THE PROBLEM OF “STANDING” IN FINANCIAL ELDER ABUSE
LITIGATION
WHEN THE VICTIM DOESN’T WANT TO SUE
By Phil Brown
Finding a
person with standing to bring a financial elder abuse action can be a real
problem. EADACPA (Elder Abuse Disabled
Adult Civil Protection Act, Welfare & Institutions Code, §§ 15600 et seq.),
also called the Elder Abuse Act, is a remedial statute first enacted by the
Legislature in 1982, in part “. . . to enable interested persons to engage
attorneys to take up the cause of abused elderly persons. . .” EADACPA
does not contain any special softening of the general California rule
requiring standing: “Every action must be prosecuted in the name of the real
party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.)
Even though
there is a reference to “interested persons” in the stated legislative purpose
of EADACPA, there is no definition of “interested persons” in the statute, nor
is there a provision extending standing to the undefined “interested persons.” Dicta in Estate of Lowrie (2004) 118
Cal.App.4th 220, 227, says that the legislative intent for EADACPA suggests
that the Legislature intended a broad definition of standing in the context of
elder abuse cases. While a broad
definition of standing may have been in the Legislature’s mind when drafting
the statute, even a broad definition does not address the problem which
occurs when an elderly person is unwilling to initiate an action because he or
she is dependant on the perpetrator of the elder abuse.
As in every
other kind of litigation, a financial elder abuse lawsuit filed by a person
without standing is subject to dismissal.
Even though the public policy of the State, as announced by the
Legislature, suggests that the legislation was intended to make it easier for “interested
persons” to bring an EADACPA action, many actions are still stymied by the
problem of standing. Probate Code, § 48
defines an “interested person” as a person related to a decedent as an heir,
devisee, child, spouse, creditor, beneficiary, or having a property right or
claim against a trust estate or the estate of a decedent, a person having
priority for appointment as a personal representative, and a fiduciary
representing an interested person, and such an interested person does have
standing for certain kinds of probate issues.
For comparison, EADACPA does not give standing to the broad range of “interested
persons” defined in Probate Code, § 48 so that they might independently be able
to bring an action for elder abuse.
There may be wisdom in not granting standing to intermeddlers, but the
problem of unaddressed elder abuse appears to be a growing phenomenon.
There are a
number of instances in which standing is not a hurdle for a financial elder
abuse action, such as when the elder dies or the elder’s property is subject to
a trust or conservatorship, in which case the person who has charge of the
elder’s property may maintain an action to recover property wrongfully obtained
by a third person, and EADACPA allows an action for physical injuries to an
elder as the result of abuse to be maintained, or even initiated, after the
elder dies.
Standing
becomes a problem when the elder is duped out of his or her property, but for a
variety of reasons does not want to initiate an action to get it back. It is a well-reported pattern that elderly
people become more dependant as they age and are often willing to endure some
level of abuse in order to maintain some level of stability in their
lives. A common example occurs when a
caregiver, on whom the elder relies, improperly obtains property of the elder,
but the elder is afraid to raise a cry because of the elder’s dependence upon
the caregiver. In this situation, the
elder may be the only person with standing, but may refuse to initiate an
action to recover the improperly taken property.
For example,
your elderly neighbor of twenty years, lost her husband five years ago. Her children do not live nearby, but she has
had the same live-in housekeeper for ten years.
This elderly neighbor relies on the housekeeper for grocery shopping,
going to the bank for cash, preparing meals, transportation to doctors and the
dentist, transportation to friends’ homes, and for social contact around the
house. Thus, in the last ten years this neighbor’s
world is getting smaller and smaller and she needs the housekeeper in a way
that is becoming almost desperate. The
housekeeper, who is quite competent, senses the extent of your neighbor’s need,
and maneuvers the neighbor into giving her $500,000 in cash for a promise to
stay on and provide care and companionship for your neighbor. When you learn of this - aside from the
social aspects of getting involved in your neighbor’s decisions, do you have
standing to do anything?
You visit
your neighbor and raise the issue, but she says that she doesn’t want to do
anything about it - she is happy the way things are and does not want any
confrontation that might cause her housekeeper to leave. You contact your neighbor’s children and her
son comes to talk with his mom, but she is adamant that she does not want to do
anything that will upset the arrangement she has with the housekeeper. The son is unable to persuade his mother to
take any action to recover the $500,000.
Who has
standing to undo the abuse? The answer
is that your neighbor is the only person with standing in this situation, and
unless a conservatorship is established or a guardian ad litem is appointed, no
one can take action until your neighbor dies.
It is possible that someone might step forward and ask to be appointed
as a guardian ad litem, but that would require a noticed hearing and a
determination that the elder is incompetent and needs a guardian ad litem to
bring such a suit. It is unlikely that a
stranger would be appointed in the absence of evidence of dementia or other
psychological incapacity, conditions that make it unlikely for a stranger to be
in command of such evidence.
EADACPA does
have an interesting provision for bringing or maintaining an action for elder
abuse after the elder dies. Welf.
& Inst. Code, § 15657.3 provides that after the death of the elder, the
right to bring or maintain an action for abuse shall pass to the personal
representative of the decedent or, if there is no personal representative, to
(a) an intestate heir whose interest is affected, (b) the decedent’s successor
in interest, or (c) a person identified as an “interested person” in Probate
Code, § 48. The Legislature then did
something very interesting: if the personal representative refuses to bring an
action, the Legislature conferred standing upon the people identified in
subsections a - c above to bring such an action. In Estate of Lowrie (2004) 118
Cal.App.4th 220, a granddaughter of the decedent was held to have standing when
her uncle, trustee of his mother’s trust, was found to have committed elder
abuse and transferred all of his mother’s property to himself, effectively
disinheriting his siblings and their children.
The granddaughter’s standing derives in two ways: first, she was the successor
trustee of the trust, and Probate Code, § 259 provides for disinheritance of a
person who commits elder abuse as if the person had predeceased the decedent,
which, in Lowrie, left the granddaughter as the successor trustee and,
therefore, an interested person with standing; and, second, as a matter of
public policy to effectuate the purpose of EADACPA.
Standing can
be tricky in some fairly uncommon situations, but it is a serious problem for
beneficiaries of a desperately dependant elderly person who is afraid to take
action against the abuser, assuming that the elderly person even knows what is
going on. EADACPA does not address or
provide a remedy for this issue until after the elderly person dies. The other side of the coin, of course, is that
it would be problematic to give standing to someone to do something that the
supposedly competent elder does not want to do.
Contact Phil Brown
