ENHANCED REMEDIES FOR ABUSE OF AN ELDER
As Filipinos, we are all aware of the importance placed in our culture on taking care of our elders. Although not exclusive to our culture, taking care of our elders is especially emphasized in Filipino culture. Due to time limitations imposed by the world we live in, we often cannot personally care for our elders, and place the caretaking duties in the hands of a third-party. More often than not, the caretaker or custodian provides adequate services, performing his/ her duties admirably. However, as we are all undoubtedly aware, situations exist in which the caretaker or custodian is negligent to a heightened degree in performing his/ her duties. In such cases, enhanced remedies for such sub-standard care can be found in the Elder Abuse Act.
In 1991, the California Legislature created civil remedies against individuals and entities that committed elder abuse. The available remedies sought to facilitate civil enforcement of elder abuse by making it more appealing for an attorney to represent a victim of elder abuse. Under the Elder Abuse Act, more ability to recover attorney fees exists, and recovery of non-economic damages (i.e. damages for pain and suffering) for a decedent is permitted up to $250,000.00 . The provision providing for non-economic damages in cases where a decedent is the victim abrogates the usual restriction on non-economic damages when a person dies.
To recover the enhanced remedies, one must show that there has been “abuse” as defined by the Act. The Act defines elder abuse as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain and mental suffering” or “the deprivation of a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” Welfare and Institutions Code Sec. 15610.07 What constitutes each of the above acts is further defined in the Act. Among the acts that would be found to constitute “abuse” include failure to provide medical care and failure to protect from health and safety hazards. Welfare and Institutions Code Sec. 15610.57
In addition to showing that abuse took place as defined hereinabove, one must show that such abuse occurred due to the caretaker’s or custodian’s recklessness, oppression, fraud, or malice. Welfare and Institutions Code Sec. 15657. It is not enough to show that the caretaker or custodian was merely negligent in performing his/ her duties. One must show that, at the very least, that the caretaker or custodian was reckless—i.e. he/ she consciously acted as he/ she did with knowledge of the serious danger to the elder.
When one is faced with a scenario in which he/ she was under the care and custody of a third party, and the care and custody fell below the standard of care, it is important to consult with an attorney to determine whether a viable cause of action for elder abuse exists.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail firstname.lastname@example.org; visit at www.kenreyeslaw.com