Elder abuse
AN OVERVIEW OF ELDER ABUSE RESTRAINING ORDER
Section 368 PC of the California Penal Code says that elder and dependent adult abuse is a felony that almost always leads to an elder abuse restraining order. This is a severe offense that may result in criminal prosecution in certain circumstances.
Definition of an Elder:
Elderly people and individuals who rely on them are considered “vulnerable” individuals in California. Anyone older than sixty-five (65) years is referred to as an “elder” under California law. In legal writing, they are often referred to as “seniors.” Elderly people are more prone to a long list of physical and mental disorders, which need more medicine and medical attention than do younger individuals. Anyone between the ages of eighteen (18) and sixty-four (64) who needs care due to a mental or physical handicap that is severe enough to prevent them from providing for or protecting themselves is considered a dependent adult.
In the legal literature, these two groups are commonly referred to as “vulnerable adults” and are considered vulnerable populations.
Types of Elder Abuse:
A restraining order will be issued if an older person or an adult who needs help is abused. The abuse might include:
- Emotional abuse includes any activities that annoy and/or threaten the senior or dependent adult and result in any kind of emotional distress. The judge will issue a restraining order that specifically forbids this kind of threatening behavior, which can include isolating the victim on purpose, keeping them from communicating with the outside world (in the case of caregivers), and using threatening words and/or gestures to make the victim feel scared or angry.
- Physical abuse includes all negative or hurtful behaviors. This covers all types of physical constraints, including the use of medications or alcohol to control an elderly or dependent adult, as well as sexual assault. Caretakers commonly use physical abuse to attempt to control the victims due to the nature of seniors’ and dependent adults’ physical and/or mental problems (which may lead them to be irritated or confused). Physical violence is another common tactic used to steal from the elderly or vulnerable.
- Financial abuse encompasses all situations in which the offender is accused of engaging in criminal deception to take advantage of the toll of the dependent adult’s or elder’s assets, possessions, and/or finances are included in this. All types of payments or benefits, including disability, pension, veterans’ benefits, and social security, are routinely given to these disadvantaged groups of people. Elderly people who have dementia or senility are often unable to manage these kinds of financial concerns, as are dependent adults who have severe mental impairments. Family members and caregivers often have full access to their bank accounts, enabling them to take advantage of the circumstances.
- Neglect encompasses any situations when the caregiver or concerned family member fails to perform their caregiving responsibilities for the vulnerable adult. Adults who are elderly or dependent must be fed, clothed, and housed. They also need attention to their hygiene. This also covers risky or hazardous circumstances. If these essential obligations are not fulfilled, the results might be serious harm or, in extreme circumstances, death. If the defendant was “criminally negligent,” the court will consider that while deciding whether to impose a restraining order.
- Abandonment refers to any situation when the caretaker for the vulnerable adult leaves them. Even if the abandonment does not cause harm or death, it still is elder and dependent abuse in California since it puts the vulnerable adult in danger. Additionally, neglect and abandonment are more passive forms of abuse when the offender does not actively harm the vulnerable adult, but they nevertheless constitute violations of the law and may result in the issuance of a restraining order.
Condition for Acquiring a Restraining Order
If the individual who is seeking the restraining order can provide reasonable evidence to the presiding court that any or all of the categories of abuse described above are happening, then the judge will likely grant the request for the restraining order. A legal action known as an “elder abuse restraining order” is one in which a private citizen asks a court to force another individual to stop engaging in any abusive conduct against another person. When any of the terms of the restraining order are disobeyed, then there is a possibility of criminal prosecution.
Who Can Request An Elder Abuse Restraining Order?
The following people can ask for a restraining order:
- Abuse victims request restraining orders, asking the court for a restraining order. Elder and dependent adult abuse have certain exceptions. Vulnerable individuals may not be able to recognize abuse, act in their own best interests, or seek judicial protection. Thus, the older or dependent adult and other entities on behalf of the victim might file a restraining order. Conservators or guardians may make care and housing arrangements for vulnerable adults under California law. In guardianship or conservatorship, the vulnerable adult is called a “ward.” The conservator might get a restraining order for the ward (an elder or dependent adult).
- Financial abuse victims may ask trustees for a restraining order in California. Legally, trustees manage and preserve trust property for beneficiaries. This kind of trust governs how a person’s property and assets will be disbursed after death. It protects financial assets, especially those of the financially incompetent. The trustee manages the trust and the vulnerable person’s finances and may apply for a restraining order if they suspect financial abuse or exploitation.
- Attorneys-in-fact may request restraining orders. An attorney-in-fact may make business choices and manage finances for their client (in this case, the elder or dependent adult). The attorney-in-fact must sign a California-compliant power of attorney to represent the vulnerable adult.
- The vulnerable adult’s guardian ad litem may seek a restraining order. The court may appoint a guardian ad litem for a vulnerable adult in an elder abuse lawsuit or criminal proceeding. The court does this when the vulnerable adult cannot appropriately represent their own best interests. This is like an attorney-in-fact, except the court appointed them instead of the vulnerable adult.
- Finally, any authorized person may represent the vulnerable adult. A caregiver is an adult who cares for a vulnerable adult. The fragile adult is under their daily care. The caregiver’s obligations determine the vulnerable adult’s survival. Caregivers often mistreat vulnerable adults; therefore, restraining orders often target them.
How Will A Judge Determine Whether To Issue A Restraining Order?
The judge will look at three main things to decide whether or not to issue the restraining order:
- If the defendant intentionally caused emotional, bodily, and financial the defendant also harassed or intimidated the vulnerable adult. “Willfully” means the defendant made deliberate, sound-minded judgments. This includes cases in which the defense allowed another person to engage in the stated activities or criminally negligently allowed such abuse to occur. Thus, the court may have issued a restraining order because the defendant was passively abused.
- The court will consider whether the defendant’s actions caused the vulnerable adult serious physical harm or death, fear, or agitation. The main purpose of a restraining order is to protect a victim from further abuse. The victim’s prolonged anxiety or anguish frequently prompts a restraining order from the court.
- If the defendant knew the victim was a vulnerable adult, this might be an older (65+) or dependent adult (someone 18–64 years old who requires constant and intensive care from another adult). The court must determine whether the offender intentionally exploited the vulnerable adult to issue an elder abuse and dependent adult restraining order.
These three criteria will determine the restraining order. The judge, not a jury, decides. Unlike criminal courts, the burden of proof is lighter. The district attorney must prove all charges “beyond a reasonable doubt“. A restraining order hearing only requires the court to determine whether the senior or dependent adult needs protection from abuse. They may establish the duration of the restraining order.
How Does An Elder Abuse Restraining Order Work?
California has three basic timelines for elder abuse restraining orders.
- Police obtain an Emergency Protective Order, or EPO, from the court. After the abuse, they do this for the victim. EPOs prohibit the defendant from contacting the victim for one week.
- Then the vulnerable adult or their representative may get a Temporary Restraining Order (known as a TRO). The court may order a 30-day TRO if the vulnerable adult declares that they have been abused or harassed and fear further abuse. The victim needs to merely prove that the defendant’s recurrent conduct harms or frightens them since the burden of evidence is minimal.
- Finally, the court will decide whether to issue a Permanent Restraining Order (PRO). The hearing, which follows the TRO’s expiry, is a trial without a jury to hear the defendant’s and victim’s viewpoints. A qualified lawyer might help a defendant in a PRO hearing, but it is not essential. The defendant does not get free legal representation since it is not a criminal trial. The defendant has just one opportunity to present their case. PROs last five years.
The PRO hearing may provide numerous facts to the court. Photographs, medical records, police reports, and the defendant’s alleged threatening letters are admissible. A skilled counselor may argue for or against any of this evidence.
Vulnerable people also make false allegations. Dementia, senility, or legal incompetence may contaminate their testimony. In financial wrongdoing, the defense may contend that the vulnerable adult’s family is using the restraining order to malign the offender to get control of cash or assets.
The Grace Legal Group assists clients with Los Angeles, California restraining orders
Our Los Angeles restraining order attorneys can assist you in filing for the protection you need so that you may live your life without anxiety. Each client’s case is handled individually by the attorney, who first listens to their side of the story and then represents them in court. Do not go through the difficult and sometimes emotionally draining process of obtaining a restraining order on your own; instead, call our office right now if you are thinking about doing so.