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Churning: Financial Abuse of the Elderly in the Insurance Context

July 21, 2017

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When can someone sue on behalf of an elderly person?

May 24, 2017


"The Elder Abuse Act ... authorizes an action to be brought not only by the elder, but also by the elder's 'personal representative' when the elder is alive but 'lacks capacity under section 812 of the Probate Code, or is of unsound mind, but not entirely without understanding, pursuant to [section 38] of the Civil Code . . . .' Under those circumstances the elder's personal representative may demand return of property on the elder's behalf and, if unsuccessful, may bring an action for damages and other relief."  


"'Personal representative' is defined as 'a person or entity that is either' '(1) [a] conservator, trustee, or other representative of the estate of an elder or dependent adult' or '(2) [a]n attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.'"


"An action may also be brought by the elder's personal representative after the elder's death."


(Tepper v. Wilkins, et al., California Court of Appeal, 2nd Appellate Dist. (Div. 7) (Case No. B269900) (emphasis added; internal citations omitted).  [The opinion was filed on April 19, 2017.])


Effectively, this means that under certain, limited circumstances, someone other than the abused or defrauded elderly person can file a lawsuit on behalf and for the benefit of the real party in interest (i.e., on behalf of the aggrieved senior).



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