New Bill Aims to Protect Vulnerable Adults from Isolation & Financial Elder Abuse
Dec. 30, 2022
Since its adoption in 1982, the Elder Abuse and Dependent Adult Civil Protection Act (hereinafter referred to as the “Elder Abuse Act”), has been continually expanded by the Legislature. Effective January 1, 2023, the Elder Abuse Act will include California Assembly Bill 1243 (AB 1243). Under AB 1243, two expansions will be made to protect elders and dependent adults: (1) interested parties may seek anti-isolation restraining orders and, (2) courts may review the propriety of “specific debts” to determine whether they are the product of elder abuse.
Anti-Isolation Restraining Orders to Protect Vulnerable Adults
The COVID-19 pandemic was the catalyst for AB 1243’s expansion of the Elder Abuse Act. During the COVID-19 pandemic, isolation became one of the biggest threats to vulnerable adults. Perpetrators of elder and dependent adult abuse, including isolation, prevented trusted family and friends from interacting with the vulnerable adult.
“As the vulnerable adult is isolated, it becomes more and more difficult for others to identify signs of abuse. The isolation also allows the perpetrator to potentially take over finances and hide any indications that they are doing so.” (Welf. & Inst. Code § 15657.03 1(b)).
Through AB 1243, the Legislature seeks to “ensure that vulnerable adults are able to protect and preserve their physical and mental health, by making certain that these vulnerable adults are able to maintain important familial and social connections that they desire, and that a perpetrator does not cut off those relationships in an attempt to take advantage of the vulnerable adult.” (Section 1(d)).
As stated above, two key changes are made to the Welfare and Institutions Code section 15657.03 with the implementation of AB 1243. This article will address the first section of AB 1243, which expands upon the existing ability of California courts to issue restraining orders to protect “elder” and “dependent adults” from abuse, both defined terms under the Welfare and Institutions Code. Under AB 1243, California courts may issue a restraining order specific to anti-isolation.
To seek an order, an individual must be an “interested party.” AB 1243 expands existing law on who an interested party may be and who carries standing to bring an action. An “interested party” means an individual with a “personal, preexisting relationship with the elder or dependent adult.” (Welf. & Inst. Code § 15657.09(b)(3)). This “personal, preexisting relationship” may be shown in several ways, including through a description of past involvement with the elder, time spent together, and any other evidence that the individual spent time with the elder. (Id.) Therefore, more people now have standing to seek an anti-isolation order.
AB 1243 requires that the interested party file a petition using California Judicial Council Form EA-100. The bill requires that the form be updated to correspond to AB 1243. An update is expected on or before February 1, 2023. Generally, a petition is heard within twenty-five (25) days of when it is filed. (See Welf. & Inst. Code § 15657.03(f)). Unlike other elder abuse temporary restraining orders, the anti-isolation order may only be issued after notice to the respondent and an opportunity for the respondent to be heard.
To issue the anti-isolation restraining order, the Court must find the following:
(1) The respondent’s past act or acts of isolation of the elder repeatedly prevents contact with the interested party;
(2) The elder expressly desires contact with the interested party; and
(3) The respondent’s isolation of the elder from the interested party was not in response to an actual or threatened abuse of the elder by the interested part or the elder’s desire not to have contact with the interested party.
(Welf. & Inst. Code § 15657.03 (b)(5)(E)(i)(I-III)).
Once issued, the anti-isolation restraining order may last up to five years with the option to renew. (Id. at subd.(i)(1)). Additionally, the prevailing party, whether the petitioner or the respondent, may be awarded legal fees subject to the Court’s discretion. (Id. at subd. (t)).
The expansion of law is designed to address elder abuse and prevent elders or dependent adults from being cut off from their community. However, this expansion will force California courts to delve into complicated family dynamics and situations to determine whether, and how, to intervene.
Determining Whether “Specific Debts” Were the Result of Financial Elder Abuse
The language used in the second component of AB 1243 was modeled after Assembly Bill 2517, which was passed in 2020. Under AB 2517, courts were permitted to review whether “specific debts” were incurred as a result of domestic violence and without the consent of a party under Family Code section 6342.5. Similarly, the second component of AB 1243 allows the court to review “specific debts” incurred as a result of financial abuse of the elder or dependent adult by the perpetrator. For example, if a child uses their parent’s credit card to make purchases for child’s personal use and does so without the parent’s authorization.
Similar to the first component, the court may only review the propriety of the debts incurred in the elder or dependent adult’s name after notice and hearing. (Welf. & Inst. Code § 15657.03 (b)(5)(D)(i)).
If the court determines that a “specific debt” was the result of financial elder abuse, the vulnerable adult is entitled to remedies included in section 15657.03. Should the vulnerable adult seek damages from the perpetrator that are not expressly included in section 15657.03, the vulnerable adult must bring a financial elder abuse claim under another provision of the Elder Abuse Act. Those claims will proceed to hearing, including a possible trial. Resolution will be much slower.
While included in the expansion, it is unclear the extent to which AB 1243 will protect elders from “specific debts” claims. This may provide elders and dependent adults with an additional tool to dispute debts with third parties, such as creditors, collectors, or credit reporting agencies. Overall, AB 1243 demonstrates the Legislature’s continued commitment to expansion of the Elder Abuse Act.