Probate, trust, guardianship and inheritance litigation
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California Court Upholds Elder Abuse Restraining Order Except Firearms Prohibition

By Andrew Gold, Esq.

In White v. Wear, a March 8, 2022 opinion from the California Appellate Court, Fourth Appellate District, Division Two, the court addressed the appropriateness of an elder abuse restraining order which restrained a stepdaughter from engaging in several acts involving financial and other abuse relating to her stepfather.  This case has a long and tortured history in the California courts, involving undue influence, lack of capacity, and conservatorship.

The Facts of White v. Wear

Plaintiff Laura White is one of Thomas’s three biological daughters and the cotrustee of his living trust.  Defendant Debra Wear is one of Thomas’s stepdaughters.  In 2013, Thomas suffered serious health issues, resulting in significant cognitive impairment and leaving him susceptible to being unduly influenced by anyone close to him.  Thomas’s second wife, Gloria, began denying White and her sisters access to their father.  Wear assisted Gloria, her mother, in unduly influencing Thomas in facilitating the change of Thomas’s estate plan to disinherit his biological family in favor of Gloria and her family.  In 2015, a permanent conservator of Thomas’s estate was appointed.  Read more about California conservatorship cases here, here, and here.

Despite the conservatorship, Wear continued to assist Gloria in taking actions to unduly influence Thomas to change his 30-plus year estate plan.  The facts of this case and the undue influence that occurred are set forth at length in the opinion, and are worth a read.

The Elder Abuse Restraining Order

White petitioned for the implementation of an elder abuse restraining order (EARO) based on Wear’s continued efforts to unduly influence Thomas.  Their latest action involved the creation of a purported amendment to the Living Trust, which was signed on January 20, 2020, without notice to, or approval of, the conservator of Thomas’s estate, the probate court, or the trustees of the Living Trust. The purported amendment provides that Thomas is disinheriting his biological children and grandchildren in favor of Gloria and her daughters, Wear and Wendy.

Because of the purported 2020 amendment, White requested that Wear be restrained from financially abusing Thomas, contacting him (either directly or indirectly), being within 100 yards of him, living or being in his home, and making any change, or facilitating any changes to Thomas’s estate plan, including taking Thomas to any attorney, accountant, financial planner, or banker, or by acting (or purporting to act) as Thomas’s attorney or representative.

Wear was served with the petition, but did not appear at the hearing. The court stated,

“Because Ms. Wear is not here, she must be personally served with the order towards the equitable conditions because the allegations extend beyond financial abuse. I also checked the box that she does not—does not possess any firearms, it’s mandatory. [¶] . . . [¶] . . . This order says this does only involve elder abuse.” White’s counsel replied, “It’s not just financial abuse, it’s also—we said that as a mistake—it’s mental suffering, harassment, intimidation.” The court changed the language to state that “this case ‘does not involve solely financial abuse.’”

The EARO restrained 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.”

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.

What Is California’s Elder Abuse Act?

The overarching goal of the Elder Abuse and Dependent Adult Civil Protection Act (§ 15600 et seq.; Elder Abuse Act) is to protect vulnerable elderly adults from abuse and neglect.

Under the Elder Abuse Act, an “elder” is a California resident, 65 years of age or older. (§ 15610.27.)

“‘Abuse of an elder’” is defined as “(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] . . . [¶] (3) Financial abuse, as defined in Section 15610.30.” (§ 15610.07, subd. (a)(1), (a)(3), italics added.)

What Is “Financial Abuse” Under the Act?

“‘Financial abuse’” occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.” (§ 15610.30, subd. (a)(3), italics added.)

“Undue influence,” under the Elder Abuse Act is defined as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” (§ 15610.70, subd. (a), italics added.) In determining whether undue influence was used, the statute directs a court to consider four factors: (1) the vulnerability of the victim; (2) the influencer’s apparent authority, i.e., a fiduciary or family relationship; (3) the influencer’s actions or tactics, i.e., controlling the victim’s life, interactions with others, using affection, or initiating changes in personal or property rights, particularly via haste or secrecy; and (4) the equity of the result, i.e., any divergence from the victim’s prior intent or course of conduct or dealing, and “the appropriateness of the change in light of the length and nature of the relationship.” (§ 15610.70, subd. (a)(1)-(a)(4).)

The Entry Of an Elder Abuse Restraining Order Under California’s Elder Abuse Act

Section 15657.03 governs the issuance of protective orders under the California Elder Abuse Act and provides that:

“An order may be issued under this section, with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult.” (§ 15657.03, subd. (c), italics added.)

Wear contends the EARO is void because the superior court violated due process by “substantially amending the petition to support unrequested relief.” More specifically, she argues that White’s only basis for relief was “financial abuse” but, at the hearing, the court expanded both the allegations (to include mental suffering, harassment, and intimidation) and the nature of relief available (to include firearms restraining order) “without notice to Wear.”

In requesting the EARO, White utilized Judicial Council form EA-100. She checked the box that indicated the elder abuse was “solely financial” while also asserting that the harm or injury to Thomas (aka Tom) included “confusion and distress.” White specifically identified the harm and injuries as follows:

“Tom is being harmed by this coordinated course of financial elder abuse. Tom’s lack of capacity has been confirmed repeatedly by various doctors since the Fall of 2013 . . . . Since then, the undue influencers have preyed on Tom ‘with [Tom] falling into dementia problems’ in order ‘to affect a change in the estate plan.’ . . . Meanwhile, non-appointed counsel, at least some of whom are on a contingency fee, have forum shopped for any Court that will unwittingly issue an order saying they can represent Tom. However, ‘[t]here is substantial evidence that [Tom] has benefitted from the conservatorship of his estate[,]’ . . . [and] non-appointed counsel’s efforts to represent Tom harm him by undermining these benefits. As the Court warned over three years ago, if non-appointed counsel ‘continues to contact a person under conservatorship . . . it may start fitting under the elder abuse statute.’ . . . . [¶] Now, . . . the undue influencers decided to go ahead anyway with what they wanted the Court to allow them to do: have Tom sign an amendment to his Trust to benefit Gloria, [Wear], Wendy, and Carpenter. If the [purported] 2020 Amendment were valid, it would supplant Tom’s intent expressed in his estate plan at all times while he had capacity—for his Daughters and grandchildren to inherit his wealth (save for certain property to Gloria)—and instead disinherit them. This would result in Gloria’s and/or [Wear’s] or Wendy’s inheriting millions of dollars Tom never intended for them to receive, and would likely enrich ‘Tom’s’ contingency-fee counsel. All of this has caused Tom confusion and distress for years, and continues to do so.”

At the hearing, the superior court considered White’s declaration and the supporting exhibits, and then corrected the allegations identified in the standard judicial council form to accurately reflect the claims of mental suffering, harassment, and intimidation described in the declaration and supported by the evidence presented in the exhibits. The California appellate court determined that given the measures that Wear used to confuse Thomas (via accusations of wrongdoing against his biological daughters) and to unduly influence him (via controlling his access to specific people including the lawyer she works for as a paralegal), it was reasonable for the court to clarify the allegations of elder abuse identified in the petition if it did not expand the relief requested.

However, while the inclusion of the words mental suffering, harassment, and intimidation in the allegations did not expand the relief requested, the superior court’s inclusion of a firearms and ammunition restriction did.

Elder Abuse Act Defines Abuse Broadly, But a Court Cannot Expand The Relief Requested

The California Elder Abuse Act defines abuse broadly. Section 15657.03, subdivision (u)(1), provides that a “person subject to a protective order under this section shall not own, possess, purchase, receive, or attempt to receive a firearm or ammunition while the protective order is in effect.” However, this restriction on possession of firearms/ammunition is exempted if the protective order “issued under this section was made solely on the basis of financial abuse unaccompanied by force, threat, harassment, intimidation, or any other form of abuse.” (§ 15657.03, subd. (u)(4).)

The Court concluded:

Here, White never alleged, argued, or provided evidence that Wear used force, threats, harassment, intimidation, or any other form of abuse to make Thomas change his estate plan. Rather, the mental suffering, harassment, and intimidation that Wear is charged with involved nonphysical abuse designed to manipulate Thomas’s affection toward his daughters. Because there were no physically abusive or mentally intimidating acts against Thomas, we do not agree with the superior court’s statement that a restriction on Wear’s possession of firearms is “mandatory.” Instead, the restriction exceeds White’s allegations and was therefore “outside of the [superior] court’s jurisdiction under Code of Civil Procedure section 580.” (Julius Schifaugh IV Consulting Services, Inc. v. Avaris Capital, Inc., supra, 164 Cal.App.4th at p. 1396.) We will therefore order the court to strike the firearms and ammunition restriction.

Read about other California Elder Abuse Cases here and here.

Andrew S. Gold, Esq.

Probate & Trust Litigation

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