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Articles by Legal Department Staff

The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.

Understanding Financial Abuse

A  Closer Look at the Elder Abuse and Dependent Adult Civil Protection Act.

Understanding "Financial Abuse": A Closer Look at the Elder Abuse and Dependent Adult Civil Protection Act

The Therapist
July/August 2014
Michael Griffin, JD, LCSW (CAMFT Staff Attorney)
Reviewed November, 2022 by Luke M. Martin, MBA, JD (CAMFT Staff Attorney)


All licensees, associates, and trainees are expected to be familiar with their legal obligations as mandated reporters of elder and dependent adult abuse. 1 The importance of this issue is magnified by the likelihood that therapists will encounter elder or dependent adult abuse with increasing frequency in the coming years. It’s a matter of demographics: Between 2010 and 2060, the population of California residents aged 60 and above is expected to increase by 166 percent. For individuals aged 85 and above, the anticipated increase is 489 percent during the same time period. 3

The Elder Abuse and Dependent Adult Civil Protection Act
The California law that describes the different types of elder and dependent adult abuse, and spells-out the reporting requirements and procedures for mandated reporters, is known as the Elder Abuse and Dependent Adult Civil Protection Act, (“Act”).4 This law identifies seven specific categories of elder and dependent adult abuse: physical, abandonment, abduction, isolation, financial, neglect, and the failure of a care custodian to provide goods or services that are necessary to avoid physical pain or mental suffering. 5

A number of articles in the Therapist magazine provide broad overviews of the different categories of elder and dependent adult abuse, and the related reporting procedures.6 The purpose of this article is to provide therapists with a closer look at the topic of financial abuse, and to discuss the impact of AB 140, which amended the criterion for determining “undue influence” under the Act.7

Mandated reporters, who have known of, or reasonably suspect elder or dependent adult abuse, who are acting in their professional capacities or scope of employment, must make a report by telephone or through a confidential Internet reporting tool, immediately, or as soon as possible. When the abuse is reported by telephone, a written report is also required within two working days.8

Each county has an Adult Protective Services (“APS”) agency to help elder adults (65 years and older) and dependent adults (18-64 who are disabled), when these adults are unable to meet their own needs, or are victims of abuse, neglect or exploitation. County APS agencies investigate reports of abuse of elders and dependent adults who live in private homes and hotels or hospitals and health clinics when the abuser is not a staff member. The California Department of Health Services Department of Licensing handles cases of abuse by a member of a hospital or health clinic. Reports of abuse that occur in a nursing home, a board and care home, a residential facility for the elderly, or at a long-term care facility are the responsibility of the Ombudsman's office, which is administered by the California Department of Aging.9

Financial abuse
As can be seen in the following description, financial abuse requires some action by an individual, which is intended to take the property of an elder or dependent adult, where the person knew, or should have known, that it was wrongful to do so, and that such action was likely to be harmful.

According to section 15610.30 of the Health and Safety Code, the financial abuse of an elder or dependent adult occurs when a person or entity does any of the following:

Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. 10

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.11

(3) Takes, 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. 12

The meaning of “undue influence”
Effective January 1, 2014, as the result of AB 140, the meaning of undue influence is provided by section 15610.70 of the Welfare and Institutions Code. Prior to the change, undue influence was based upon section 1575 of the Civil Code. It is difficult to see why the change took so long. Originally intended for use in civil contract disputes, this section of the Civil Code was actually written in 1872.15

AB 140 significantly expanded and clarified the meaning of undue influence, restating it as: “Excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.”16 The new definition intended to modernize and clarify the criterion used in determining whether excessive persuasion was in fact, exploitive.17

Section 15610.70 of the Welfare and Institutions Code provides a list of several criteria for use in determining whether an elder or dependent adult was subjected to undue influence.18  Although some providers may feel burdened, or anxious about the idea of having to apply such a detailed list, they may ultimately discover that the specificity, and clarity of each of the criterion is actually a benefit, rather than a hindrance, in helping them to determine whether or not undue influence may have occurred.

The law does not state that a minimum number of criteria must be met for undue influence to exist. It does require, however, that all of the following criteria be considered in determining whether a particular result was produced by undue influence:

(1) (1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship. Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

An important exception for psychotherapists
Providers should be aware of the reporting exception that applies to psychotherapists, and other specified mandated reporters. A psychotherapist is not required to report elder or dependent adult abuse if all of the following conditions are met:19

(i) The psychotherapist has been told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect; 20

(ii) The psychotherapist is not aware of any independent evidence that corroborates the statement that the abuse has occurred; 21

(iii) The elder or dependent adult has been diagnosed with a mental illness or dementia, or is the subject of a court-ordered conservatorship because of a mental illness or dementia;22 and

(iv) In the exercise of clinical judgment, the psychotherapist reasonably believes that the abuse did not occur. 23

The value of consultation
There are times when every therapist can benefit from consultation, whether it be with one of his or her peers, by making a call to his or her professional association, or contacting some other trusted resource. As with other issues, members of CAMFT are welcome to contact one of our legal staff for consultation regarding the Elder and Dependent Adult reporting law, or other legal and ethical issues which arise in clinical practice.


Endnotes

1 W&I Code, §15630

2 W&I Code, §15630

3 Statistical/demographic data provided by California Department of Aging is available online (last visited November 2nd, 2020) at: http://www.aging.ca.gov/Data_and_Reports/Facts_About_California's_Elderly/

4 W&I Code, §§15600‐15675.

5 W&I Code, §§15600‐15675

6 See, Jensen, David, G., “Lost in the Tule Fog of Elder and Dependent Adult Abuse Reporting,” The Therapist, March/April, 2013; Jensen, David, G., “The Fundamentals of Reporting Elder & Dependent Adult Abuse, The Therapist, March/April, 2006

7 10. CA AB 140, 2013‐2014, (2013, October 10)

8 W&I Code, §15630(b)(1) 

9 California Dept. of Social Services, Adult Protective Services, www.cdss.ca.gov/

10 W&I Code, §15610.30 (a)(1)

11 W&I Code, §15610.30 (a)(2)

12 W&I Code, §15610.30 (a)(3)(emphasis added)

15 Calif. Civ. Code, §1575

16 AB 140, Supra. Senate Floor Analyses, AB 140, Dickinson, (D), et al.

17 Senate Floor Analyses, AB 140, Dickinson, (D), et al.

18 W&I Code, §15610.70

19 W&I Code, §15630(b)(3)(A) This exception applies to a mandated reporter who is a physician, a registered nurse, or a psychotherapist, as defined in Section 1010 of the Evidence Code.

20 W&I Code, §15630(b)(3)(A)(i)

21 W&I Code, §15630(b)(3)(A)(ii)

22 W&I Code, §15630(b)(3)(A)(iii)

23 W&I Code, §15630(b)(3)(A)(iv)