Elder Abuse Restraining Orders – White v. Wear – And Forward From Jeffrey Galvin, Downey Brand

Elder abuse restraining orders are in the California news. See my prior post New law expands legal standing in California to petition for a restraining order to stop and prevent elder and dependent adult isolation abuse at https://wordpress.com/post/californiaestatetrust.com/2385.

The following is a link to a new post by Jeffrey Galvin of the Downey Brand law firm in the Trust on Trial blog discussing new California case White v. Wear https://www.trustontrial.com/2022/03/elder-abuse-restraining-orders-may-prevent-estate-planning-changes/

As Mr. Galvin writes “In White v. Wear (2022) ___ Cal.App.5th ___, the Court of Appeal reviewed the issuance of an elder abuse restraining order that precluded the respondent from making or facilitating any change to the estate plan of her 94-year-old stepfather.  Such an order might preempt an estate planning change and thereby avoid a future contest over a will or trust.”

In White v. Wear the Court of Appeal held that the trial court did not abuse its discretion in entering a restraining order against a step child who tried to unduly influence her mother’s elderly husband to change his estate plan to benefit the mother and the step child. California has long had statutes prohibiting elder and dependent adult abuse – however, there still are relatively few court decisions that interpret or apply those statutes. In White v. Wear the Court discussed restraining orders under California Welfare and Institutions Code section 15657.03 under which a court may issue a restraining order to prevent threatened or actual physical and financial abuse of an elder or a dependent adult.

Quoting from White v. Wear, the following is additional overview from the Court’s Opinion:

“The parties to this appeal are no strangers to this court. This case is yet another skirmish in a long series of disagreements about the control of the multi-million-dollar estate[1] of nonagenarian[2] Thomas S. Tedesco.[3] Plaintiff and respondent Laura White is one of Thomas’s three biological daughters and a cotrustee of his living trust. (Conservatorship of Tedesco (Sept. 19, 2019, E070316) [nonpub. opn.] review denied Dec. 18, 2019, S258835 (Conservatorship, E070316).) Defendant and appellant Debra Wear aka Debbie Basara Wear is one of Thomas’s stepdaughters. In 2013, Thomas suffered serious health issues, which resulted in significant cognitive impairment, leaving him susceptible to being unduly influenced by anyone close to him. Gloria Tedesco, Thomas’s second wife, began denying White and her sisters access to their father, causing him to believe that they were stealing from him. Wear assisted Gloria, her mother, in unduly influencing Thomas via contacting, or facilitating access to, attorneys in order to change Thomas’s estate plan to disinherit his biological family in favor of Gloria and her family. Thus, on August 13, 2015, a permanent conservator of Thomas’s estate was appointed.

Despite the existence of the conservatorship, Wear continued to assist Gloria in taking actions to unduly influence Thomas to change his 30-plus-year estate plan. Consequently, upon White’s petition, the superior court issued an elder abuse restraining order (EARO), restraining Wear for three years from, among other things, financially abusing Thomas, contacting him (either directly or indirectly), facilitating any change to his estate plan, coming within 100 yards of him, and possessing any guns, other firearms, and ammunition. (Welf. & Inst. Code,[4] § 15657.03.) Wear contends the EARO is void because (1) the judge was disqualified and (2) he violated due process by substantially amending the allegations in the petition and prohibiting her from possessing firearms and ammunition. She further asserts the petition fails to state a cause of action for elder financial abuse. We agree the court erred in including a firearms and ammunition restriction in the EARO and direct the court to strike it. Otherwise, we affirm.[5]

Slowly, over time, California is adding additional teeth to its elder and dependent adult abuse statutes and cases, and to the toolbox that attorneys and other professionals can use to prevent and remedy elder and dependent adult abuse. If you scroll through this blog you will find other blog posts discussing conservatorships, elder and dependent adult abuse, mental and physical capacity and limitations, undue influence, litigation, mediation, and other related topics.

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Best to you,

David Tate, Esq. (and inactive CPA)

  • Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, and Founder; and Trust, Estate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, Contentious Administrations, etc.
  • Mediator
  • D&O, Governance, Workplace, Boards, Committees, and Executives, Investigations, Internal Controls and Auditing, Law, Laws and Legislation, Responsibilities and Duties, Rights, Liability, and Damages, etc.

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.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing as an attorney in California only.

Elder Abuse In Australia On The Rise – Government Makes A $100 Million Pledge

Click on the following link for an article out of Australia, elder abuse is domestic violence and is on the rise – the government makes a $100 million pledge: Click Here For The Article

AU Elder Abuse Article

Updated Elder Abuse and Protection Presentation Slides – Please Read and Forward

I have provided below a link to a PDF of my October 12, 2015, updated elder and dependent adult abuse and protection presentation slides. The slides are extensive. This is an important topic – and the resources are not sufficient to prevent or remedy the problem.

Please read and also forward this post and the materials to other people who would be interested. Click on the following link for the PDF and slides, ELDER ABUSE AND PROTECTION 10122015 FINAL

You can also find other discussions about this topic on other blog posts.

Thank you. Dave Tate, Esq., San Francisco and throughout California