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The blog posts on ElderLitigant.com are not intended as legal advice and do not evidence or create any attorney-client relationship. Rather, these blog posts are exclusively for marketing and informational purposes and are intended as a legal newsletter. No representation is accepted by Benjy Law Corporation without the execution of a formal engagement agreement,.

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Churning: Financial Abuse of the Elderly in the Insurance Context

July 21, 2017

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Remedies Available to Victims of Elder Abuse

April 24, 2017

"Subject to statutory criteria and limitations, the statutory scheme now permits heightened remedies. These include pain and suffering damages even after the abused elder dies, punitive damages, and attorney fee awards." (Estate of Lowrie, 118 Cal. App. 4th 220 (2004).)

 

In addition, "an attachment may be issued in any action for damages pursuant to Section 15657.5 for financial abuse of an elder or dependent adult".  (See Welfare and Institutions Code Section 15657.01.)  In common language, this means that California statutory law enables a victim of financial elder abuse to obtain a PRE-judgment judicial lien against assets that were unlawfully appropriated by the perpetrator. Stated otherwise, early in your case, your attorney can ask the court to issue a writ of attachment (a judicial lien) to preserve the status quo as to title to your improperly taken asset(s) until the case can run its course.

 

For instance, if your home has been taken by means of undue influence and the perpetrator is in escrow to sell the home to an innocent third-party (which could cause bigger problems for the victim in trying to get title back), the plaintiff's attorney can file a lawsuit and promptly after filing suit file a motion for writ of attachment against the home. If granted, the order issuing the writ of attachment and a copy of the writ should be promptly and formally served on escrow to stop the sale from closing, thereby preserving the asset for final judicial determination of rights thereto.

 

Also, "Section 15657.5, subdivision (a), provides for an award of costs and reasonable attorney fees to the prevailing plaintiff where the defendant has been found liable for financial elder abuse." (Wood v. Jamison (2008) 167 Cal. App. 4th 156.)

 

In certain instances, victims may also be entitled to recover punitive damages against the wrongdoer, which is some multiple of the actual damages they incurred and is granted as a means of punishing the wrongdoer for despicable conduct that society cannot tolerate. Punitive damages require a heightened standard of proof, however. That said, the mere fact that punitive damages are even on the table is sufficient to give elderly plaintiffs leverage over their victimizers during settlement negotiations.

 

 

 

 

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