In addition to the criminal sanctions that flow from a case of elder abuse, there are a litany of civil actions that can be brought. If an elderly person in California has been subject to abuse, either physical or financial, the conservator may bring an action under the Elder Abuse and Dependent Adult Civil Protection Act. The action can be brought in the probate court or the civil court in the jurisdiction of the abused person. The applicable law provides remedies for abuse to elders and dependent adults. Elder Abuse is defined in the following ways:
• Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
• The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. “Elder” means any person residing in this state, 65 years of age or older. “Dependent adult” means any person between the ages of 18 and 64 years who resides in this state and who has hysical 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 When it is proven by clear and convincing evidence that a defendant is liable for physical abuse, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law, the defendants may be liable The department of the Superior Court having jurisdiction over probate conservatorships has concurrent jurisdiction over civil actions and proceedings involving a claim for relief arising out of the abuse of an elderly or dependent adult, if a conservator has been appointed for plaintiff before the initiation of the action for abuse.
The Superior Court having jurisdiction over probate conservatorships must not grant relief if the court determines that the matter should be determined in a civil action, but must instead transfer the matter to the general civil calendar of the superior court. The judge hearing the matter should not dismiss any proceeding for relief if the court determines that the civil action was filed for the purpose of delay. According to one Torrance Elder Abuse Defense Attorney, it is reversible error for any judge to dismiss, rather than transfer, an elder abuse action brought in the probate court.
The death of the elder or dependent adult does not cause the court to lose jurisdiction of any claim for relief for abuse of an elder or dependent adult. Upon petition, after the death of the elder or dependent adult, the right to maintain an action must be transferred to the personal representative of the decedent, or if none, to the person or persons entitled to succeed to the decedent’s estate. What is most important to understand is that elder abuse has special rules and a lawyer should be consulted to render proper advice.