Trusts and Estates
Legislation Alert: Expansion of Elder Abuse Restraining Order Statute
By Jeffrey S. Galvin and Jaime B. Herren
Assembly Bill 1243, passed in 2021, takes effect on January 1, 2023. The bill expands Welfare and Institutions Code section 15657.03, which allows California courts to issue restraining orders to protect elder and dependent adults from abuse.
Anti-Isolation Restraining Orders
Welfare and Institutions Code section 15657.03, as of 2023, authorizes anti-isolation restraining orders. The orders are issued to protect elders and dependent adults from unwanted isolation.
Use new Judicial Council Form EA-300 to seek an anti-isolation order.
Anyone with a “personal, preexisting relationship with the elder” qualifies as an “interested party” who may seek an anti-isolation order. Such a relationship may be shown by a description of past involvement with the elder, time spent together, and any other proof that the individual spent time with the elder. Hence, friends and neighbors may qualify.
The orders may not be sought when the elder resides in a health, residential or long-term care facility, as those terms are defined in the statute.
A judge may only issue an anti-isolation order after notice and hearing. The petitioner (interested party) must show that the: (1) respondent’s past act or acts of isolation of the elder repeatedly prevented contact with the interested party; (2) elder expressly desires contact with the interested party; and (3) respondent’s isolation of the elder from the interested party was not in response to an actual or threatened abuse of the elder by the interested party or the elder’s desire not to have contact with the interested party.
An anti-isolation order may specify the enjoined actions. For example, the respondent may be barred from preventing in-person, online and/or telephone contact between the petitioner and the elder.
Once issued, the restraining order may last for up to five years, and it may be renewed thereafter.
The prevailing party, either the petitioner or the respondent, may be awarded legal fees in the court’s discretion.
“Specific Debt” Orders
As of 2023, Welfare and Institutions Code section 15657.03 for the first time permits California courts to find, after notice and hearing, that one or more “specific debts” were incurred as the result of financial abuse of an elder or dependent adult.
Use amended Judicial Council Form EA-100 to seek such a specific debt finding.
Specific debts include, without limitation, debts incurred as a result of identity theft and mail theft of an elder or dependent adult, as detailed in Penal Code section 530.5.
Section 15657.03(b)(5)(D) specifies, however, that a petitioner who obtains a “specific debt” finding is not entitled to remedies other than those actually set forth in section 15657.03. Hence, the finding apparently does not entitle the petitioner to obtain an award of damages against the respondent. Instead, the petitioner must bring other claims for monetary relief.