When most people hear about domestic violence, what comes to mind is the abuse of an intimate partner or spouse. Domestic violence, however, is a broad topic that constitutes different types of abuse. The common forms of abuse include financial, emotional, or physical abuse of dependent adults and elderly people. It can be complicated to understand elder abuse, especially who qualifies as an elder. Under California law, an elder is any person above the age of 65 years. Elder abuse can occur in a home setting, where the elder's relatives perpetrate it. However, elder abuse does not have to happen within a home setting since it can occur in homes for the aged or other locations. You require a skilled attorney to help you seek an elder abuse restraining order or fight against one. At the Goldman Flores | Restraining Order Law Firm, we have dedicated attorneys who can help in all matters related to restraining orders.
Elder/Dependent Adult Abuse Explained
An elder is defined under California Welfare and Institutions Code 15657.03 as a person 65 years or older. In the legal literature, an elder is also known as a "senior." Unlike younger adults, elders are vulnerable to a litany of mental and physical deficiencies, which require medication and medical treatment. A dependent adult, on the other hand, is a person who is between 18 years and 64 years. The person can have mental or physical limitations which prevent them from performing normal daily activities. Elders and dependent adults fall under the class of "vulnerable" people.
The court can issue an elder abuse restraining order in situations where the elder/dependent adult has been a victim of elder and dependent adult abuse. Elder abuse is outlined under the California Penal Code 368, and it is a severe offense that can be charged as a felony.
The judge can impose a restraining order on you if a person is guilty of elder abuse. Elder abuse can include any of the following:
Abandonment
Abandonment involves cases where a caregiver abandons a vulnerable senior. The act of abandonment can put the vulnerable senior at risk, even if it does not result in actual injury or death. Both abandonment and neglect are more passive cases of elder abuse. In this case, the perpetrator does not actively abuse the vulnerable adult. However, the perpetrator can still be guilty of violating the law, and a restraining order can be imposed.
Neglect
Neglect constitutes cases where a relevant family member or caregiver fails to care for a vulnerable senior. Elders and dependent adults require food, clothes, and shelter. They need help in taking care of their hygiene. Elders also need to be protected from hazardous situations. The repercussions of neglect can include grave injury or even death in severe cases if these fundamental roles are not met. When ruling on imposing a restraining order, the judge will consider if the accused was "criminally negligent."
Financial Abuse
Financial abuse can typically involve cases where a person allegedly commits some type of criminal fraud to exploit an elder or dependent adult. This can affect all kinds of assets, funds, or property belonging to the elder or dependent adult. These vulnerable groups often receive different benefits or payments, including social security, veterans, pension, and disability benefits. If a person has mental ailments or other disabilities, he/she might be unable to handle certain financial matters. For example, an elder cannot handle financial matters if he/she is suffering from senility or dementia. Caretakers and family members usually have comprehensive access to their bank accounts. In this case, it is easy for caretakers or family members to exploit them.
Physical Abuse
Physical abuse can involve any or all forms of harm or painful physical actions. This can include sexual assault and physical restraint, including the use of drugs or medicines to restrain an elder or dependent adult. Caretakers can engage in physical abuse to try and control an elder or dependent adult. They can also harm elders because of the nature of elders' and dependent adults' physical or mental disabilities that make them confused or agitated. Some caregivers use physical force to steal from elders or dependent adults.
Emotional Abuse
Emotional abuse can include any actions that cause any form of mental anguish. This can consist of harassment or threatening an elder or dependent adult. Emotional abuse can also include willfully separating an elder/dependent adult from people, whereby an elder is not allowed to have any contact with the outside world. When a judge issues a restraining order, caretakers or other perpetrators are not allowed to access the elders or use threatening gestures or language to make the victim fearful or agitated.
The judge will issue a restraining order if the person requesting it can reasonably prove to the presiding judge that any or all of the above abuses are happening. An elder abuse restraining order is a civil proceeding. This is where a private citizen requests the court to tell another person to stop any abusive conduct. The violation of an elder abuse restraining order can also be a criminal violation.
How An Elder Abuse Restraining Order Works
There are three primary timelines for elder abuse restraining orders in California. Emergency Protective Order (EPO) is the initial one. The police can request this order from the judge if the victim faces immediate danger. The law enforcement officers request this order on behalf of an elder or dependent adult. The police can do this upon arriving at the scene of the crime after the abuse has happened. An emergency protective order lasts for a period that does not exceed one week. It prevents the defendant from contacting the elder/dependent adult during that period.
An elder/dependent adult or someone acting on their behalf can request the court for a temporary restraining order (TRO). In this case, the elder/dependent adult must provide evidence showing that he/she faces harassment or abuse and is in fear of suffering additional harm. The judge can impose the TRO against the defendant if the elder/dependent adult convinces the judge of the imminent danger. The burden of proof required usually is lesser than that of criminal proceedings. The elder/dependent adult is only necessary to show that there is a pattern of repetitive abuse that the defendant engages in, which causes fear or harm to them.
The judge can set a hearing to determine if a permanent restraining order (PRO) should be issued. The court can convene the hearing immediately once the temporary restraining order expires. It is more like a trial without the jury to hear both the defendant's and the elder's side of the story. The defendant does not have to hire an attorney to represent them during the hearing and can choose to go it alone. However, the defendant should hire a competent attorney to handle their case at the permanent restraining order hearing for the best possible outcome. If the defendant cannot afford to hire an attorney, the court cannot provide them with free legal counsel because the hearing is not a criminal trial. This is usually the first and last opportunity for the defendant to present their defense. If the judge imposes a permanent restraining order, it can run for a period that does not exceed five years.
Various materials can be presented before the judge during a permanent restraining order hearing. These can include the following:
- Any threatening correspondence the defendant allegedly transmitted
- Police reports
- Medical reports
- Photographs
- Witnesses testifying or their written statements made under oath
A competent attorney can effectively use the above evidence or fight against it.
Sometimes, elders or dependent adults can easily make false allegations against other adults. They can do so because most of them suffer from different mental disabilities, like senility, dementia, or legal, mental incompetence. Sometimes, the defendant can be accused of some kind of financial malfeasance. In this case, the defendant can claim that the elder is using the restraining order to smear their reputation or to gain control of the defendant's finances or assets.
Parties That Can Apply For Elder Abuse Restraining Order
The actual victim of the abuse or harassment can apply for a restraining order, which is also known as petitioning the court. However, certain caveats apply to elder abuse, which are specific to this offense. Elders can not always accurately perceive that they are suffering from abuse. They can also not effectively act in their own interest or seek protection from the court.
Other than the senior, other parties can petition for a restraining order on the senior’s behalf. Provisions under the law outline who is referred to as a guardian or conservator and can make decisions concerning provisions of care or living arrangements for elders. The elder being protected or cared for is known as a ward in this legal arrangement of guardianship or conservatorship. The guardian or conservator can petition for a restraining order on behalf of the elder or ward.
The law also permits trustees in cases of financial abuse to petition for a restraining order on behalf of the elder. Trustees are individuals responsible for managing and controlling a trust property and protecting its interests for beneficiaries. In this context, trust is a legal construction determining how an individual's property and assets can be distributed after death. However, it can still be in effect when a person is alive. This device protects financial assets, especially those of an individual who cannot make the best financial decisions. In this case, the trustee is legally appointed to manage the trust and economic interests of the elder. The trustee can petition for a restraining order if he/she suspects that financial abuse or exploitation is taking place.
An attorney-in-fact can also petition for a restraining order. This is an individual who is mandated to make business decisions and oversee financial transactions on behalf of the elder or dependent adult. This demands that a power of attorney document be signed under the law, permitting the attorney-in-fact to act on behalf of the elder.
A guardian ad litem can also petition a restraining order on behalf of the elder or dependent adult. The court can appoint a guardian ad litem for an elder if there is a case or criminal case regarding elder abuse. This usually happens if the judge establishes that the elder cannot adequately represent their best interests. A guardian ad litem is similar to an attorney-in-fact, except that the judge or outside entity gives them the powers instead of the elder.
Any other individual with the proper legal authorization can petition on behalf of the elder or dependent adult. This can be a caregiver or caretaker. A caregiver is an individual above 18 years old whose work is to offer care to the elders. The caregiver is directly responsible for caring for and protecting the elders daily. The survival and health of the elder in question depend on the caretaker fulfilling their duties. However, elders are often the subject of restraining orders because caregivers are the ones who perpetuate abuse against elders or dependent adults.
How The Judge Determines Whether To Impose A Restraining Order
Establishing whether a restraining order is necessary for the elder can depend on the criminal case pending against the defendant. A restraining order is typically a civil matter petitioned by another private entity but not the prosecutor. However, the criminal case that a district attorney pursues and the order that an elder pursues can run concurrently and even influence or interact with one another. The defendant should seek the services of an experienced attorney for any restraining order hearing.
When determining if the restraining order shall be imposed or not, the judge will consider the following three primary elements:
If The Defendant Intentionally Meant To Inflict Mental Or Physical Distress Or Pain And Financial Exploitation Or Abuse
This involves situations where the accused willfully threatened or harassed the elder or dependent adult. In this case, "willfully" means that the defendant made intentional decisions and was sober when making them. This can also involve cases where the accused permitted another person to commit the alleged actions. It can also include instances whereby criminal negligence permitted a situation to arise that can perpetuate elder abuse. Even if the defendant acted impartially in the abuse, it can still attract a restraining order by the judge.
If The Perpetrator Was Aware That The Victim Was A Vulnerable Adult
A vulnerable adult is a dependent adult aged between 18 years and 64 years or an elder aged 65 years or above who needs regular and intensive care from another adult. The judge must consider if the defendant willfully and knowingly took advantage of the elder before imposing a restraining order.
If The Outcome Of The Defendant's Actions Created Circumstances That Could Have Caused Death Or Injury
The purpose of a restraining order is to protect an elder or a dependent adult from continuing or future abuse. The court will determine if the results of the defendant's actions created circumstances that could have led to significant bodily injury or death or caused the elder agitation or fear. The mere act of inflicting distress or fear on an elder is sufficient to make the judge impose a restraining order.
The judge will decide whether or not to impose a restraining order after he/she has deliberated over the above three elements. It is up to the judge to resolve such matters because a jury is not required to make these determinations. Additionally, the burden of proof is lesser than in a criminal lawsuit. In a criminal case, the district attorney must prove to a jury that the defendant is guilty of the alleged charges. However, when issuing a restraining order, the judge only needs to determine whether there is enough reason for the elder to request protection from abuse. The judge will also decide the period the restraining order will last.
The Repercussions Of An Elder Abuse Restraining Order
An elder abuse restraining order is a civil court order under California law. It is only the judge who can terminate or amend it once issued, even if the elder changes their mind regarding the alleged abuse. If the judge imposes a temporary restraining order, it will run until the hearing date. This is where the judge can determine whether to extend or cancel the order, which means imposing a permanent restraining order.
A permanent restraining order can be effective for a period not exceeding five years, during which the defendant must keep off from the elder. Restrained persons can also be forced to leave their homes with their elders. Depending on the type of abuse claimed by the elder, the restrained can be prohibited from owning or possessing a firearm or ammunition. An elder restraining order can also affect the defendant's immigration status if the defendant is a non-citizen.
When the judge imposes an elder restraining order, the order is entered into a statewide computer system. At this point, the police throughout the state can see that a restraining order has been imposed. The restraining order can apply even if the defendant moves out of the state. After moving, the restrained person must notify the new local police regarding the restraining order.
Violating An Elder Abuse Restraining Order
Once the judge has imposed an elder restraining order, the defendant must adhere to its conditions. The restrained person can be arrested and charged with a crime for violating the order or even face a fine and a jail term. The most complicated thing about this order is that it does not affect the elderly but outlines what the restrained person is allowed to do. For example, the restrained person must end contact with the elder immediately if the restraining order includes no-contact requirements.
Sometimes, the elder or a dependent adult can intentionally try to trick the restrained person into violating the order in hopes that the defendant will be subjected to criminal charges. According to Penal Code 273.6, if the restrained person violates an order, he/she can face a maximum fine of $1000, a jail term of up to one year in a county jail, or both. A criminal defense attorney can help the defendant fight against criminal charges in court if the defendant unintentionally violates an elder restraining order.
Fighting Against An Elder Abuse Restraining Order
After receiving an elder restraining order notice, the defendant can go to court and explain to the judge why the order should not be enforced. It is crucial to hire an attorney during the court hearing. Securing the services of an attorney can significantly improve the chances of a favorable outcome in court. An attorney will also protect the defendant's rights to the best of their ability.
An elder abuse restraining order can have adverse effects on the defendant's life. Other types of restraining orders can apply even if the court decides that an elder abuse restraining order is not warranted. They can include criminal protective orders and domestic violence restraining orders. The defendant should hire a knowledgeable attorney if served with an elder abuse restraining order to discuss the best course of action.
Find a Restraining Order Attorney Near Me
Are you a victim of elder abuse? Perhaps you have received a notice of an elder abuse restraining order against you. At the Goldman Flores | Restraining Order Law Firm, we have experienced attorneys who offer reliable legal services throughout Los Angeles. It does not matter when you are fighting against a restraining order or seeking one.
Our attorneys will evaluate your case and determine the best course of action. We understand that every client is unique. Therefore, we do not adopt a one-size-fits-all approach when handling restraining order cases. We take time to evaluate a case and understand its unique points. You can count on our unwavering support no matter how complex your case is. Our attorneys understand all the intricacies that surround restraining order hearings. We have helped many clients seek or fight elder abuse restraining orders and achieved favorable outcomes. Contact us today at 213-341-4087 to speak to one of our attorneys.
