Can You Sue for Elder Financial Abuse?

Many older people are vulnerable to financial exploitation by caregivers, friends, and family members. In serious cases, elder financial abuse can take away a person’s entire life savings and deprive them of the ability to support themselves. 

You can take legal action to recover financial losses from theft or fraud with a civil lawsuit. You can file a lawsuit against caregivers, nursing home staff, and nursing home owners for financial losses, emotional distress, and punitive damages.

For legal advice about filing an elder financial abuse claim, talk to an experienced elder law attorney.

Elder Financial Abuse Cases

According to the National Council on Aging (NCOA), approximately one in 10 seniors aged 60 or older experiences some form of elder abuse.

“I’ve seen a lot,” says Ingrid M. Evans, an elder law attorney in San Francisco. “What I see the most is caregiver fraud. This involves caregivers who get intertwined in the lives of an older adult, gain power of attorney, then get in their wills, their homes, or their trusts.”

Evans also sees “quite a bit of insurance fraud, with agents selling bad products to seniors that lock up their money. I also see a lot of extended family issues, too, where a mistress comes in and has everything passed on to her instead of the original heirs.”

Diminished Capacity: A Hallmark of Elder Financial Abuse Cases

Anne Marie Murphy, a trial attorney focusing on elder abuse matters at Cotchett, Pitre & McCarthy in California, notes that a hallmark of these cases is the elderly victim having a diminished capacity, be it dementia or Alzheimer’s.

Physical abuse typically takes place in a nursing home setting or in long-term care. However, financial abuse “can run the gamut of every type of financial scam or scheme you could imagine.”

A common occurrence Murphy sees is the ‘broken-wing syndrome’ — wherein an adult child continues to live with an elderly parent, leading the other siblings to believe they may be taking advantage of them. “We want to be taking the case that’s going to benefit the elder, as opposed to one part of feuding siblings.”

You can contact Adult Protective Services (APS) or local law enforcement to report suspected elder abuse, including financial exploitation. Contact your local elder abuse hotline for more information.

Types of Legal Claims for Financial Abuse Lawsuits

Elder abuse can involve both criminal claims and civil claims. Criminal claims are heard in criminal court, with the state as the plaintiff. Penalties for criminal cases include fines and possible jail time. In some cases, the prosecutor can recover some compensation for the victim. 

In a civil claim, the victim is the plaintiff. The victim of elder abuse can recover compensation from the perpetrators. Damages can include financial losses and other forms of compensation, such as emotional distress, punitive damages, and legal fees. 

Many victims of elder financial abuse prefer to pursue civil claims to sue for financial abuse instead of going through the criminal court. The burden of proof is also lower in civil cases. This means that even if you could not prove your case in criminal court, you can win a civil lawsuit to sue for elder financial abuse. 

There are a few types of civil claims you can pursue for elder financial exploitation, including: 

• Breach of fiduciary duty
• Common law fraud
• Embezzlement/conversion
• Negligence
• Undue influence to invalidate a will or other document
• State-specific elder financial exploitation protections

Breach of Fiduciary Duty

Some professions have a fiduciary duty to their clients. Attorneys, guardians, conservators, and others have a fiduciary duty to act in their clients’ best interests.

If an attorney or guardian misuses or steals money or property from the elderly client, they have breached their fiduciary duty. Victims can compel an accounting of their money and property. In a civil lawsuit, they can recover their stolen assets and seek other compensatory damages. 

Common Law Fraud

Fraud involves making material misrepresentations with the intent to deceive and fraudulently obtaining money or property. Fraud is a crime, but you can also file a civil claim for losses related to fraud.

Most elder abuse involves someone the victim knows, like caregivers or family members. However, a fraud claim is a way for you to recover money from scammers, deceptive companies, or others who misrepresented their services to convince you to give them money. 

Embezzlement and Conversion

Embezzlement and conversion differ from fraud because the perpetrator has access to the money or property.

For example, a conservator may have access to the elderly person’s checking account to manage their finances. A dishonest conservator could write themselves checks or take more money than necessary to provide for the elderly person in their care. Embezzlement and conversion can be difficult to identify.

Talk to your attorney about getting an accounting to identify possible theft if you suspect embezzlement. 

Undue Influence to Invalidate a Will or Other Documents

By showing that the perpetrator exerted undue influence or forced the victim to sign legal documents, the court can invalidate the documents. Undue influence may involve isolation, coercion, or exploiting an older person’s diminished mental capacity. 

For example, a family member threatened to withhold food unless the elderly person made a new will leaving everything to the abuser. By showing a family member forced the person to sign the document under duress or threat, the court can invalidate the unnatural will. 

State Elder Financial Abuse Protections

Some states have statutes that directly address elder financial abuse and exploitation. These laws provide an incentive for victims or their family members to pursue elder financial abuse claims. 

For example, in California, transfers in wills or trusts to a caregiver are presumed to be a product of undue influence or fraud. State law also provides for double damages for bad faith financial abuse. When the plaintiff prevails in an elder financial exploitation claim, the defendant must pay the plaintiff’s legal fees. 

A number of other states have statutes specifically addressing the financial exploitation of vulnerable adults. The following table lists states with laws that provide for attorney fees and/or enhanced damages for civil claims involving elder financial abuse. 

State	Enhanced Damages	Attorney Fees	State Statute
Arizona	Actual and consequential (punitive)	Discretionary	A.R.S. § 46-455
California	Double damages (bad faith)	Mandatory	Cal. Welf. & Inst. Code §15657.5
Florida	Treble damages	Mandatory	Fla. Stat. § 415.1111
Georgia	Actual and punitive	Discretionary	GA Code § 10-1-853
Illinois	Treble damages	Mandatory	720 ILCS 5/17-56
Indiana	Treble damages	Mandatory	Ind. Code § 34-24-3-1
Maryland	Treble damages	Discretionary	MD Est. & Trusts § 13-606
Nevada	Double damages	Mandatory	NRS § 41.1395
Oregon	Treble damages	Mandatory	ORS § 124.100
Tennessee	Actual and punitive	Mandatory	TN Code § 71-6-120
Utah	Actual and punitive	Discretionary	UT Code § 62A-3-314
Washington	Actual damages	Mandatory	RCW § 74.34.200
West Virginia	Double or treble damages	Mandatory	WV Code § 55-7J-3

Other states may also authorize attorney fees or enhanced damages through other statutes or common law claims. Talk to your attorney about whether you can recover enhanced damages and attorney fees in your state. 

Recognizing the Signs of Potential Elder Financial Abuse

Unlike physical abuse, elder financial abuse is not always easy to detect. But there are some common warning signs in a financial situation that should raise concerns:

• The elderly person has become dependent on a single caregiver who restricts the person’s access to the outside world
• A pattern of unusual or unexplained activity on the elderly person’s bank accounts, such as sudden, large withdrawals
• Evidence of forgery in the elderly person’s checkbooks or estate planning documents
• The elderly person has unpaid bills even though someone holds a power of attorney to make such payments on their behalf
• A new individual suddenly appears and starts managing their financial decisions
• Changes to the estate plan documents at a time when the older person had questionable capacity or after a diagnosis of dementia

Filing a Civil Lawsuit Against the Abuser

You can file a civil lawsuit against the perpetrators of abuse. You can name the abusers as the defendants in your civil lawsuit. If you are not sure who is involved, your attorney can add additional defendants, and the case goes through discovery. However, other parties may be liable for your damages in addition to the direct abusers. 

Employers are vicariously liable for the negligence of their employees when acting in the course of employment. In some cases, the nursing home, staffing agency, or other employer can share liability for damages caused by their employee’s actions. 

A nursing home is also liable for damages caused by negligent hiring and negligent supervision. For example, if a caregiver had a criminal record for theft or exploitation and hired the worker anyway, the nursing home is liable for negligently hiring the abuser to care for the victim. 

Additional Remedies in a Financial Exploitation Case

Remedies in an elder abuse case go beyond recovering financial damages. You can also get an injunction to require a party to do or not do something. For example, you could get a court-ordered injunction to require a caregiver not to touch, sell, or move property or assets that they may have obtained from the victim. 

You can also petition the court for a protection order. An order of protection, or restraining order, prohibits contact between the victim and the perpetrator. Protection orders generally specify the type of protection, including physical distance and types of communication.

Prohibited communication can include text messages, email, social media contact, and using other people to communicate with the victim. The court can issue a temporary or emergency protection order before a court hearing to put a longer-term protection order in place. 

Practical Issues in Recovering Compensation

There are practical issues that may make it difficult for you to recover compensation, even if you win your case. If an abusive family member or caregiver steals money from you and then spends it all, they may not have the assets for you to recover damages.

Many abusers are individuals who quickly spend any stolen funds, leaving little for the court to recover after a finding of civil abuse. Talk to your elder abuse attorney about the chances of recovering compensation in your elder financial abuse case. 

Preventing Elder Financial Abuse Before It Starts

The best option is to prevent elder financial abuse before it ever starts. If you suspect possible elder abuse, including financial exploitation, report it immediately. You can report suspected abuse to Adult Protective Services, law enforcement, or your local elder abuse hotline. 

The simplest way to protect your family members from financial abuse and scammers is to “stay involved in their lives,” Evans says. “Don’t let a caregiver have unfettered access to a senior and let them become their sole confidant. Help them with their finances. Hire a licensed and bonded person in that area who isn’t going to abuse them financially,” she adds.

“Ask if they have an estate plan and, if they do, ask for a copy of it. Ask if they’ve changed it or if anyone has pressured them to change it. People don’t like to talk about these things, but it’s really important to do so — no matter what your age.”

One of the most blatant forms of elder financial abuse involves someone giving an older adult “papers to sign” without explaining them. This is a trick often used to obtain a power of attorney, which can grant the agent named complete control of the older adult’s finances. Never sign any paperwork without reviewing it yourself. If you don’t understand legal documents, speak to an independent estate planning attorney who has a fiduciary duty.

Find an Attorney Experienced in Elder Abuse Cases

“I am very blunt with people,” she adds. “As long as an elder is alive, nobody has a legal right to their estate. And, as long as an elder has capacity, they can do absolutely anything they choose with their money.”

Talk to an attorney about ways to protect your loved ones from financial exploitation in a care facility or nursing home. Use the Super Lawyers directory to find an experienced elder abuse attorney in your area for legal advice about reporting suspected abuse of an older adult.