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Posted by on Jul 5, 2012 in Elder Abuse, Justice Served, Legislation Affecting Seniors, Protecting the Nest Egg | 0 comments

“Protected Party” Statutes Provide Extra Protection to California Seniors

California has very strong laws protecting seniors – both in the civil realm and in the criminal realm. As soon as any California resident reaches the age of 65, he or she is considered to be a “protected party”. Jaime Levine, Directing Attorney for Elder Law & Advocacy’s Senior Legal Services program explains what this means for seniors, and describes one statue that gives seniors and their advocates access to heightened damages and lower thresholds in terms of what constitutes a wrong against a victim.

One statute Levine describes as particularly effective in assisting seniors who have been taken advantage of is Civil Code §3345b. This statute establishes that any “protected party” who would be successful in a civil cause of action, is eligible to receive significantly elevated damages if a judge believes that the senior was targeted due to their vulnerability.

Says Levine, “It is a very effective tool for any attorney who represents victimized seniors. When I write a demand letter, for example, I often structure it in such a way so as to make it clear that the risk of not returning wrongfully kept property will be potentially very expensive for an opposing party who refuses to comply.”

A common scenario for ELA’s clients is that a “friend” of a senior with resources will request a loan – often with no intention of paying it back. When the “friend” defaults, the senior will seek out legal assistance. If it appears to be a case in which the senior is being victimized due to their age, ELA’s attorneys will write a letter that states that if the money is not returned within 14 days, ELA will advise its client to consider legal action to recover the full amount of the loan – a penalty equal to triple the amount owed on the loan under §3345b, plus attorney fees, and any other available damages. 

“The proposition of potentially losing a multiple of what the borrower actually owes the senior, puts enormous pressure on a possible defendant to settle immediately,” explains Levine.  For this reason, using §3345b in conjunction with the “protected party” status of seniors is very effective, as further demonstrated by ELA’s excellent success rate in recovering assets without having to resort to litigation.

This genre of statutes often brings up questions such as whether or not singling out seniors can detrimentally affect them because they will be, in some way, infantilized.  Says Levine, “This is not something that I have seen. In fact, I have experienced the opposite; seniors are empowered by laws that give them additional damages in cases where they are being victimized due to age-related vulnerability.”

Anecdotal experience is not data, of course; but Levine, over the past 11 years of his practice and time with ELA, has assisted over 10,000 clients. Elder Law & Advocacy’s Senior Legal Service Program has assisted over 40,000 seniors during that time period.

Levine states that “I cannot recall a situation in which seniors were negatively impacted by the “protected party” legislation in California.  In my experience, tough senior financial elder abuse laws serve to effectively enable private bar attorneys to achieve remarkable success without having to resort to litigation. They also allow for civil remedies to compensate for the always-overstretched resources of the criminal justice system.”

For more information on Civil Code §3345, see the text of the statute below:

§3345.  (a) This section shall apply only in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons, as those terms are defined in subdivisions (f) and (g) of Section 1761, to redress unfair or deceptive acts or practices or unfair methods of competition.    (b) Whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. Whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:
   (1) Whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons.
   (2) Whether the defendant’s conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person.
   (3) Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant’s conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct.

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