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All too often, a person may feel that an elderly loved one is clearly being taken advantage of by another – whether it be a friend, close family member, or perhaps even a caretaker. But what can you do about it? Especially if that loved one doesn’t agree?
In order to bring any lawsuit, a plaintiff or petitioner must have standing, or the legal capacity to
sue. This can usually be established if the party can show an actual interest in the outcome of a
case. The complaining party must show (1) some actual or threatened injury; (2) a causal
connection between the injury and the conduct of the defendant or respondent; and (3) redressability of the injury by a favorable decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992).
Elder Financial Abuse Defined
The definition of elder financial abuse is found in Welfare & Institutions Code (“W&I”)
§15610.30, which says that “financial abuse” of an elder occurs when a person or entity:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.
Standing
OK, then – so who actually has standing to bring an action for elder financial abuse?
While an elderly person is still alive, he or she will, of course, have standing to sue for elder financial abuse against themselves. But what if that person does not want to file a lawsuit? Oftentimes, a loved one may not want to pursue legal action. He or she may not recognize the wrongdoing or have a capacity issue. Sometimes there are feelings of guilt over suing a friend or family member, or the elder may even fear for their own safety.
For a third party to have standing while the elder is alive, that person must be a “representative” of the elder. What does that mean?
W&I §156010.30 also defines the term “representative,” which is either (1) a conservator, trustee, or other representative of the estate of the elder or dependent adult; or (2) an attorney-in-fact of an elder or dependent adult acting within the authority of the power of attorney instrument. See W&I §15610.30(d).
Therefore, for a third party to bring a claim of elder financial abuse on behalf of a loved one who is still alive, he or she would have to have some form of a fiduciary relationship with the alleged
victim – whether it be as his or her attorney-in-fact, or the trustee of his or her trust. In the absence of one of these relationships, a third party could possibly petition the court for conservatorship over the elder or appointment as a guardian ad litem; however, the odds of success seem remote if the elder is already opposed to bringing the action him- or herself.
Thus, in situations where a person wishes to bring an elder financial abuse claim on behalf of a
loved one, that person will be barred from doing so unless he or she is already an attorney-in-
fact, trustee, conservator, or other “representative” of the elder. Even a child of the elder or a
beneficiary of the elder’s trust or estate would not have the requisite standing otherwise. This
was further established in Tepper v. Wilkins, 10 Cal.App.5th 1198, 217 Cal. Rptr. 3d 111 (Cal.
Ct. App. 2017).
In cases where the elder has passed away, the requirement of standing broadens and can be satisfied by the personal representative of the decedent’s estate or, if there is no personal
representative, the decedent’s intestate heirs, successors in interest, and other “interested persons” as further defined by the Probate Code. See W&I §15657.3(d). However, it should be noted that a four-year statute of limitations does exist for elder financial abuse claims, starting when the party discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse. See W&I §15657.7.
Example of Standing
Several years ago, I represented a client whose sibling threatened to sue her for elder financial
abuse. The sibling claimed the client committed elder financial abuse by causing their parents to sell their personal residence to her for a price he did not like. He claimed that the client’s alleged wrongdoing caused a loss to his future inheritance.
In actuality, the parents sold their house to their daughter, the client, under an arrangement where they would have a lifetime right to occupancy, which affected the overall value of the property.
Aside from the sibling’s lack of an enforceable legal interest or entitlement to an inheritance (the parents are entitled to do with their property as they wish), he lacked standing to even bring the action. He had no fiduciary relationship with his parents that would qualify him as a “representative,” and Mom and Dad, of course, would not join in their son’s threatened lawsuit.
After we informed the sibling's attorney that their client lacked the requisite legal standing to make good on his threats, no further action was taken.
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