063.

(e) Any limitation or waiver in a trust instrument of the
obligation to account is against public policy and shall be void as
to any sole trustee who is a disqualified person as defined in
Section 21350.5.

16063.
(a) An account furnished pursuant to Section 16062 shall
contain the following information:

(1) A statement of receipts and disbursements of principal and
income that have occurred during the last complete fiscal year of the
trust or since the last account.

(2) A statement of the assets and liabilities of the trust as of
the end of the last complete fiscal year of the trust or as of the
end of the period covered by the account.

(3) The trustee's compensation for the last complete fiscal year
of the trust or since the last account.

(4) The agents hired by the trustee, their relationship to the
trustee, if any, and their compensation, for the last complete fiscal
year of the trust or since the last account.

(5) A statement that the recipient of the account may petition the
court pursuant to Section 17200 to obtain a court review of the
account and of the acts of the trustee.

(6) A statement that claims against the trustee for breach of
trust may not be made after the expiration of three years from the
date the beneficiary receives an account or report disclosing facts
giving rise to the claim.

(b) All accounts filed to be approved by a court shall be
presented in the manner provided in Chapter 4 (commencing with
Section 1060) of Part 1 of Division 3.

16064.
The trustee is not required to report information or account
to a beneficiary in any of the following circumstances:

(a) To the extent the trust instrument waives the report or
account, except that no waiver described in subdivision (e) of
Section 16062 shall be valid or enforceable. Regardless of a waiver
of accounting in the trust instrument, upon a showing that it is
reasonably likely that a material breach of the trust has occurred,
the court may compel the trustee to report information about the
trust and to account.

(b) In the case of a beneficiary of a revocable trust, as provided
in Section 15800, for the period when the trust may be revoked.

(c) As to a beneficiary who has waived in writing the right to a
report or account. A waiver of rights under this subdivision may be
withdrawn in writing at any time as to the most recent account and
future accounts. A waiver has no effect on the beneficiary's right
to petition for a report or account pursuant to Section 17200.

(d) Where the beneficiary and the trustee are the same person.

CALIFORNIA CODES-PROBATE CODE SECTION 15400-15414

2009-06-21T09:30:00.000-07:00

CALIFORNIA CODES
PROBATE CODE
SECTION 15400-15414

15400.
Unless a trust is expressly made irrevocable by the trust
instrument, the trust is revocable by the settlor. This section
applies only where the settlor is domiciled in this state when the
trust is created, where the trust instrument is executed in this
state, or where the trust instrument provides that the law of this
state governs the trust.

15401.
(a) A trust that is revocable by the settlor may be revoked
in whole or in part by any of the following methods:

(1) By compliance with any method of revocation provided in the
trust instrument.

(2) By a writing (other than a will) signed by the settlor and
delivered to the trustee during the lifetime of the settlor. If the
trust instrument explicitly makes the method of revocation provided
in the trust instrument the exclusive method of revocation, the trust
may not be revoked pursuant to this paragraph.

(b) Unless otherwise provided in the instrument, if a trust is
created by more than one settlor, each settlor may revoke the trust
as to the portion of the trust contributed by that settlor, except as
provided in Section 761 of the Family Code.

(c) A trust may not be modified or revoked by an attorney in fact
under a power of attorney unless it is expressly permitted by the
trust instrument.

(d) Nothing in this section limits the authority to modify or
terminate a trust pursuant to Section 15403 or 15404 in an
appropriate case.

(e) The manner of revocation of a trust revocable by the settlor
that was created by an instrument executed before July 1, 1987, is
governed by prior law and not by this section.

15402.
Unless the trust instrument provides otherwise, if a trust
is revocable by the settlor, the settlor may modify the trust by the
procedure for revocation.

15403.
(a) Except as provided in subdivision (b), if all
beneficiaries of an irrevocable trust consent, they may compel
modification or termination of the trust upon petition to the court.

(b) If the continuance of the trust is necessary to carry out a
material purpose of the trust, the trust cannot be modified or
terminated unless the court, in its discretion, determines that the
reason for doing so under the circumstances outweighs the interest in
accomplishing a material purpose of the trust. Under this section
the court does not have discretion to permit termination of a trust
that is subject to a valid restraint on transfer of the beneficiary's
interest as provided in Chapter 2 (commencing with Section 15300).

15404.
(a) If the settlor and all beneficiaries of a trust consent,
they may compel the modification or termination of the trust.

(b) If any beneficiary does not consent to the modification or
termination of the trust, upon petition to the court, the other
beneficiaries, with the consent of the settlor, may compel a
modification or a partial termination of the trust if the interests
of the beneficiaries who do not consent are not substantially
impaired.

(c) If the trust provides for the disposition of principal to a
class of persons described only as "heirs" or "next of kin" of the
settlor, or using other words that describe the class of all persons
who would take under the rules of intestacy, the court may limit the
class of beneficiaries whose consent is needed to compel the
modification or termination of the trust to the beneficiaries who are
reasonably likely to take under the circumstances.

15405.
For the purposes of Sections 15403 and 15404, the consent of
a beneficiary who lacks legal capacity, including a minor, or who is
an unascertained or unborn person may be given in proceedings before
the court by a guardian ad litem, if it would be appropriate to do
so. In determining whether to give consent, the guardian ad litem
may rely on general family benefit accruing to living members of the
beneficiary's family as a basis for approving a modification or
termination of the trust.

15406.
In determining the class of beneficiaries whose consent is
necessary to modify or terminate a trust pursuant to Section 15403 or

15404.
the presumption of fertility is rebuttable.

15407.
(a) A trust terminates when any of the following occurs:

(1) The term of the trust expires.

(2) The trust purpose is fulfilled.

(3) The trust purpose becomes unlawful.

(4) The trust purpose becomes impossible to fulfill.

(5) The trust is revoked.

(b) On termination of the trust, the trustee continues to have the
powers reasonably necessary under the circumstances to wind up the
affairs of the trust.

15408.
(a) On petition by a trustee or beneficiary, if the court
determines that the fair market value of the principal of a trust has
become so low in relation to the cost of administration that
continuation of the trust under its existing terms will defeat or
substantially impair the accomplishment of its purposes, the court
may, in its discretion and in a manner that conforms as nearly as
possible to the intention of the settlor, order any of the following:

(1) Termination of the trust.

(2) Modification of the trust.

(3) Appointment of a new trustee.

(b) Notwithstanding subdivision (a), if the trust principal does
not exceed twenty thousand dollars ($20,000) in value, the trustee
has the power to terminate the trust.

(c) The existence of a trust provision restraining transfer of the
beneficiary's interest does not prevent application of this section.

15409.
(a) On petition by a trustee or beneficiary, the court may
modify the administrative or dispositive provisions of the trust or
terminate the trust if, owing to circumstances not known to the
settlor and not anticipated by the settlor, the continuation of the
trust under its terms would defeat or substantially impair the
accomplishment of the purposes of the trust. In this case, if
necessary to carry out the purposes of the trust, the court may order
the trustee to do acts that are not authorized or are forbidden by
the trust instrument.

(b) The court shall consider a trust provision restraining
transfer of the beneficiary's interest as a factor in making its
decision whether to modify or terminate the trust, but the court is
not precluded from exercising its discretion to modify or terminate
the trust solely because of a restraint on transfer.

15410.
At the termination of a trust, the trust property shall be
disposed of as follows:

(a) In the case of a trust that is revoked by the settlor, as
directed by the settlor.

(b) In the case of a trust that is terminated by the consent of
the settlor and all beneficiaries, as agreed by the settlor and all
beneficiaries.

(c) In any other case, as provided in the trust instrument or in a
manner directed by the court that conforms as nearly as possible to
the intention of the settlor as expressed in the trust instrument.

(d) If a trust is terminated by the trustee pursuant to
subdivision (b) of Section 15408, the trust property may be
distributed as determined by the trustee pursuant to the standard
provided in subdivision (c) without the need for a court order.
Where the trust instrument does not provide a manner of distribution
at termination and the settlor's intent is not adequately expressed
in the trust instrument, the trustee may distribute the trust
property to the living beneficiaries on an actuarial basis.

15411.
If the terms of two or more trusts are substantially
similar, on petition by a trustee or beneficiary, the court, for good
cause shown, may combine the trusts if the court determines that
administration as a single trust will not defeat or substantially
impair the accomplishment of the trust purposes or the interests of
the beneficiaries.

15412.
On petition by a trustee or beneficiary, the court, for good
cause shown, may divide a trust into two or more separate trusts, if
the court determines that dividing the trust will not defeat or
substantially impair the accomplishment of the trust purposes or the
interests of the beneficiaries.

15413.
A trust provision, express or implied, that the trust may
not be terminated is ineffective insofar as it purports to be
applicable after the expiration of the longer of the periods provided
by the statutory rule against perpetuities, Article 2 (commencing
with Section 21205) of Chapter 1 of Part 2 of Division 11.

15414.
Notwithstanding any other provision in this chapter, if a
trust continues in existence after the expiration of the longer of
the periods provided by the statutory rule against perpetuities,
Article 2 (commencing with Section 21205) of Chapter 1 of Part 2 of
Division 11, the trust may be terminated in either of the following
manners:

(a) On petition by a majority of the beneficiaries.

(b) On petition by the Attorney General or by any person who would
be affected by the termination, if the court finds that the
termination would be in the public interest or in the best interest
of a majority of the persons who would be affected by the
termination.

CALIFORNIA CODES-PROBATE CODE SECTION 4120-4130

2009-06-21T08:53:00.000-07:00

CALIFORNIA CODES
PROBATE CODE
SECTION 4120-4130

4120.
A natural person having the capacity to contract may execute
a power of attorney.

4121.
A power of attorney is legally sufficient if all of the
following requirements are satisfied:

(a) The power of attorney contains the date of its execution.

(b) The power of attorney is signed either

(1) by the principal or

(2) in the principal's name by another adult in the principal's
presence and at the principal's direction.

(1) acknowledged before a
notary public or

(2) signed by at least two witnesses who satisfy the
requirements of Section 4122.

4122.

If the power of attorney is signed by witnesses, as provided
in Section 4121, the following requirements shall be satisfied:

(a) The witnesses shall be adults.

(b) The attorney-in-fact may not act as a witness.

(c) Each witness signing the power of attorney shall witness
either the signing of the instrument by the principal or the
principal's acknowledgment of the signature or the power of attorney.

4123.

(a) In a power of attorney under this division, a principal
may grant authority to an attorney-in-fact to act on the principal's
behalf with respect to all lawful subjects and purposes or with
respect to one or more express subjects or purposes. The
attorney-in-fact may be granted authority with regard to the
principal's property, personal care, or any other matter.

(b) With regard to property matters, a power of attorney may grant
authority to make decisions concerning all or part of the principal'
s real and personal property, whether owned by the principal at the
time of the execution of the power of attorney or thereafter acquired
or whether located in this state or elsewhere, without the need for
a description of each item or parcel of property.

(c) With regard to personal care, a power of attorney may grant
authority to make decisions relating to the personal care of the
principal, including, but not limited to, determining where the
principal will live, providing meals, hiring household employees,
providing transportation, handling mail, and arranging recreation and
entertainment.

4124.

A durable power of attorney is a power of attorney by which a
principal designates another person as attorney-in-fact in writing
and the power of attorney contains any of the following statements:

(a) "This power of attorney shall not be affected by subsequent
incapacity of the principal."

(b) "This power of attorney shall become effective upon the
incapacity of the principal."

(c) Similar words showing the intent of the principal that the
authority conferred shall be exercisable notwithstanding the
principal's subsequent incapacity.

4125.

All acts done by an attorney-in-fact pursuant to a durable
power of attorney during any period of incapacity of the principal
have the same effect and inure to the benefit of and bind the
principal and the principal's successors in interest as if the
principal had capacity.

4126.

(a) A principal may nominate, by a durable power of attorney,
a conservator of the person or estate or both, or a guardian of the
person or estate or both, for consideration by the court if
protective proceedings for the principal's person or estate are
thereafter commenced.

(b) If the protective proceedings are conservatorship proceedings
in this state, the nomination has the effect provided in Section 1810
and the court shall give effect to the most recent writing executed
in accordance with Section 1810, whether or not the writing is a
durable power of attorney.

4127.

Unless a power of attorney states a time of termination, the
authority of the attorney-in-fact is exercisable notwithstanding any
lapse of time since execution of the power of attorney.

4128.

(a) Subject to subdivision

(b), a printed form of a durable
power of attorney that is sold or otherwise distributed in this state
for use by a person who does not have the advice of legal counsel
shall contain, in not less than 10-point boldface type or a
reasonable equivalent thereof, the following warning statements:

Notice to Person Executing Durable Power of Attorney

A durable power of attorney is an important legal document. By
signing the durable power of attorney, you are authorizing another
person to act for you, the principal. Before you sign this durable
power of attorney, you should know these important facts:

Your agent (attorney-in-fact) has no duty to act unless you and
your agent agree otherwise in writing.

This document gives your agent the powers to manage, dispose of,
sell, and convey your real and personal property, and to use your
property as security if your agent borrows money on your behalf.

This document does not give your agent the power to accept or receive
any of your property, in trust or otherwise, as a gift, unless you
specifically authorize the agent to accept or receive a gift.

Your agent will have the right to receive reasonable payment for
services provided under this durable power of attorney unless you
provide otherwise in this power of attorney.

The powers you give your agent will continue to exist for your
entire lifetime, unless you state that the durable power of attorney
will last for a shorter period of time or unless you otherwise
terminate the durable power of attorney. The powers you give your
agent in this durable power of attorney will continue to exist even
if you can no longer make your own decisions respecting the
management of your property.

You can amend or change this durable power of attorney only by
executing a new durable power of attorney or by executing an
amendment through the same formalities as an original. You have the
right to revoke or terminate this durable power of attorney at any
time, so long as you are competent.

This durable power of attorney must be dated and must be
acknowledged before a notary public or signed by two witnesses. If
it is signed by two witnesses, they must witness either (1) the
signing of the power of attorney or (2) the principal's signing or
acknowledgment of his or her signature. A durable power of attorney
that may affect real property should be acknowledged before a notary
public so that it may easily be recorded.

You should read this durable power of attorney carefully. When
effective, this durable power of attorney will give your agent the
right to deal with property that you now have or might acquire in the
future. The durable power of attorney is important to you. If you
do not understand the durable power of attorney, or any provision of
it, then you should obtain the assistance of an attorney or other
qualified person.

Notice to Person Accepting the Appointment as Attorney-in-Fact

By acting or agreeing to act as the agent (attorney-in-fact) under
this power of attorney you assume the fiduciary and other legal
responsibilities of an agent. These responsibilities include:

1. The legal duty to act solely in the interest of the principal
and to avoid conflicts of interest.

2. The legal duty to keep the principal's property separate and
distinct from any other property owned or controlled by you.
You may not transfer the principal's property to yourself without
full and adequate consideration or accept a gift of the principal's
property unless this power of attorney specifically authorizes you to
transfer property to yourself or accept a gift of the principal's
property. If you transfer the principal's property to yourself
without specific authorization in the power of attorney, you may be
prosecuted for fraud and/or embezzlement. If the principal is 65
years of age or older at the time that the property is transferred to
you without authority, you may also be prosecuted for elder abuse
under Penal Code Section 368. In addition to criminal prosecution,
you may also be sued in civil court.

I have read the foregoing notice and I understand the legal and
fiduciary duties that I assume by acting or agreeing to act as the
agent (attorney-in-fact) under the terms of this power of attorney.

Date:

____________________________
(Signature of agent)

_____________________________
(Print name of agent)

(b) Nothing in subdivision (a) invalidates any transaction in
which a third person relied in good faith on the authority created by
the durable power of attorney.

4129.

(a) In a springing power of attorney, the principal may
designate one or more persons who, by a written declaration under
penalty of perjury, have the power to determine conclusively that the
specified event or contingency has occurred. The principal may
designate the attorney-in-fact or another person to perform this
function, either alone or jointly with other persons.

(b) A springing power of attorney containing the designation
described in subdivision (a) becomes effective when the person or
persons designated in the power of attorney execute a written
declaration under penalty of perjury that the specified event or
contingency has occurred, and any person may act in reliance on the
written declaration without liability to the principal or to any
other person, regardless of whether the specified event or
contingency has actually occurred.

(c) This section applies to a power of attorney whether executed
before, on, or after January 1, 1991, if the power of attorney
contains the designation described in subdivision (a).

(d) This section does not provide the exclusive method by which a
power of attorney may be limited to take effect on the occurrence of
a specified event or contingency.

4130.

(a) If a principal grants inconsistent authority to one or
more attorneys-in-fact in two or more powers of attorney, the
authority granted last controls to the extent of the inconsistency.

(b) This section is not subject to limitation in the power of
attorney.

CALIFORNIA PROBATE CODE SECTION 250-259

2009-06-21T08:44:00.000-07:00

CALIFORNIA CODES

PROBATE CODE SECTION 250-259

250.

(a) A person who feloniously and intentionally kills the decedent is not entitled to any of the following:

(1) Any property, interest, or benefit under a will of thedecedent, or a trust created by or for the benefit of the decedent orin which the decedent has an interest, including any general orspecial power of appointment conferred by the will or trust on thekiller and any nomination of the killer as executor, trustee,guardian, or conservator or custodian made by the will or trust.

(2) Any property of the decedent by intestate succession.

(3) Any of the decedent's quasi-community property the killerwould otherwise acquire under Section 101 or 102 upon the death ofthe decedent.

(4) Any property of the decedent under Part 5 (commencing withSection 5700) of Division 5.

(5) Any property of the decedent under Part 3 (commencing withSection 6500) of Division 6.

(b) In the cases covered by subdivision (a):

(1) The property interest or benefit referred to in paragraph (1)of subdivision (a) passes as if the killer had predeceased thedecedent and Section 21110 does not apply.

(2) Any property interest or benefit referred to in paragraph (1)of subdivision (a) which passes under a power of appointment and byreason of the death of the decedent passes as if the killer hadpredeceased the decedent, and Section 673 not apply.

(3) Any nomination in a will or trust of the killer as executor,trustee, guardian, conservator, or custodian which becomes effectiveas a result of the death of the decedent shall be interpreted as ifthe killer had predeceased the decedent.

CALIFORNIA ELDER ABUSE LAW - GENERAL INFORMATION

2009-06-21T08:13:00.000-07:00

California Elder Abuse Law - General Information:

What Is Elder Abuse? Elder abuse can be an intentional act (abuse) or a lack of knowledge/ability to provide care to an older person (neglect).

Elder abuse can occur in a variety of ways that include assaultive acts, neglect, financial exploitation and/or psychological or emotional mistreatment. An elderly person is defined as someone who is age 65 or older.

Assault includes causing pain and/or injury by molesting, slapping, bruising, forced sex, cutting, burning, restraining.

Neglect includes refusal or failure to provide adequate care, food, shelter, clothing, medicine, and/or medical aides (glasses, dentures, walkers).

Financial exploitation includes illegal or improper use of cash, credit cards, funds or other assets.

Psychological/emotional mistreatment includes mental suffering or despair caused by name calling, yelling, insulting, ignoring, isolating, threatening, or demanding acts.

Abuse may also include the violation of basic rights such as the right to worship as one chooses, the right to assembly, the freedom to be left alone, and the right to handle oneís personal and financial affairs unless declared incapable of doing so by due process of law.

Indicators Of Elder Abuse.

Signs of elder abuse are noticeable changes in physical conditions and behavioral patterns such as:

Unexplained bruises, cuts, burns

Increased physiological pain

Dehydration or malnourishment

Overly medicated without cause

Unusual confinement

Lack of cleanliness or grooming

Fearful to speak in front of caregiver

Shame, anxiety, embarrassment

Sudden change in mental status

Unusual or large bank withdraws

Unexpected closing of bank accounts

Transfer of assets, deeds, trusts

The signs of elder abuse listed above are generally a combination of factors.

General Profile Of The Abused:

Most often female

Physically or mentally impaired

Dependent physically or mentally

Frequently exhibits behavior problems

General Profile Of The Abuser:

The profile of a person that abuses the elderly may vary but generally can be categorized in one or more of the following:

Often a family member/caregiver inexperienced in providing care

Exhibits ineffective coping skills

Under financial strain

Multiple personal problems

Substance abuser (drugs/alcohol)

Marital conflict or difficulties

Violent family history

Intimidating behavior

Socially isolated with poor self-image

Where To Get Help If Elder Abuse Is Suspected.

If alleged abuse occurs in the community, reports of the abuse may be made to Adult Protective Services or Law Enforcement.

If the alleged abuse occurs in a residential care home or nursing home, reports of the abuse may be made to Law Enforcement or the Long Term Care Ombudsman Program.

In case of emergency and/or immediate attention is required, call 911. Degree of emergency will determine the way abuse should be reported, defined as follows:

What Happens When Elder Abuse Is Reported.

Department of Human Services/Adult Protective Services, Law Enforcement, and the Long Term Care Ombudsman Program, as the primary agencies with a mandate to receive reports of elder abuse, will investigate and take action to correct or remedy the situation, with the consent of the alleged victim. Any action taken is guided by the principles of the least restrictive intervention and an individualís right to self-determination.

California Forms To Obtain A California Order To Prevent Elder Abuse:

Description/

Form

Petition for Protective Orders
EA-100

Response to Petition for Protective Orders
EA-110

Order to Show Cause and Temporary Restraining Order
EA-120

Application and Order for Reissuance of Order
EA-125

Restraining Order After Hearing
EA-130

Proof of Service (personal)
EA-140

Proof of Service (mail)
EA-141

Instructions for Petition for a Protective Order to Prevent Elder or Dependent Adult Abuse
EA-150

Attached Declaration
MC-031

Civil Case Cover Sheet
CM-010

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2008-06-24T22:37:00.000-07:00

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Warning Signs That May Suggest Elder Abuse

Elder abuse, neglect and exploitation are complex issues with multidimensional symptoms and ramifications and many types of warning signs.

A partial list appears below;

feel free to tear these pages out and share them with friends and relatives.

Remember, elder abuse is everyone’s business, and in order to be effective in intervention, we have a lot to be aware of.

Change is a serious stressor for everyone, and it is especially difficult for the elderly.

However, change can signal a warning.

Please notify the appropriate social service agency, law enforcement officer or physician if you suspect any type of neglect, abuse or exploitation.

Be alert to a change in any matter, but particularly to any health, wellness or financial issue, and/or the introduction of a new accountant, lawyer, physician, or any other professional caring for a senior citizen thereby separating the elder from established histories and relationships.

Elder exploitation is often subtle and lost in interpersonal nuances.

Listen carefully.

Any suspicion requires intervention by a trained, licensed professional physician, psychologist or social worker immediately.

Sudden friendships form and/or intensify and cross healthy personal boundaries, for example, the elder can no longer see their own mail.

New medications, vitamin supplements, or other substances are added without the elder being able to explain how, why, when, and who recommended or prescribed it.

Geriatric care is a highly specialized field, and any change to a senior’s care (even if made by another physician) must be reported and/or cleared with the primary care physician.

Medications, especially controlled substances, are missing from or added to a senior citizen’s care regimen.

A relative, friend, neighbor, or any care-giver gives unlikely explanations about finances, medications, and/or changes, and the elder is unaware of, or is unable to explain what arrangements have been made.

If you feel there is any reason to be suspicious, investigate it immediately.

Report it to a professional.

A recent acquaintance communicates an interest or a desire to become involved in an aspect of an elder’s life, especially finances, care-giving, transportation, or companionship, and/or offers or promises to provide care, friendship, or ingratiates him or herself to a senior citizen.

Don’t expect coping and/or other skills to improve.

An elder is unlikely to develop skills, abilities and cognitive ability not present during earlier phases of their lives.

Any appearance to the contrary may indicate that someone else is actively involved.

A relative or care-giver separates and/or isolates the elder from any long established contact, makes excuses when friends or family call or visit, and does not give the elder messages.

Photographs of family members, memorabilia, etc. are missing from an elder’s home.

A Power of Attorney, Will, or any other legal document is drafted, but the senior does not understand it, cannot explain the need for it, and cannot explain or understand what its implications are.

A relative, neighbor or care-giver with no visible means of support or income appears on the scene and/or becomes overly interested in the elder's financial, health or domestic affairs.

Bills are not being paid.

The elder's placement, care, possessions, and “would be” decisions are inconsistent with the amount of his/her assets and/or income and/or previously stated and long established wishes, history, etc.

Checking accounts, credit card statements, financial statements, etc. are sent to a relative, care-giver, or friend and are not accessible to the elder.

At any physician’s office, bank, attorney’s office, insurance company, investment firm, etc., the elder is accompanied by someone who refuses to allow the senior citizen to speak for him/herself, and/or the elder appears nervous, apprehensive, edgy,

or seems uneasy about or fearful of the person accompanying him or her.

The elder is concerned or confused about any valuable including medication, jewelry, money, and/or any other item the elder needs to maintain wellbeing such as glasses, dentures, hearing aids, walkers, etc.

Pay attention to handwriting changes in signatures of a senior citizen on checks, or any other document.

Pay particular attention if the elder signs checks and someone else and/or another style of handwriting fills in the payee and amount sections.

Pay very close attention to checks made out to cash.

The amount of banking activity or spending habits increases, especially after joint accounts are set up and/or someone new starts helping out in any other aspect of a senior citizen’s care.

Family members as caregivers:

Please remember: it’s a misconception that mistreatment in nursing homes is the primary source of elder abuse, neglect and exploitation.

The statistics say otherwise with about 90% of elder abuse and neglect incidents happening within families.

Multigenerational dysfunctional families, greed, ignorance, mental health issues, substance abuse issues, etc. may be at the root cause with many complex issues adding further cloud the dynamics.

Experts link substance abuse issues (particularly alcohol) as a major factor in dysfunctional families.

If anyone in your family is suffering from any substance abuse issue, the risk factors for the elderly climb.

Outsiders as caregivers:

Home healthcare aides offer valuable assistance to seniors who require help to remain independent.

However, those care-givers may be the source of abuse, neglect, or exploitation.

Cost is often a factor in determining who is hired.

Caregivers hired outside of agencies will be more affordable, but they require much more supervision.

The questions listed below will be the responsibility of the person doing the hiring.

Before hiring any aide from an agency, research your state’s licensing procedures and find out:

What’s the track record of the referring agency?

Is there litigation pending against the agency?

What are the agency’s criteria for hiring?

Does the agency do arrest and/or criminal background checks?

Is drug screening mandatory prior to and after hiring?

Are employees bonded, fingerprinted, etc?

Have you checked with the Better Business Bureau about complaints?

Others with hidden agendas:

This group can include a litany of others, such as neighbors, friends, bank tellers, lawyers, real estate agents, handymen, investment advisors, salespeople, telemarketers, etc., and the motive is the same:

manipulating financial aspects of the elder’s life for the perpetrator’s own benefit.

Unscrupulous telemarketers often canvass during the day seeking those who are at home (ex: retired persons with disposable income) to exploit through various scams.

Bear in mind that in California alone, $20 million a day is pilfered from the elderly.

Please place every one of your elderly relatives and neighbors on the "do not call" list to reduce this possibility as a community service.

Agreements, contracts and legal documents:

Any document, contact or agreement that requires a senior citizen’s signature must be understood by the elder.

He or she must understand the reason for the document, what the resulting consequences of the document will be, and be able to explain it.

In other words, if a senior citizen states "yes," they understand the need for any document, i.e., a Power of Attorney, they must also be able to explain the requirement for it.

"Yes" is not an appropriate reply without the elder being able to give an accurate explanation of "what" or "why" or "who" needs that document.

Red flag tactics utilized by elder exploiters or abusers including some identified personality traits:

Seniors with diminishing functional skills, such as memory, mathematical calculation, and information-processing.

Sufferers of particular illnesses like Alzheimer’s, dementia, etc., i.e., those affecting cognitive capacity.

Nutritional deficiencies and/or malnourishment.

Depression and/or social withdrawal.

Those taking certain types of medications (call the prescribing physician and/or a pharmacist for more information).

Those having sensory infirmities like hearing or vision loss.

Not having access to a healthy nuclear family and/or support group.

Those giving consent while not understanding legal and medical ramifications or consequences.

Those appearing to be susceptible to undue influence by anyone.

Elders who have a lack of spending money.

Seniors who never accept invitations to spend time away from their family or a care-giver.

Elders who put off going to the doctor or those not following doctor’s orders.

Those tending to act impulsively on time deadlines to "act now" for any discounted service or care.

Those who have overly difficult, compliant or gullible personalities.

Those with unresolved behavioral issues.

Isolation by choice and/or imposed by others.

Those especially vulnerable to domination, intimidation and threats.

Those with alcohol or any substance related issues.

Elders forming questionable alliances with outsiders and/or family members.

Seniors who are fearful in making their own decisions or those with no capacity to make decisions.

Those hiding something about a care-giver or keeping secrets in general.

Those with mental health issues.

Seniors with any degree of vulnerability to coercion, trickery or deceit.

Senior citizens who are people pleasers or enablers.

Those having a history of domestic violence or who have been victims of it.

Seniors whose care-givers are stressed or ill.

Those who are dependent on others for care, nourishment, housing, etc.

Elders displaying any physical impairment.

The above is a partial list.

Elder abuse, neglect and exploitation are often lost in inter-personal dynamics and nuances and complicated by failing memories, physical impairments and a multitude of other factors.

When in doubt immediately contact a licensed professional specializing in these issues.

No education, intelligence, sophistication level, social or professional standing in a victim and/or perpetrator are exempt or immune from being a victim or a perpetrator of elder abuse, exploitation or neglect.

Elder abuse, like any other form of violence, is NEVER a satisfactory or appropriate response to any situation no matter how desperate, stressed or frustrated any care-giver feels.

Crisis intervention can prevent or stop elder abuse by offering many types of solutions through the supervision of licensed and trained professionals.

Elder abuse, neglect, and exploitation are crimes.

If you suspect elder abuse, neglect or exploitation, please call your local Adult Protective Services and Police Department immediately and follow up with a complaint in writing via certified mail to agencies, physicians, attorneys, newspapers, etc.

Thank you Irene Masiello for writing this book!

++++++++++++++++++++++++++++++++++++++++++++++++++++++++

END

How to Deal with Elderly Abuse

2008-05-29T01:08:00.000-07:00

How to Deal with Elderly Abuse

May 26, 2008 10:06 AM

_________________________________________________________________

DR THOMAS: This morning the Genius of Aging turns its attention to an important topic that frankly, doesn't get talked about enough, and that's elder abuse. And luckily, we've got Scott Spallina and Lei Shimizu. Thank you for coming in and talking with me about this, and you know, a lot of people don't really understand how big a problem elder abuse is, and I know you guys are hip deep in it every day. What's the story?

SCOTT: Well, you're absolutely right, that this is a grossly under-reported crime.

DR. THOMAS: It's a crime.

SCOTT: It is a crime, definitely. And that's why the Office of the Prosecuting Attorney set up the Elder Abuse Unit to deal specifically with these crimes, focusing on victims over the age of 60 years old.

DR. THOMAS: You know, a lot of times, bad things happen, between even people who love each other. It really is a crime. In a sense, it really is domestic violence, a different kind of domestic violence. Lei, you've worked with this for a long time.

LEI: A lot of times it's intergenerational transmission of family violence. You know like being a victim of child abuse, becoming a parent who's abusive, becoming a parent or a couple who abuses each other, like spousal abuse. And then, as an elder, you are abused and neglected and maltreated because of the generation of abuse.

DR. THOMAS: Right. And we've got to break the cycle.

SCOTT: They say that one fifth of all elder abuse crimes happen in a family. And we're talking about not only spouses but about adult children. In a case I was recently prosecuting in Hawaii, was an elder adult son who beat up his 69-year-old mother, because she did not clean the bathroom to his liking, and be broke her orbital bone. When the police arrived at the scene, she was forced to crawl out the window.

DR. THOMAS: Wow. I'm a geriatrician, I mean I love elders, it's my calling in life. It makes my blood boil. It must be tough, getting through a day at work sometimes, but, even all of the details you're dealing with, there's a whole bunch more that's not being reported.

SCOTT: Exactly. Elder abuse right now is where domestic violence was 30 years ago. And even now we're having trouble convincing the public that there's a problem with domestic violence. So, to even mention elder abuse, we're like 30 years behind the curve. We're trying to model our program after successful programs on the Mainland, but they've been working at it for over a decade.

DR. THOMAS: We will, we will catch up. I mean I am swearing. This is really important, and you know Lei, you said that a lot of times people don't report the crime because they're dependant on the person who's committing the crime.

LEI: They're dependant on their caregiver. It's the cultural nature that we have in Hawaii, and you know that it's shameful to say that you are abused by your son or your daughter. You know it's just incredible…

DR. THOMAS: So neighbors, I mean I think both of you agree. Neighbors, other family members, friends, ministers, anybody should have their eyes pealed, really.

SCOTT: Exactly. And there's that saying that what happens behind closed doors, every man's home is his castle. That doesn't apply to domestic violence. It does not apply to elder abuse. There's no shame when you're the victim of a crime. You need to get help. That's whey the Office of the Prosecuting Attorney is working with the police department, is working with Elder Affairs, is working with Adult Protective Services.

DR. THOMAS: I am so with you on this and I, you know, I'd love to see the day come when this, when the sunlight is out on the topic, people can talk about it, there's no shame, people can report it, because quite frankly, it's one of the great dangers people face in old age is winding up in a situation where you're dependant on somebody who commits acts of violence or neglect against you, so…

SCOTT: Well you remember that the seniors of our community are our greatest resources. And they need the protection, they need every protection we can give them.

DR. THOMAS: I'm like so proud, I mean I want to come to your office, I want to work with you guys, I love you!

SCOTT: We'll give you a badge.

DR. THOMAS: I'm on it.

Elder Abuse (Care) Part 1

2008-05-29T00:57:00.000-07:00

Elder Abuse (Care) Part 1

Every year, tens of thousands of elderly Americans are abused in their own homes, in relatives’ homes, and even in facilities responsible for their care. You may suspect that an elderly person you know is being harmed physically or emotionally by a neglectful or overwhelmed caregiver or being preyed upon financially.

By learning the signs and symptoms of elder abuse and how to act on behalf of an elderly person who is being abused, you’ll not only be helping someone else but strengthening your own defenses against elder abuse in the future. As elders become more physically frail, they’re less able to stand up to bullying and or fight back if attacked. They may not see or hear as well or think as clearly as they used to, leaving openings for unscrupulous people to take advantage of them. Mental or physical ailments may make them more trying companions for the people who live with them.. Tens of thousands of seniors across the United States are being abused: harmed in some substantial way often people who are directly responsible for their care More than half a million reports of abuse against elderly Americans reach authorities every year, and millions more cases go unreported.

Where does elder abuse take place?

Elder abuse tends to take place where the senior lives: most often in the home where abusers are apt to be adult children; other family members such as grandchildren; or spouses/partners of elders. Institutional settings especially long-term care facilities can also be sources of elder abuse. The different types of elder abuseAbuse of elders takes many different forms, some involving intimidation or threats against the elderly, some involving neglect, and others involving financial chicanery.

The most common are defined below.

Physical abusePhysical elder abuse is non-accidental use of force against an elderly person that results in physical pain, injury, or impairment. Such abuse includes not only physical assaults such as hitting or shoving but the inappropriate use of drugs, restraints, or confinement.

Emotional abuseIn emotional or psychological senior abuse, people speak to or treat elderly persons in ways that cause emotional pain or distress.

Verbal forms of emotional elder abuse include intimidation through yelling or threats humiliation and ridicule habitual blaming or scapegoating

Nonverbal psychological elder abuse can take the form of ignoring the elderly person isolating an elder from friends or activities terrorizing or menacing the elderly person

Sexual abuseSexual elder abuse is contact with an elderly person without the elder’s consent. Such contact can involve physical sex acts, but activities such as showing an elderly person pornographic material, forcing the person to watch sex acts, or forcing the elder to undress are also considered sexual elder abuse.

Neglect or abandonment by caregiversElder neglect, failure to fulfill a caretaking obligation, constitutes more than half of all reported cases of elder abuse. It can be active (intentional) or passive (unintentional, based on factors such as ignorance or denial that an elderly charge needs as much care as he or she does).

Financial exploitationThis involves unauthorized use of an elderly person’s funds or property, either by a caregiver or an outside scam artist. An unscrupulous caregiver might misuse an elder’s personal checks, credit cards, or accounts steal cash, income checks, or household goods forge the elder’s signature engage in identity theft

Typical rackets that target elders include Announcements of a “prize” that the elderly person has won but must pay money to claim Phony charities Investment fraud Healthcare fraud and abuseCarried out by unethical doctors, nurses, hospital personnel, and other professional care providers, examples of healthcare fraud and abuse regarding elders include Not providing healthcare, but charging for it Overcharging or double-billing for medical care or services Getting kickbacks for referrals to other providers or for prescribing certain drugs Overmedicating or undermedicating Recommending fraudulent remedies for illnesses or other medical conditions Medicaid fraud Signs and symptoms of elder abuse

At first, you might not recognize or take seriously signs of elder abuse. They may appear to be symptoms of dementia or signs of the elderly person’s frailty — or caregivers may explain them to you that way. In fact, many of the signs and symptoms of elder abuse do overlap with symptoms of mental deterioration, but that doesn’t mean you should dismiss them on the caregiver’s say-so. General signs of abuse The following are warning signs of some kind of elder abuse: Frequent arguments or tension between the caregiver and the elderly person Changes in personality or behavior in the elder Risk factors for elder abuseIt’s difficult to take care of a senior when he or she has many different needs, and it’s difficult to be elderly when age brings with it infirmities and dependence. Both the demands of caregiving and the needs of the elder can create situations in which abuse is more likely to occur.Risk factors among caregivers

Many nonprofessional caregivers — spouses, adult children, other relatives and friends — find taking care of an elder to be satisfying and enriching. But the responsibilities and demands of elder caregiving, which escalate as the elder’s condition deteriorates, can also be extremely stressful. The stress of elder care can lead to mental and physical health problems that make caregivers burned out, impatient, and unable to keep from lashing out against elders in their care.

Among caregivers, significant risk factors for elder abuse are:inability to cope with stress (lack of resilience) depression, which is common among caregivers lack of support from other potential caregivers the caregiver’s perception that taking care of the elder is burdensome and without psychological reward substance abuse

Even caregivers in institutional settings can experience stress at levels that lead to elder abuse. Nursing home staff may be prone to elder abuse if they lack training, have too many responsibilities, are unsuited to caregiving, or work under poor conditions. The elder’s condition and history

Several factors concerning elders themselves, while they don’t excuse abuse, influence whether they are at greater risk for abuse: The intensity of an elderly person’s illness or dementia Social isolation; i.e., the elder and caregiver are alone together almost all the time The elder’s role, at an earlier time, as an abusive parent or spouse A history of domestic violence in the home The elder’s own tendency toward verbal or physical aggression In many cases, elder abuse, though real, is unintentional. Caregivers pushed beyond their capabilities or psychological resources may not mean to yell at, strike, or ignore the needs of the elders in their care.

Reporting elder abuse

If you are an elder who is being abused, neglected, or exploited, tell at least one person. Tell your doctor, a friend, or a family member whom you trust. Other people care and can help you. You can also call Eldercare Locator at 1-800-677-1116. The person who answers the phone will refer you to a local agency that can help. The Eldercare Locator answers the phone Monday through Friday, 9 am to 8 pm, Eastern Time.

How do I report suspected elder abuse?

The 500,000 to 1,000,000 reports of elder abuse recorded by authorities every year (the vast majority of which are proven to be true) are only the tip of the iceberg; according to data from different states, for every case of elder abuse reported, another 12 or 13 are not. Accordingly there’s a great need for people to report suspected abuse. In every state, physical, sexual, and financial abuses targeting elders that violate laws against assault, rape, theft, and other offenses are punishable as crimes. With some variation among states, certain types of emotional elder abuse and elder neglect are subject to criminal prosecution, depending on the perpetrators' conduct and intent and the consequences for the victim. States differ on who is required to report suspected elder abuse (there’s no federal standard), though the categories of mandatory reporters are expanding. Typically, medical personnel, nursing home workers, peace officers, emergency personnel, public officials, social workers, counselors, and clergy are listed as mandatory reporters, and that responsibility is spreading to financial institutions and other entities that work with seniors. While it’s important for elders to seek refuge from abuse, either by calling a local agency or telling a doctor or trusted friend, many seniors don't report the abuse they face even if they’re able. Many fear retaliation from the abuser, while others believe that if they turn in their abusers, no one else will take care of them. When the caregivers are their children, they may be ashamed that their children are behaving abusively or blame themselves: “If I’d been a better parent when they were younger, this wouldn’t be happening.” Or they just may not want children they love to get into trouble with the law.

The first agency to respond to a report of elderly abuse, in most states, is Adult Protective Services (APS). Its role is to investigate abuse cases, intervene, and offer services and advice. Again, the power and scope of APS varies from state to state.

However, every state has at least one toll-free elder abuse hotline or helpline for reporting elder abuse in the home, in the community, or in nursing homes and other longterm care facilities. In addition, information and referral are also available from the national Eldercare Locator: 1-800-677-1116

Elder (Care) Abuse part 2

2008-05-29T00:39:00.000-07:00

Elder (Care) Abuse part 2

Preventing elder abuse and neglect

We can help reduce the incidence of elder abuse, but it’ll take more effort than we’re making now. Preventing elder abuse means doing three things:

Listening to seniors and their caregivers
Intervening when you suspect elder abuse
Educating others about how to recognize and report elder abuse

What you can do as a caregiver to prevent elder abuse

If you’re overwhelmed by the demands of caring for an elder, do the following:

Request help, from friends, relatives, or local respite care agencies, so you can take a break, if only for a couple of hours.
Find an adult day care program.

Stay healthy and get medical care for yourself when necessary.

Adopt stress reduction practices.
Seek counseling for depression, which can lead to elder abuse.
Find a support group for caregivers of the elderly.

If you’re having problems with drug or alcohol abuse, get help.

And remember, elder abuse helplines offer help for caregivers as well. Call a helpline if you think there’s a possibility you might cross the line into elder abuse.

What you can do as a concerned friend or family member

Watch for warning signs that might indicate elder abuse. If you suspect abuse, report it.
Take a look at the elder’s medications. Does the amount in the vial jive with the date of the prescription?
Watch for possible financial abuse. Ask the elder if you may scan bank accounts and credit card statements for unauthorized transactions.
Call and visit as often as you can. Help the elder consider you a trusted confidante.
Offer to stay with the elder so the caregiver can have a break — on a regular basis, if you can.

How you can protect yourself, as an elder, against elder abuse

Make sure your financial and legal affairs are in order. If they aren’t, enlist professional help to get them in order, with the assistance of a trusted friend or relative if necessary.
Keep in touch with family and friends and avoid becoming isolated, which increases your vulnerability to elder abuse.
If you are unhappy with the care you’re receiving, whether it’s in your own home or in a care facility, speak up. Tell someone you trust and ask that person to report the abuse, neglect, or substandard care to your state’s elder abuse helpline or long term care ombudsman, or make the call yourself.

Finally, if you aren’t in a position to help an elder personally, you can volunteer or donate money to the cause of educating people about elder abuse, and you can lobby to strengthen state laws and policing so that elder abuse can be investigated and prosecuted more readily. The life you save down the line may be your own.

References and resources about elder abuseGeneral Information on Elder Abuse

Preventing & Reporting Elder Abuse – 39-page PDF booklet covering many aspects of elder abuse. (California Department of Justice)

Elder Abuse and Neglect: In Search of Solutions – Covers the facts about elder abuse, as well as signs of abuse and steps to take if abuse occurs. (American Psychological Association)

What is Elder Abuse? – Site provides definitions of different types of elder abuse, along with signs and risk factors. (National Committee for the Prevention of Elder Abuse)

Elder abuse: Signs to look for, action to take – Overview of elder abuse: types, signs, and interventions. (Mayo Clinic)

Nursing Home Abuse

www.ltcombudsman.org An Ombudsman is an advocate for residents of nursing homes, board and care homes, and assisted living. Ombudsmen provide information about how to find a facility and what to do to get quality care. They are trained to resolve problems. If you want, the ombudsman can assist you with complaints. However, unless you give the ombudsman permission to share your concerns, these matters are kept confidential.

Under the federal Older Americans Act, every state is required to have an Ombudsman Program that addresses complaints and advocates for improvements in the long term care system. To find the ombudsman nearest you, contact your State Ombudsman office.

Nursing Home Abuse News – Provides information about elder abuse in nursing homes and steps you can take to protect a loved one from neglect or abuse. (Nursing Home Abuse News)

Resources used in researching this article

Distinguishing Between Abuse, Neglect, And Self-Neglect – Defines the different categories of elder mistreatment and resulting psychological symptoms. (University of Missouri at Kansas City)

Elder Financial Abuse – PDF brochure summarizes financial abuse, warning signs, who might exploit an elder, and what to do to prevent elder financial abuse. (San Bernardino County Department of Aging and Adult Services)

Ellen Jaffe-Gill, M.A., Tina de Benedictis, Ph.D., and Jeanne Segal, Ph.D., contributed to this article. Last modified on: 2/13/08.

California Law Provides New Rights for Victims of Financial Elder Abuse

2008-05-28T11:47:00.000-07:00

California Law Provides New Rights for Victims of Financial Elder Abuse

May 06, 2008 - 11:02 PM
Category: Nursing Home & Elder Abuse
Tags: elder abuse, financial elder abuse, san luis obispo, banks, annuity sales, trust mills
Posted by: Ray Mattison

With an aging and affluent population of elders, California is a fertile ground for those committing financial elder abuse. The California Advocates for Nursing Home Reform have an excellent summary of the various forms of elder abuse and what to watch out for.

A New Bill authored by Senator Steinberg allows victims to freeze the assets of the wrongdoers before trial, an unusual remedy in personal injury and other civil cases. This is a constant problem we face when the abuse is by a family member or individual rather than an institution such as an insurance company: By the time we can obtain a judgment the money is long gone.
On the reporting side, a recent law requires banks and credit unions to report suspected elder financial abuse to the authorities. In one case we handled the abusive relative was holding her senile mother's hand as she signed the loan papers at the finance company. Yet, at that time the company had no responsibility to report the conduct.

We were able to establish the liability of the finance company in this case of elder abuse in San Luis Obispo County; but, this was made difficult as the law imposed no specific duty on the company to prevent or report such activity.

We have represented thousands of seniors in class actions against annuity insurers, such as Allianz and National Western, and have yet to find a case where an annuity was a suitable investment for a senior. They have hidden charges and are never understood by the buyer. Often these policies are sold by people posing as "financial advisers" at free-lunch seminars.

Another common scam is the "trust mill" where seniors are enticed to attend seminars and to buy inexpensive "living trusts" - when the real goal is to sell them an expensive annuity with huge commissions and even bigger early surrender charges and other penalties.

Victim Resources by State

2008-04-16T03:52:00.000-07:00

California

California Attorney General, Office of Victim Services

Overview of California's Office of Victim Services. Information on victims' rights. Downloadable form to request notification of criminal appeals. Frequently Asked Questions and informational brochures. Information about California and national victim resources.

California Crime Victim Compensation Program

Victim compensation information. Downloadable victim compensation form. Spanish forms. Brochure on victim restitution. Directory of victim witness assistance programs across the state.

California Department of Corrections, Office of Victim and Survivor Services

Information about victims' rights and the correctional system, parole board hearings, and cases in which the offender is a juvenile. Downloadable victim notification form. Restitution information. Links to additional resources.

California Victims of Crime Resource Center

Overview of the Center and toll-free line for resources and referrals for victims. Links to California and national victim resources.

Mandatory Reporters of Elder Abuse

2008-03-04T12:28:00.000-08:00

February 11, 2008

Proposed MI bill makes financial institutions mandatory reporters

Aimed at stopping elder abuse, the Elder Financial Protection Act was unveiled by House Speaker Michael Sak and State Representative Robert Dean today. They said elder abuse can mean anything from physical and emotional abuse as well as financial exploitation.

The Elder Financial Protection Act would:

* Make it mandatory for employees of financial institutions to report suspected elder abuse.
* Require financial insitutions to provide joint accountholders with a written summary of their rights.
* Prohibit those convicted of elder abuse from inheriting from a victim's estate, and create an Elder Death Review Team to investigate suspicious deaths.
* Allow a third party to file a criminal complaint on behalf of a victim of elder abuse.
* Define financial exploitation as it relates to the Michigan Social Welface Act.
* Define the right of those who are incapacitated.
* Require a person who is granted power of attorney on behalf of a senior to sign a contract that details that person's obligations and fiduciary duty to act in the senior's best interest.

Of the elder abuse cases, 15 percent are from financial exploitation and 20 percent involve caregiver neglect.

Source/more: http://www.woodtv.com/Global/story.asp?S=7853359&nav=0RceX5j4

February 11, 2008 in Elder Abuse/Guardianship/Conservatorship Permalink TrackBack

February 09, 2008

Advocacy group says elder abuse in Ireland is widespread

Recent figures on elder abuse in Ireland released by the HSE represent only a fraction of the cases in Ireland, according to a spokesperson for Age Action. According to the figures, the HSE's elder abuse officers dealt with 927 cases last year. As the majority of the 26 elder abuse officers have been in their posts for less than 12 months, Mr Eamon Timmins, Age Action's Head of Advocacy and Communications said the scale of the problem is likely to be much greater. Age Action had previously used the results of international studies, which showed that between three per cent and five per cent of the older population have been victims of elder abuse," Mr Timmins told IMN. Applying this to Ireland, would mean that between 14,000 and 23,000 older people would have experienced elder abuse. The figures released show only a fraction of the problem. Because of the nature of the abuse, much of it goes unreported. Many people who are abused are afraid to speak out."

Source: Irish Medical News, http://www.irishmedicalnews.ie/articles.asp?Category=news&ArticleID=20324

February 9, 2008 in Elder Abuse/Guardianship/Conservatorship Permalink TrackBack

February 04, 2008

CA physician pleads guilty to elder abuse

A urologist who performed a painful cancer treatment on a patient who didn't have the disease has pleaded guilty to felony charges of elder abuse and insurance fraud. Ali Moayed, 41, of Monte Sereno is facing up to one year in jail under a plea agreement with Santa Clara County prosecutors. Moayed - who entered the guilty plea Friday - will be formally sentenced March 7. He has already surrendered his medical license. Moayed created fake lab reports indicating that three of his patients suffered from prostate cancer, which they didn't have, according to court documents. Another doctor reviewing Moayed's files in 2005 noticed that a pathology report - the document that would contain the cancer diagnosis - was missing from the file for a patient about to undergo treatment. When radiation oncologist Abhinand Peddada finally got the report, he saw that the report from the lab said something different than the document from Moayed's Los Gatos office. The lab said the patient never had prostate cancer. Peddada canceled a painful procedure, called brachytherapy, for the patient and a second man. But the conflicting reports weren't discovered until 87-year-old Dung Le had already undergone the procedure, which involves sedating the patient and inserting radioactive seeds the size of a rice grains into the prostate gland.

Source: San Jose Mercury-News, http://www.mercurynews.com/news/ci_8126625?nclick_check=1

February 4, 2008 in Elder Abuse/Guardianship/Conservatorship Permalink TrackBack

January 30, 2008

Upcoming Conference: 2nd International Conference on Elder Abuse

Reminder:

2nd International Conference on Elder Abuse: Medical Aspects & Multidisciplinary Responses
February 11 & 12, 2008 in Newport Beach, California

More info: http://www.elderabuseconference.org/

January 30, 2008 in Elder Abuse/Guardianship/Conservatorship Permalink TrackBack

January 24, 2008

Sexual abuse of nursing home residents a growing problem

The details about John R. Riems' alleged assaults against nursing home residents seem grimly familiar to social workers. They say assaults against mute and helpless victims fit a pattern. The victims of sexual abuse in nursing homes tend to be people who "are just not able to defend themselves because of physical disabilities or cognitive impairments or just general frailty," said Sharon Merriman-Nai, co-manager of the National Center on Elder Abuse. "We do typically see if we have those kinds of complaints, the victim is someone who is not generally a good reporter," echoed Beverley Laubert, Ohio's Long-Term Care Ombudsman. Laubert's office investigates complaints about nursing home care in Ohio. Riems, recently fired from his position as a nurse at Concord Care and Rehabilitation Center, is accused of raping a 55-year-old man unable to talk or see because of a stroke.

Source: http://www.sanduskyregister.com/articles/2008/01/24/front/577647.txt

January 24, 2008 in Elder Abuse/Guardianship/Conservatorship Permalink TrackBack

December 18, 2007

ABA Comm'n on Law and Aging publishes Volunteer Guardianship Monitoring report

Volunteer Guardianship Monitoring Programs: A Win-Win Solution, published this month by the ABA Commission on Law and Aging with a grant from the AARP Foundation, is a study of volunteer guardianship monitoring projects initiated by AARP in 1990. The study aimed to determine the extent to which the AARP volunteer guardianship monitoring projects are still functioning, and to examine their experiences and effectiveness in the 10 years since AARP discontinued support.

Volunteer Guardianship Monitoring Programs: A Win-Win Solution is an important resource for courts and persons interested in guardianship monitoring.

The study found:

· More than half of the programs are still active and their volunteers are satisfied.

· Volunteers are critical to a program's success and failure.

· Programs maximized scarce resources to successfully intervene and provide remediations for incapacitated adults at risk of abuse, neglect, or exploitation, and assisted guardians.

· Volunteers-while not free-provide an enormous value, bring a new perspective and energy to the work the court does, and often have skills and experience that paid staff does not have.

· Programs enhance the court's capacity to monitor cases and to assist guardians without substantially increasing staff and budgets, and help the volunteers make important contributions to their own well-being.

The study urges courts interested in ensuring a program's success do the following:

Make room for the program.
Have a paid program coordinator.
Recruit volunteers.
Form partnerships with the state and local AARP offices.
Recognize volunteers.
Adequately supervise volunteers.
Conduct comprehensive training for volunteers on a regular basis.
Track results of the program and use this information to regularly inform the court of the program's importance.
Integrate the volunteer program into the larger monitoring program at the court.

Volunteer Guardianship Monitoring Programs: A Win-Win Solution is available by calling (202) 662-8690. (For a more comprehensive report on a range of guardianship monitoring practices, see Guarding the Guardians: Promising Practices for Court Monitoring, by the AARP Public Policy Institute with the collaboration of the ABA Commission on Law and Aging, available on the AARP Public Policy Institute website http://www.aarp.org/research/legal/guardianships/2007_21_guardians.html.)

Via the Elderbar listserv....

December 18, 2007 in Elder Abuse/Guardianship/Conservatorship Permalink TrackBack

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