Elder Abuse Restraining Order
The law firm of Restraining Order Attorney specializes in all types of restraining orders and their related cases. This includes Elder Abuse Restraining Orders, which are a specific type of court order and require knowledgeable and experienced counselors to help you with your case.
What is a Restraining Order?
Under California civil and criminal law, a victim of sexual or physical abuse can be protected by various types of restraining orders. These are court-ordered directives that forbid the defendant from engaging in various activities for varying lengths of time in order to protect the alleged victims. California policy also considers certain segments of the population to be “vulnerable”, meaning they are afforded extra protection under these laws.
The alleged victim must approach the court and petition for the restraining order. There is a series of hearings without a jury present. The judge then issues a restraining order, specifying what kinds of attendant behavior that are forbidden. If the defendant disobeys these commands, then a charge of “violating a restraining or protective order” may be pursued against them. This is also known as a violation of California Penal Code 273.6 PC.
What Is Elder and Dependent Adult Abuse?
Elders and dependent adults fall under the category of “vulnerable” populations in California. In the system of California law, an elder is defined as anyone who is over sixty-five (65) years old. They are also referred to as “seniors” in the legal literature. Elders are susceptible to a litany of physical and mental deficiencies that require more medication and medical treatment than younger adults. A dependent adult is anyone who is eighteen (18) to sixty-four (64) years old and requires care due to some mental or physical impairment that is severe enough to not allow them to adequately care for or protect themselves.
These two categories are treated as vulnerable populations and are sometimes referred to as “vulnerable adults” in the legal literature. An elder abuse restraining order is virtually always ordered in cases where the elder or dependent adult have been victims of the crime of elder and dependent adult abuse, otherwise known as section 368 PC of the California Penal Code. This is a serious crime and in certain cases, it can be prosecuted as a felony.
Elder and dependent adult abuse will result in the imposition of a restraining order. The abuse may consist of:
Emotional abuse, including any and all actions which cause any kind of mental anguish by harassing and/or threatening the elder or dependent adult. This type of menacing behavior will be explicitly forbidden in the restraining order given by the judge and can include willfully isolating the victim from other people, not allowing them to receive any contact from the outside world (in the case of caretakers), and using threatening language and/or gestures to make the victim fearful or agitated.
Physical abuse, including any and all harmful or painful actions. This includes all forms of sexual assault and physical restraint, including the use of medicines or drugs to restrain the elder or dependent adult. Because of the nature of elders’ and dependent adults’ physical and/or mental disabilities (which may cause them to be agitated or confused), caretakers will frequently engage in physical abuse to try and control the victims. Physical abuse is also frequently used to steal from elders or dependent adults.
Financial abuse, including any and all instances where the defendant allegedly commits some type of criminal fraud in order to exploit the victim. This includes all assets, pieces of property, and/or funds of the dependent adult or elder. These vulnerable portions of the population are frequently the recipients of all kinds of payments or benefits, including disability, pension, veterans’ benefits, and social security. If an elder is suffering from senility or dementia or if the dependent adult has grave mental disabilities, then they are usually incapable of handling these types of financial matters. Family members and caretakers usually have comprehensive access to their bank accounts, thereby allowing them to exploit the situation.
Neglect, including any and all instances in which the caregiver or relevant family member fails in their duties of taking care of the vulnerable adult. Elders and dependent adults need to be fed, clothed, and sheltered. They also need their personal hygiene looked after. This also includes protection from dangerous and/or hazardous situations. If these fundamental responsibilities are not met, then the consequences may include grave injury or even death in severe cases. The judge will take into consideration if the defendant was “criminally negligent” when ruling on imposing a restraining order.
Abandonment, including any and all instances in which the caregiver abandons the vulnerable adult. Even if the abandonment does not result in actual injury or death, the very act of doing so puts the vulnerable adult at risk and constitutes elder and dependent abuse under California law. Furthermore, both neglect and abandonment are more passive instances of abuse, wherein the defendant did not actively abuse the vulnerable adult, but will still result in a violation of the law and a restraining order being handed down.
If the person requesting the restraining order is able to reasonably prove to the presiding judge that any or all of the above types of abuse are occurring, then a restraining order will be issued. An elder abuse restraining order is a civil proceeding, whereby a private citizen is asking a judge to tell another person to cease any and all abusive behavior. It only becomes a criminal matter when the provisions of the restraining order are violated.
Who Can Request An Elder Abuse Restraining Order?
A restraining order is asked for by the actual victim of the abuse and/or harassment. This process of applying for a restraining order is also referred to as “petitioning” the court. However, in the case of elder and dependent adult abuse, there are certain caveats that are specific to this particular crime. That is because as vulnerable adults, they may not always be able to accurately perceive that they are suffering from abuse and may not be able to act in their own best interest or effectively seek protection from the court.
Therefore, not only can the elder or dependent adult request the restraining order, but other entities acting on behalf of the victim may also petition for a restraining order. In California law, there are provisions that allow what is known as a conservator or guardian to be responsible for making decisions about provisions of care and/or living arrangements of the vulnerable adult. In this legal arrangement, known formally as guardianship or conservatorship, the vulnerable adult being protected or cared for is referred to as a ward. The conservator (or guardian) can apply for a restraining order on behalf of the ward (elder or dependent adult).
In cases of financial abuse, California law also allows for trustees to petition for a restraining order on behalf of the victims. Legally, trustees are the persons responsible for controlling and managing a trust property and protecting its interests for what is known as the beneficiaries. Trust in this context is a legal construction that establishes how a person’s property and assets will be distributed after death but is already in effect while the person is still living. It is a kind of device to protect financial assets, particularly those of someone who is less able to make the best financial decisions. That means that the trustee is the person legally appointed to manage the trust and the financial interests of the vulnerable person in question and can request a restraining order if they suspect that financial abuse and/or exploitation is happening.
A person known as an attorney-in-fact may also apply for a restraining order. An attorney-in-fact is someone who is authorized to make business decisions and oversee financial transactions on behalf of their client (in this case the elder or dependent adult). This requires that a power of attorney document be signed in accordance with California law, thereby allowing the attorney-in-fact to act on behalf of the vulnerable adult.
A guardian ad litem may also pursue a restraining order on behalf of the vulnerable adult. If there is already a lawsuit or criminal case in progress regarding elder abuse, then the court may appoint what is known as a guardian ad litem for the vulnerable adult. This is done when the judge has determined that the vulnerable adult is incapable of adequately representing their own best interests. This is essentially the same as an attorney-in-fact, except that an outside entity (the judge) gave them the responsibility rather than the vulnerable adult themselves.
Finally, any other person with the proper legal authorization may act on behalf of the vulnerable adult. This is usually a caretaker or caregiver. The legal definition of a caregiver is someone over the age of eighteen (18) whose job it is to provide care for a vulnerable adult. They are directly responsible for protecting and caring for the vulnerable adult on a day-to-day basis. The health and survival of the vulnerable adult in question depends on the caregiver fulfilling their duties. However, they are frequently the subject of the restraining order as it is not uncommon that caregivers are the ones perpetuating the abuse against the vulnerable adult.
How Will A Judge Determine Whether To Issue A Restraining Order?
The process of determining if a restraining order will be imposed is independent from any criminal charges that may be pending against the defendant. This is because a restraining order is a civil matter as it is requested by another private party, not the prosecuting agency (or law enforcement in general). However, the criminal charges (pursued by the District Attorney) and the imposition of an elder or dependent adult restraining order (pursued by the victim and/or persons acting on behalf of the victim) may run concurrently and even interact or influence one another. It is important to have a skilled attorney appear before the judge for any hearings on whether or not to have a restraining order imposed on the defendant.
The judge will consider three primary elements in determining if the restraining order shall be imposed or not:
If the defendant willfully meant to inflict mental and/or physical pain or distress as well as willfully meant to commit financial abuse and/or exploitation. This also includes instances when the defendant willfully harassed or threatened the vulnerable adult. In this context, “willfully” signifies that the defendant made decisions that were deliberate and when the defendant was of sound mind. This also includes instances of when the defendant allowed another person to commit said actions or if by criminal negligence allowed a situation to arise whereby such abuse could occur. In other words, the defendant may have also acted passively in the abuse to trigger a restraining order by the judge.
Because the primary goal of a restraining order is to protect a victim from continuing or future abuse, the judge will consider if the results of the defendant’s actions created circumstances that could have resulted in great bodily injury or death as well as fear and/or agitation in the vulnerable adult. The very act of causing sustained fear or distress in the victim is usually enough to trigger the judge to issue a restraining order.
If the defendant knew that the victim was a vulnerable adult. This would be defined either as an elder (someone over 65 years old) or a dependent adult (someone 18-64 years old who requires constant and intensive care from another adult). In order for an elder abuse and dependent adult restraining order to be specifically issued, then the judge can consider if the defendant knowingly and willfully took advantage of the vulnerable adult.
Once the judge has deliberated over these three criteria, they will then decide whether or not to issue the restraining order. Because a jury is not required in such determinations, it is only up to the judge to decide such matters. Furthermore, the burden of proof is relatively lower than in a criminal court. When the district attorney is pursuing criminal charges against a defendant, they must prove to a jury of the defendant’s peers that the defendant is guilty of all charges “beyond a reasonable doubt”. In the case of a restraining order hearing, the judge need only determine whether there is sufficient reason to believe the petitioner (the elder or dependent adult) needs protection from abuse. They can also determine how long the restraining order is to last.
How Does An Elder Abuse Restraining Order Work?
California has three basic timelines for elder abuse restraining orders. The first is an Emergency Protective Order, frequently abbreviated to EPO, which a police officer requests from the judge. They do this on behalf of the victim, usually when they have arrived at the scene of the crime directly after the abuse has transpired. An EPO is good for one (1) week and bars the defendant from having any contact with the victim during that period of time.
Then the vulnerable adult, or someone acting on their behalf, can petition the court for a Temporary Restraining Order (known as a TRO). The vulnerable adult must declare to the judge that they have suffered abuse and/or harassment and are in fear of suffering further abuse and/or harassment, and the judge can issue a TRO that lasts up to a month. The burden of proof is generally quite low; therefore the victim must only establish that there is a pattern of repetitive behavior that the defendant engages in that causes harm or fear for the victim.
Finally, a hearing is scheduled to determine if a Permanent Restraining Order (also known as a PRO) will be handed down by the judge. The hearing is scheduled immediately upon the expiration of the TRO and is essentially a trial, minus the jury, to hear both the defendant’s and victim’s sides of the story. It is not required to have a lawyer, but any defendant wishing to present their case at a PRO hearing would be better equipped if they retained skilled legal counsel. Because it is not a criminal trial, the court is not required to provide free legal counsel to the defendant. This is the first, and essentially the last, chance that the defendant has to make their case. If a PRO is issued, it may last up to five (5) years.
The PRO hearing allows for a variety of materials to be presented before the judge. These may include witnesses testifying (or their written statements made under oath), photographs, medical records, police reports, and any threatening correspondence allegedly transmitted by the defendant. A skilled counselor could effectively argue around or against any and/or all these pieces of evidence.
Furthermore, vulnerable adults are demonstrably more prone to making false accusations than other adults. This is because they suffer from various mental disabilities, such as dementia, senility, or legal mental incompetence that could render their testimony suspect. Additionally, in cases where the defendant is accused of some kind of financial malfeasance, then the defense could argue that members of the vulnerable adult’s family is simply using the restraining order to smear the defendant’s reputation in order to gain control of finances or assets.