Financial abuse continues to be on the rise. The following is California’s Civil Jury Instruction 3100 for the essential factual elements that are necessary to establish financial abuse. I have cleaned up the jury instruction somewhat so that it is easier to read for this post.
You will notice that the jury instruction is fairly broad and generally worded so that it can apply in a variety of cases. In every case, consider the facts that you and the other side will need to prove or disprove to establish the case and/or defenses, and the evidence that exists, the evidence that you believe exists but that you don’t have and that you expect or hope to obtain, and the evidence that you don’t believe exists or that you don’t believe you will be able to obtain.
Note. The designation defendant/perpetrator as indicated below can be an individual or in appropriate circumstances the employer of the defendant/perpetrator, and the plaintiff/victim can be an individual or in appropriate circumstances a decedent victim or the representative of the victim.
The jury instruction:
[Plaintiff/victim] claims that [defendant/perpetrator] violated the Elder Abuse and Dependent Adult Civil Protection Act by taking financial advantage of [him/her]. To establish this claim, [plaintiff/victim] must prove that all of the following are more likely to be true than not true:
1. That [defendant/perpetrator] took/hid/appropriated/obtained or retained [plaintiff/victim]’s property or assisted in taking/hiding/appropriating/obtaining or retaining [plaintiff/victim]’s property;
2. That [plaintiff/victim] was 65 years of age or older or a dependent adult at the time of the conduct;
3. That [defendant/perpetrator] took/hid/appropriated/obtained or retained/assisted in taking/hiding/appropriating/obtaining or retaining the property for a wrongful use or with the intent to defraud or by undue influence;
4. That [plaintiff/victim] was harmed; and
5. That [defendant/perpetrator]’s conduct was a substantial factor in causing [plaintiff/victim]’s harm.
One way [plaintiff/victim] can prove that [defendant/perpetrator] took/hid/appropriated/obtained or retained the property for a wrongful use is by proving that [defendant/perpetrator] knew or should have known that [his/her] conduct was likely to be harmful to [plaintiff/victim].
[Defendant/perpetrator] took/hid/appropriated/obtained or retained the property if [plaintiff/victim] was deprived of the property by an agreement, gift, will, or trust or [specify other testamentary instrument] regardless of whether the property was held by [plaintiff/victim] or by [his/her] representative.