California Assembly Bill No. 1243, signed by Governor Newsom on September 23, 2021, in relevant part expands the definition of an “interested party” who has legal standing to petition the court for a restraining order to enjoin (i.e., stop and prevent) elder and dependent adult isolation abuse. Assembly Bill No. 1243 is effective beginning January 1, 2023.
For the purpose of seeking the restraining order to enjoin (i.e., to stop and prevent) the isolation, pursuant to Assembly Bill No. 1243, beginning January 1, 2023 the term interested party will be expanded to include the following: “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. Thus, for example, if the requisite factual circumstances exist, friends and family members will now (beginning January 1, 2023) have legal standing to file a petition requesting the court to issue an order enjoining the wrongdoer from isolating the elder or dependent adult victim.
Elder and dependent adult cases present challenging legal issues relating to proof and remedies. And the elder or dependent adult victim can feel torn and pulled in different emotional and relationship directions. For example, situations are common where a wrongdoer is trying to unduly influence or take financial advantage of and to be alone with and isolate the elder or dependent adult victim so the wrongdoer can more easily badmouth others or take or steal or get the victim to change her or his estate planning documents, while good family members and friends are also trying to protect the elder or dependent adult and to keep the wrongdoer away. I have seen in these situations a wrongdoer who tries to use the law to help the wrongdoer to be able to continue to see and be with the elder or dependent adult victim including petitioning the court for an order to prevent the good people from keeping the wrongdoer away. And the victim is torn because she or he mistakenly believes the wrongdoer is actually a benevolent friend or family member.
Although California law does tend to extend legal standing in elder and dependent adult abuse cases more broadly than the laws in some other states (such as Florida, for example, where it is still too limited), even in California legal standing needs to be expanded to the greatest extent possible so that wrongdoers aren’t able to hide behind the law as a shield, and Assembly Bill No. 1243 will be helpful in that regard (beginning January 1, 2023). But, of course, this new provision would be even more helpful if it is made effective immediately.
The following are select relevant wording provisions from Assembly Bill No. 1243:
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
(a) It is the intent of the Legislature to prevent domestic violence, including elder and dependent adult abuse, and particularly to preserve the physical and mental health of vulnerable Californians.
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(b) The Legislature finds and declares that one way perpetrators of domestic violence, including elder and dependent adult abuse, are able to continue with their abuse is by preventing trusted friends and family members from seeing or contacting a vulnerable adult. As the vulnerable adult is isolated, it becomes more and more difficult for others to identify signs of abuse. The isolation also allows the perpetrator to potentially take over finances and hide any indications that they are doing so.
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A court order is not required for an elder or dependent adult to engage in visitation from anyone from whom the elder or dependent adult desires visitation.
(c) The Legislature further finds and declares that it is extremely important that the health and well-being of a vulnerable adult be front and center in any decision affecting them.
(d) It is the intent of the Legislature that the changes made by this act ensure that vulnerable adults are able to protect and preserve their physical and mental health, by making certain that these vulnerable adults are able to maintain important familial and social connections that they desire, and that a perpetrator does not cut off those relationships in an attempt to take advantage of the vulnerable adult.
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Section 15657.03 is added to the Welfare and Institutions Code, to read:
(a) (1) An elder or dependent adult who has suffered abuse, as defined in Section 15610.07, may seek protective orders as provided in this section.
(2) (A) A petition may be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or dependent adult who acts within the authority of a power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek the relief.
(B) (i) Subject to clause (ii), if the petition alleges abuse of an elder or dependent adult in the form of isolation, the term “other person legally authorized to seek the relief” as used in subparagraph (A) includes an interested party as defined in paragraph (3) of subdivision (b) [DTate: see below].
(ii) Clause (i) shall apply only for the purpose of seeking an order enjoining isolation under subparagraph (E) of paragraph (5) of subdivision (b).
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(b) For purposes of this section:
(1) “Abuse” has the meaning set forth in Section 15610.07.
(2) “Conservator” means the legally appointed conservator of the person or estate of the petitioner, or both.
(3) “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. A preexisting relationship may be shown by a description of past involvement with the elder or dependent adult, time spent together, and any other proof that the individual spent time with the elder or dependent adult.
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(5)(E) (i) After notice and a hearing only, an order enjoining a party from abusing an elder or dependent adult by isolating them. An order may be issued under this subparagraph to restrain the respondent for the purpose of preventing a recurrence of isolation if the court finds by a preponderance of the evidence, to the satisfaction of the court, that the following requirements are met:
(I) The respondent’s past act or acts of isolation of the elder or dependent adult repeatedly prevented contact with the interested party.
(II) The elder or dependent adult expressly desires contact with the interested party. A court shall use all means at its disposal to determine whether the elder or dependent adult desires contact with the person and has the capacity to consent to that contact.
(III) The respondent’s isolation of the elder or dependent adult from the interested party was not in response to an actual or threatened abuse of the elder or dependent adult by the interested party or the elder or dependent adult’s desire not to have contact with the interested party.
(ii) The order may specify the actions to be enjoined, including enjoining the respondent from preventing the interested party from in-person or remote online visits with the elder or dependent adult, including telephone and online contact.
(iii) An order enjoining isolation under this section is not required for an elder or dependent adult to visit with anyone with whom the elder or dependent adult desires visitation.
(iv) An order enjoining isolation shall not be issued under this section if the elder or dependent adult resides in a long-term care facility, as defined in Section 9701, or a residential facility, as defined in Section 1502 of the Health and Safety Code. In those cases, action may be taken under appropriate federal law.
(v) An order enjoining isolation shall not be issued under this section if the elder or dependent adult is a patient of a health facility as defined in subdivision (a), (b), or (f) of Section 1250 of the Health and Safety Code. In those cases, action may be taken under other appropriate state or federal law.
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Best to you,
David Tate, Esq. (and inactive CPA)
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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
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