I’m a law clerk, and I spend 80% of my day working on Probate and Estate Planning matters. (Estate Planning is the way people avoid probate.) Most of the work is transactional and straightforward, but occasionally, we face more complex matters.
Today, I’m focused on this definition: “Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code, § 15610.07, subd. (a)(1).) This is the first of three definitions that constitute the “abuse of an elder or dependent adult.” (Often referred to simply as “elder abuse.”)
The third definition of elder abuse under the same section of the code is: “Financial abuse, as defined in Section 15610.30.” (Welf. & Inst. Code, § 15610.07, subd. (a)(3).) This includes the taking of personal property or realty “for a wrongful use.” (Welf. & Inst. Code, § 15610.30, subd. (a)(1) & (a)(3).)
The reason these sections of code are catching my attention is upcoming litigation on a probate matter.
Elder abuse can be unintentional
Well intentioned people can cross unfortunate lines. Take, for example, a wife, who wished that her husband would do something for his own health and welfare. In order to encourage him, and knowing that he was very concerned about money, she withdrew a large sum of money from his bank accounts and hid it. She promised that she would return it, but only after he agreed to (1) lose weight, (2) see a counselor, (3) attend church, or (4) perform some other act “for his own good.”
Although it is true that the wife had good intentions, and even if we pretended that the ends truly justify the means, we still have a taking of personal property (money) for the purpose of causing duress, also known as financial abuse. No matter the ends, the means were not justified, and if the husband was over 65 at the time of the theft, the act might have constituted elder abuse.
Elder Abuse can escalate
If the story ended there, and the wife returned the money, the story might have been over, but snowballs roll down hill. When they roll, they accumulate size and speed, and this law of momentum generally applies also to human behavior.
When taking money does not convince a man to act, the wife might decide to take away the one thing the man loves more than money: herself.
So, after taking the money and hiding it away, after the husband made it clear that he had no intention of following the wife’s demands, she next threatened to abandon him. If he did not act as she says he should have, then she would leave him alone to wallow in squalor without her.
At the time she made the threat, she knew the husband is in poor health. She was aware that he would have difficulty caring for himself. She believed that these facts would just make it more likely that the husband’s will to ignore her demands would bend more easily.
Still, the husband did nothing, and to give effect to her threat so that future threats would be taken more seriously, she moved out of his home. She left him all alone. After she left, he fell frequently, and friends called her back to tend to injuries. She visited, but then she departed again. No matter how many times the husband traveled to the emergency room, the wife continued to deny him the love and support that was her duty to provide, and instead continued to abandon him, repeatedly.
She abandoned and neglected the man, and it continued for years. All in the hopes that he would make better decisions. But he never did. Now that he is deceased, her game of cat-and-mouse is at an end.
What the future holds
I cannot know whether the woman feels bad for the neglect and abandonment. All I know is that it’s my job to build a case, to read the codes, and to put the facts before the court. Ultimately, the court will decide whether the widow of a deceased man should face penalties for abandoning him in his hour of need.
She buried her husband, and within one year, she now needs to bear the burden of knowing that a team of lawyers is building a case against her. All because, as she puts it, she wanted the best for her husband and thought that she could make him change.
As we get older, it becomes harder and harder to face the fact that bad life choices may lead to our own demise. With the state of elder abuse law, it would appear that the best thing that we can do for our elderly is to give them the dignity of being able to make bad decisions. We can reason with them and hope that they make better choices, but no person has the right to use threats of abandonment, to steal money, or to neglect an elder in order to force them to make better choices. That’s not okay.
Tonight, I read the codes of California seeking justice for a man who cannot defend himself against a woman who lovingly sent him to his grave so that others might know that elder abuse is serious and is not taken lightly.
If you have a complex probate that has been impacted by issues like elder abuse, contact Coleman & Horowitt, LLP. We have offices in Bakersfield and lawyers who can handle the more complex issues. That’s the advantage that decades of in-house experience brings. Discover more at Coleman & Horowitt’s website.