elder abuse

elder felony abuse

My friend lives in Southern California and had an older relative that sold their house, they gave him the proceeds from the sale, so not to have their medicare wasn't cutoff for having to much money. My friend promised them he'd take care of them the rest of their life, which he is. My friend let them live next door to him in his other house rent free. Did all their errands, took them to the doctor and so forth and cared for all their needs. Then one day, after a visit from another relative, his aunt has decided my friend stole all their money (the her husband died before she moved). The other relatives (3 of them, all drunks and money hungry people) got her to sign a feloney abuse warrant for stealing her money. My friend didn't have a contract stating where the money went from the sale of the house. His Aunt gave it to him as a gift since he had always taken care of them for many years. He invested some of the money in the house they live in for repairs. What kind of a defense does my friend have now. The aunts sister's kids (his Uncle was his dad's brother) are the ones getting all this stirred up. My friend now doesn't know what to do. He told the relatives if they didn't like the way he was taking care of them, she could go live with them. This started around September, they've been back twice since then, once to get her to sign the paper. They didn't come over for Thanksgiving either. Now the police are involved and claim they have to let the courts decide, but have decided to file the felony charge because of the complaint and my friend has spent some of the money. Now there are hard feelings on both sides, the aunt now will probably end up living in a rest home since she has emphazema and her sisters kids get drunk all the time and smoke heavily. Her Dr. said she can't live alone w/o constant care. He saved her life twice in the last two years by getting her to the hospital. He works as stock broker and his securities license will be suspended while this felony charge is pending and will lose it if he's found guilty. Needs help real bad.

[Edited by jimmy40 on 12-08-2000 at 09:06 PM]

Re: elder felony abuse

jimmy40 said:

My friend lives in Southern California and had an older relative that sold their house, they gave him the proceeds from the sale, so not to have their medicare wasn't cutoff for having to much money. My friend promised them he'd take care of them the rest of their life, which he is. My friend let them live next door to him in his other house rent free. Did all their errands, took them to the doctor and so forth and cared for all their needs. Then one day, after a visit from another relative, his aunt has decided my friend stole all their money (the her husband died before she moved). The other relatives (3 of them, all drunks and money hungry people) got her to sign a feloney abuse warrant for stealing her money. My friend didn't have a contract stating where the money went from the sale of the house. His Aunt gave it to him as a gift since he had always taken care of them for many years. He invested some of the money in the house they live in for repairs. What kind of a defense does my friend have now. The aunts sister's kids (his Uncle was his dad's brother) are the ones getting all this stirred up. My friend now doesn't know what to do. He told the relatives if they didn't like the way he was taking care of them, she could go live with them. This started around September, they've been back twice since then, once to get her to sign the paper. They didn't come over for Thanksgiving either. Now the police are involved and claim they have to let the courts decide, but have decided to file the felony charge because of the complaint and my friend has spent some of the money. Now there are hard feelings on both sides, the aunt now will probably end up living in a rest home since she has emphazema and her sisters kids get drunk all the time and smoke heavily. Her Dr. said she can't live alone w/o constant care. He saved her life twice in the last two years by getting her to the hospital. He works as stock broker and his securities license will be suspended while this felony charge is pending and will lose it if he's found guilty. Needs help real bad.

[Edited by jimmy40 on 12-08-2000 at 09:06 PM]

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My response:

California's Elder Abuse laws - - which include financial abuse - - are so "air tight" that a defense is rare, and closer to nonexistent. California's laws in this regard are some of the toughest in the nation, both from a criminal standpoint and a Civil standpoint.

Personally, I think a California Legislator was on the rampage when those laws were written and passed - - they're worse than comparable child abuse statutes. I would not want to be on the receiving end of the California Elder Abuse laws.

I hope he's got a real good attorney.

IAAL

elder felony abuse

Well attorney has been acquired, said he could get him off based on the evidence, but he'd have to give him $10K upfront. Probably will be dismissed due to fact he has been taking of her for a number of years now. He doesn't have $10K. So this is now appearing that it doesn't matter if you're innocent, you're going to get heavily burned because someone accused of something. The lawyer said he might consider talking payments if he comes up with a considerable down payment. He's said his only choice to take on another mortgage on his house. Can he sue the person(s) (nephew and niece of aunt) who claimed he abused his aunt if he is found innocent for attorney fees and punitive damages?

Re: elder felony abuse

jimmy40 said:

Well attorney has been acquired, said he could get him off based on the evidence, but he'd have to give him $10K upfront. Probably will be dismissed due to fact he has been taking of her for a number of years now. He doesn't have $10K. So this is now appearing that it doesn't matter if you're innocent, you're going to get heavily burned because someone accused of something. The lawyer said he might consider talking payments if he comes up with a considerable down payment. He's said his only choice to take on another mortgage on his house. Can he sue the person(s) (nephew and niece of aunt) who claimed he abused his aunt if he is found innocent for attorney fees and punitive damages?

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My response:

I would REALLY like to know what the evidence is in this case. If the evidence is that it has happened over a period of years, and because of that it can be dismissed, then I think the attorney is sorely mistaken.

Abuse, in any form, can occur over a period of years. It's doesn't need to be a one-time occurrence.

Personally speaking, I don't envy your brother's position because as the law is written, it will take a REAL miracle to get him off from these charges.

If, by some miracle, your brother is found "innocent", rather than merely "not guilty", it would be a 90 degree uphill battle to prove, and then win, a malicious prosecution action - - in fact, I'd put it a "0".

I think, if your brother is even found "not guilty", he should just get on with his life - - as best he can.

Good luck to all of you.

IAAL

elder felony abuse

1. Uncle died, aunt lived in home by herself in very bad health and was on medicare.
2. Friend and other family members talked to her about moving near her doctor and out of the country that would take an ambulance forever to get there in case of emergency.
3. She agreed and went to Real Estate agent she already dealt with in the past to sell home.
4. Friend asked her a few times as they were signing paperwork is this what she really wanted to do. She replied in front of Real Estate Agent. Yes.
5. After sell, she would have had to buy a new house or give equity away or she'd lose her medicare for having to much money. Since the insurance she was provided was worth more than the equity she gave the money to my friend who was going to be sole heir to her will anyway. Unfortunately at the time of transaction no papers where signed.
6. Was never given anything before from his Aunt.
7. Aunt is now under heavy medication due to illnesses and forgets a lot. Nobody from his side, Aunts, Uncles, Brothers, Sisters, Cousins think he did anything wrong. But then again, nobody else will talk to her because she has been very mean to them. One of them lived with her for a few months after Uncle died and had to move out due to constant harrassment.
8. Friend offered to go to arbitration with Aunt's side of the family (nephew and niece) to have a person decide if he owes money or not, they refused and came back to home when he was gone and had Aunt sign paperwork to file charges.
9. Evidence? Only thing is money left over from sell, probably about $15-$20,000. She has lived in house that would rent for about $800 month rent free for about 24 months, value $19,200. Has taken her to doctors, store or whatever, whenever she wanted. Has done this for years for free when nobody else offered to help. Has never taken gas money or gifts before for helping out.
10. Result of this felony charge as it stands so far, Aunt will devistated by living in resthome as her family members will not take her in. It is very sad.

Here' the evidence they pursued the felony charge, nothing else. What do you think?

Re: elder felony abuse

jimmy40 said:

1. Uncle died, aunt lived in home by herself in very bad health and was on medicare.
2. Friend and other family members talked to her about moving near her doctor and out of the country that would take an ambulance forever to get there in case of emergency.
3. She agreed and went to Real Estate agent she already dealt with in the past to sell home.
4. Friend asked her a few times as they were signing paperwork is this what she really wanted to do. She replied in front of Real Estate Agent. Yes.
5. After sell, she would have had to buy a new house or give equity away or she'd lose her medicare for having to much money. Since the insurance she was provided was worth more than the equity she gave the money to my friend who was going to be sole heir to her will anyway. Unfortunately at the time of transaction no papers where signed.
6. Was never given anything before from his Aunt.
7. Aunt is now under heavy medication due to illnesses and forgets a lot. Nobody from his side, Aunts, Uncles, Brothers, Sisters, Cousins think he did anything wrong. But then again, nobody else will talk to her because she has been very mean to them. One of them lived with her for a few months after Uncle died and had to move out due to constant harrassment.
8. Friend offered to go to arbitration with Aunt's side of the family (nephew and niece) to have a person decide if he owes money or not, they refused and came back to home when he was gone and had Aunt sign paperwork to file charges.
9. Evidence? Only thing is money left over from sell, probably about $15-$20,000. She has lived in house that would rent for about $800 month rent free for about 24 months, value $19,200. Has taken her to doctors, store or whatever, whenever she wanted. Has done this for years for free when nobody else offered to help. Has never taken gas money or gifts before for helping out.
10. Result of this felony charge as it stands so far, Aunt will devistated by living in resthome as her family members will not take her in. It is very sad.

Here' the evidence they pursued the felony charge, nothing else. What do you think?

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My response:

I think he's screwed under the law because he never got anything in writing, nor did he go to court to Petition for Conservatorship.

Therefore, from the way it looks to outsiders and the other family members, he was bilking this old lady and had no rights to her money without something in writing.

He's going to need a toothbrush and changes of underwear.

Sorry.

IAAL

1.What if the Aunt is proven not to be of sound mind at this time? Not to say she wasn't at the time of the sale of her home.
2. What if, with the help of an investigator, he can prove,
A. The Nephew is scamming the government by accepting disability and at the same time working for cash part time.
B. The Niece, has parties on the weekend with the Hells Angels at her house where drugs are difinitely there.

Wouldn't this discredit them and show motives for their actions of why they'd want to get their hands on the money.

I feel so sorry for my friend, he only tried to help. I've known him since grade school and he's never done anything wrong in his life. I know this isn't going to be good enough reason to get him off. Even if he discredits them would the ADA still go after him because they are a funded group, and they need to bring as many people as possible to trial in order to get their funds each year?

Thank you for you previous post, I really appreciate it. Honest answers is what I'm looking for to tell my friend.

My response:

Discrediting his niece and nephew are not going to be admissible. It's not them who are prosecuting your friend. They are only responsible for bringing the matter to the D.A.'s attention.

When the Investigators found a crime to have allegedly been committed, the crimes became a State matter; i.e., it is the D.A. that is prosecuting this matter in the name of the People of the State of California, not the names of the niece or nephew.

The evidence of a crime is apparently there. Without written permission, it appears as if your friend was bilking an elderly person - - not that he was, but it appears to be that way. That's what criminal trials are all about and your friend is innocent until proven guilty, beyond a reasonable doubt and to a moral certainty.

Now, if the niece and nephew were suing in a Civil lawsuit, that would be another story and, yes, the motivations of the niece and nephew could be called into question - - but even then, the facts would remain the same - - that he had no written authority to take charge of the finances.

IAAL

elder felony abuse

If my friend is found guilty. Is he looking at doing time in prison? Or would there be punitive damages only? Or both?

Re: elder felony abuse

jimmy40 said:

If my friend is found guilty. Is he looking at doing time in prison? Or would there be punitive damages only? Or both?

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My response:

The California Elder Abuse Act, found in the "Welfare and Institutions Code" states in pertinent part regarding penalties:

Section 15656.
(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an elder or a dependent adult, to suffer, or inflicts unjustifiable physical pain or mental suffering upon him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation such that his or her person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years.
(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an elder or a dependent adult, to suffer, or inflicts unjustifiable physical pain or mental suffering on him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation such that his or her person or health may be endangered, is guilty of a misdemeanor.
(c) Any caretaker of an elder or a dependent adult who violates any provision of law prescribing theft or embezzlement, with respect to the property of that elder or dependent adult, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years when the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400), and by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding one year, or by both that imprisonment and fine, when the money, labor, or real or personal property taken is of a value not exceeding four hundred dollars ($400).
(d) As used in this section, "caretaker" means any person who has the care, custody, or control of or who stands in a position of trust with, an elder or a dependent adult.
(e) Conduct covered in subdivision (b) of Section 15610.57 shall not be subject to this section.

IAAL