According to the American Psychological Association, “Don't let your fear of meddling in someone else's business stop you from reporting your suspicions. You could be saving someone's life. . . ”
You can help. You do not need to evict. You can help your abused resident oust the abusive caregiver immediately. You can report, help with “move-out” orders, “stay-away” orders, and other relief for your abused residents in your parks.
■ California Mobilehome Residency Law’s
Absence of Protection for Seniors Can be
Supplemented with Management Help (E.g.,
Elder Abuse and Dependent Adult Civil Protection
Act (EADACPA), Domestic Violence Prevention Act (DVPA)
The common wisdom is that evicting an abusive co-occupant, even a criminal, is fraught with difficulty and uncertainty. But the elder subject to an abusive caregiver, or other abusive household members, can seek an order to oust them by court order and without notice. The California Mobilehome Residency Law (Civil Code §§798, et seq.) (“MRL”) is no help here. The MRL is a prime enabler of elder abuse by its “hands off” policy to any occupants, and its unintended consequences welcome every predatory opportunist who cajoles his or her way into a senior’s coach. This while management is handcuffed from interceding with prevention, remedies, or even effective detection. But if we choose, we can do plenty to help the resident once we know.
Evictions take forever. Management must always wait for a 60 day notice to expire (once prepared and served) to even file suit to evict the abuser. That 60 day period enables the abuser to intimidate, terrify and coerce witnesses not to testify. Horrified, residents take shelter, lock themselves in and become prisoners in their homes. When WMA introduced legislation to evict such violent criminals, the State Senate Judiciary Committee killed the bill: not enoughreason to give management this remedy. So, the park owner’s hands remain tied for 60 days after notice of termination of possession based on outrageous abuse or even dangerous felonies (all on a “substantial annoyance” grounds) if anyone will testify as to the annoyance. But an at-risk elderly frail resident can go to court nowand obtain a “move-out” order without notice. We, as management, can educate and help.
Move-Out Order Issue NOW- Without Notice. In summary, management can assistthe abused or harassed senior and help get to court and get the abusive caregiver out NOW. Many residents cannot afford a lawyer, and often, it is the family that is responsible for the abuse. Management can do more than report. Maybe senior protective services will respond, maybe not. But court forms are designed for non-lawyers. We can help with these preprinted forms–and attend court with the resident, offer to be a witness, and also report to the police, County agencies and other family. As for courts, there are no filing fees or service costs.
As the numbers of elder victims climbs, understanding management options will become a customary “best” management practice: a sign of good quality management, and a reflection of care and concern for frail and vulnerable residents. Actively enhancing lifestyle and atmosphere has always been a hallmark of the manufactured housing industry.
We can help end pain and misery to elder abuse victims of caregivers, family and deceitful predators. There are ways to bring immediate relief to desperate, life-threatening situations which usually are never detected, and which the Mobilehome Residency Law does not allow a park owner to initially prevent.
■ The Scope of the Mushrooming Epidemic:
For Every Reported Elder Abuse Case, 24 More are Unreported.
The New York State Elder Abuse Prevalence Study found that for every case known to programs and agencies, 24 were unreported. Another reports that 1 in 10 older adults report emotional, physical, or sexual mistreatment, or neglect. Often, physical, emotional or psychological abuse accompanies financial abuse. Neglect and abandonment, for example, when the kids get a power of attorney and ability to withdraw money.
For about 40 years now, from 55+ to “all-age” parks, owners and management bring me problems that they observe or their residents bring to them. This is because of genuine concern, not out of sense of legal duty or obligation. Because they care.
■ Warning Signs and Indicators of Caregiver Elder Abuse.
Watch for the following from your residents. There are signs that elder abuse may be occurring at the hands of the caregivers residing on the space. Bear in mind that the homeowner may not be capable of telling us of the abuse. The elder may also be ashamed, fearful of retaliation or punishment, or somehow assuming some of the blame for his or her own condition.
Who are The Exploitive and Abusers? They May be Closer Than They Appear.
■ Family members, abusive children, nieces, nephews, past or present paramours, homeless
■ Caretaker/caregiver/care custodian - any person who has the care, custody, or control of or who stands in position of trust with, an elder or a dependent adult.
■ Banks, mortgage brokers, lenders
■ Insurance companies and their agents
■ Financial advisors and life agents
■ Trust mills
■ Real estate agents, title and escrow companies
■ Attorneys (and others holding themselves out as having legal expertise–tax preparers, paralegals, assistants, J.D. graduates)
■ Scams – lotteries, sweepstakes
■ Home repair, unsolicited work
■ Sweetheart scams
SUMMARY OF SIGNS OF ELDER ABUSE
Physical Abuse
■ Unexplained signs of injury such as bruises, welts, scars, broken bones or sprains
■ Report of drug overdose or apparent failure to take medication regularly
■ Signs of being restrained, such as rope marks on wrists
■ Caregiver's refusal to allow you to see the person alone
■ Physical or chemical restraints for caregiver's convenience
■ Repeated unexplained injuries
Emotional Abuse
■ Threatening, belittling, or controlling caregiver behavior that you witness
■ Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling
■ Uncommunicative and unresponsive
■ Unreasonably fearful or suspicious
■ Lack of interest in social contacts
■ Evasive or isolated
■ Unexplained or uncharacteristic changes in behavior
■ Unexplained venereal disease or genital infections
■ Torn, stained, underclothing
Financial Exploitation
■ Significant or unauthorized withdrawals from the elder's accounts
■ Sudden changes in the elder's financial condition
■ Items or cash missing from the household
■ Suspicious changes in mobilehome title, legal owner, wills, power of attorney, titles, and policies
■ Addition of names to the elder's signature card
■ Unpaid bills or lack of medical care, although the elder has enough money to pay for them
■ Financial activity the elder couldn't have done, such as an ATM withdrawal by a bedridden account holder
■ Unnecessary services, goods, or subscriptions
■ New caregiver cars in the driveway; new high frequency of deliveries
■ Evidence of inadequate care when bills are paid in full
Elders May Contribute to Abuse, Secreting of Abuse, Fail to Recognize or Report
■ May lack cognitive ability to recognize abuse and/or their rights to safety and protection
■ May be in denial; distorted view of treatment
■ May not have functioning neuro-pathways; not feeling normal pain, discomfort
■ May be incapacitated– unable to message out
■ Are often reluctant to report or prosecute
■ “Report me and I will put you in a home”
■ Afraid of removal from home
■ Fear of retribution
■ Dependence on others to assist with activities of daily living and personal care;
■ Communication or physical impairments which may limit ability to verbally or physically defend against a perpetrator and disclose abuse
■ FIVE (5) IMMEDIATE ACTIONS TO CONSIDER NOW:
★ CONTACT FIRST RESPONDERS: USUALLY, ADULT PROTECTIVE SERVICES.
■ Adult Protective Services (“APS”) can provide investigations, needs assessments, remedial and preventative social work activities, food, transportation, emergency shelter.
■ Cross report to police for criminal restraining orders.
■ State mandates that each County establish a 24/7 emergency response adult protective services program to take and investigate reports of abuse of an elder or a dependent adult. Cal. W&I Code §15763)
■ “Protective services” include investigations, needs assessments, remedial and preventive social work activities; the necessary tangible resources such as food, transportation, emergency shelter, and in-home protective care; the use of multi-disciplinary teams; and a system in which reporting of abuse can occur on a 24- hour basis. (Cal. W&I Code §15760).
Keep Adult Protective Services Honest–Insist They Do Their Jobs: Mandatory Effort to Investigate
■ When an allegation of abuse of an elder or dependent adult is reported; and,
■ The agency social worker has reason to believe an elder or dependent adult has suffered or is at substantial risk of abuse pursuant to Cal. W&I Code §15630;
■ The social worker is required to attempt to obtain consent to:
– enter and meet privately with the elder or dependent adult in the residence or dwelling in which the elder or dependent adult resides,
– without the presence of the person's caretaker, attendant, or family or household member, unless the person requests the presence of the attendant, care giver, or family member, or refuses to meet with the social worker. (Cal. W&I Code §15762)
■ APS action requires victim consent unless a Penal Code violation has been alleged. Cal. W&I Code § 15636)
■ If the victim is incapacitated and cannot legally give or deny consent to protective services, APS may initiate a petition for temporary conservatorship.
★ HELP RESIDENT GET ORDER TO IMMEDIATELY OUST THE ABUSER.
The courts make the applications, declarations and orders available as consumer friendly forms. No lawyers needed. Lawyers may be helpful in many circumstances. But do not let the absence of a lawyer stop a valid application to the court from being made.
Help the resident obtain a Move-Out Order (“Elder Abuse Restraining Order”) under the Elder Abuse and Dependent Adult Civil Protection Act. Originally, the Elder Abuse Act was designed to encourage the reporting of abuse and neglect of elders and dependent adults and continues to be a major component of the Elder Abuse Act as it stands in its current form today.
The Elder Abuse Act now permits and even requires certain heightened remedies subject to statutory criteria and limitations, including attorney's fees, punitive damages, pain and suffering damages even after the abused elder's death, and fees for a conservator who successfully brings an elder abuse claim.
■ EADACPA allows a court to issue an order protecting an elder or dependent adult from further abuse by an individual including ordering a move-out from the property. Cal. W&I Code §15657.03(c) provides that an order may be issued with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, proof of a past act or acts of abuse of the petitioning elder or dependent adult.
The evidence of past abuse is sufficient even without a particularized showing of evidence or risk that wrongful acts will continue or be repeated.
■ Does Your Resident Qualify? In order to obtain an Elder Abuse Restraining Order, or EARO, the person requesting the order:
■ Must be an elder or dependent adult;
■ Must have suffered abuse.
■ An “Elder” is one who is 65 years of age or older.
■ For a Move Out Order, Must be a Legal or equitable Owner, and Defendant cannot be sole owner.
■ Also included is the “Dependent Adult”, defined as a person between the ages of 18 and 64 who has physical or mental limitations that restrict the person's ability to carry out normal activities or to protect his or her rights.
■ If the Resident hires counsel, there is an entitlement to attorney’s fees. No reason park owner cannot supply counsel with reimbursement agreement. There is a right to recovery of attorney’s fees.
■ Does Your Resident Qualify for a Move Out Order? The court may issue a restraining order excluding the abusive caregiver (including family members) from the resident’s home on a showing of the following:
■ Proof that the resident has a right of possession.
■ Proof that the abusive caregiver assaulted or threatens to assault the resident or other named family or household member including a conservator.
■ Proof that physical or emotional harm would otherwise result to the person to be protected.
■ After the restraining order is issued (without notice), the court may issue, after notice and hearing, an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner.
■ An order excluding the abusive caregiver from the dwelling is permitted, except not if legal or equitable title to, or lease of, the residence is in the sole name of the abuser, or is in the name of the party to be excluded and any other party besides the petitioner. Cal. W&I Code §15657.03 (b) (3) (B).
The courts provide pre-printed forms. This makes it easier to go to court and get the orders. The courts are familiar with the forms and often provide relief with the right language. Of course, management can assist in the preparation of the papers, if the resident is unable to do so in a winning fashion.
The law states that (Cal. W&I Code §15657.03(d)) on filing a petition for protective order, “the petitioner may obtain a temporary restraining order.” The law says that an injunction is available without notice if:
■ It appears that great or irreparable injury will result before the matter can be heard on notice.
■ The resident or his or her attorney certifies one of the following:
– That within a reasonable time prior to the application the applicant informed the opposing party or the opposing party's attorney at what time and where the application would be made.
– That the applicant in good faith attempted but was unable to inform the opposing party and the opposing party's attorney, specifying the efforts made to contact them.
– That for reasons specified the applicant should not be required to so inform the opposing party or the opposing party's attorney.
Note, that the court may grant a an elder abuse restraining order on a preponderance of the evidence.
★ HELPKICK-OUT THE ABUSER!!
(DOMESTIC VIOLENCE PREVENTION ACT– DVPA).
Your resident may seek a DVPA “move-out” order to immediately oust the abusive, dangerous or harassing caregiver. The “kick out” order forces an ouster of an abusive caregiver. An order can be issued to restrain contact either directly or indirectly:
■ By mail or otherwise,
■ Coming within a specified distance of, or
■ Disturbing the peace of the other party. Cal.Family Code §6320, 6211.
The law provides that a court may issue an order, without notice, to exclude a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence. “Domestic violence” is abuse perpetrated against spouses, co-habitants, children and blood relatives within the second degree. But the order may issues regardless of the owner of the property.
Types of “domestic violence protective orders” includes an order enjoining specific acts of abuse (Cal.Family Code §6320), excluding a person from a dwelling (Cal.Family Code §6321) and enjoining other specified behavior. (Cal.Family Code §6322).
■ For an order excluding a party from a dwelling, the following proof is required:
-- The resident has a right to possess the mobilehome;
-- The resident’s spouse or significant other has assaulted or threatened to assault the abused resident, child, or any person that is under the resident’s care, custody, and control;
-- If the exclusion order were not granted, physical OR emotional harm would otherwise result.
While title ownership is not required, still, the relationship to the victim is a requirement must be established. The resident must reasonably show that if the order were not granted, that physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party. (Cal.Family Code §6321)
■ What is “Abuse”within the meaning of the DVPA? (Cal.Family Code §§6203 (a), (b), (c), (d).)
-- Intentionally or recklessly causing or attempting to cause bodily injury; or
-- Sexual assault; or
-- “Reasonable apprehension” of imminent serious bodily injury to person or
another; or
-- Engaging in any behavior that has been or could be enjoined
(Cal. Family Code §6320).
Thus, the requisite “abuse” need not be actual infliction of physical injury or assault.
★ HELPGET A HARASSMENT INJUNCTION!!
CAL. CODE OF CIVIL PROCEDURE §527.6
Civil injunctive scheme has a separate procedure to prevent civil harassment to prevent unlawful violence, threats of violence and suffering of emotional distress. (Cal. Code of Civil Procedure §527.6).
■ Court forms are available: ttp://www.courts.ca.gov/documents/ch100.pdf
■ Civil injunction requires demonstrating imminent irreparable harm, probability of success on the merits and a balancing of equities. An elder who has suffered financial abuse may seek a protective order, including a TRO:
-- Enjoining someone from abusing, intimidating, molesting, attacking, stalking, threatening, sexually assaulting, battering, or harassing the petitioning elder,
-- Preventing the destruction of the elder’s personal property, and
-- Excluding someone from the elder’s home.
■ Family members residing in the home with the elder and caregivers can be added as protected parties to receive the full protection of the temporary restraining order.
★ HELPARREST A “SHORT TERM” ABUSER, GET JUDGMENT FOR POSSESSION FOR LONGER TERM ABUSER (CAL. CIVIL CODE §1946.5)
■ If there is a single lodger in the home: Your resident can seek to oust the abusive occupant, boarder, lodger or caregiver. Cal. Civil Code §1946.5 applies, only, if requirements are satisfied.
-- The mobilehome must also be occupied by the resident;
-- The resident retains a right of access to all areas of the mobilehome and have overall control;
-- The abusive person is the sole, other, occupant, and
-- The abusive person must have contracted either for room, or room and board.
■ If all of the above conditions apply, the law prescribes an expedited procedure to bring about the removal of the lodger.The resident may terminate tenancy by serving written Notice of termination. The length of time must be equal to the tenancy period (e.g., 30 days for a month-to-month). Note the occupant has no tenancy rights and is not subject to the MRL.
■ At the expiration of the required Notice period, the resident must file an action for unlawful detainer. For short term occupants, the occupant can also be arrested if required conditions are met. A private person's arrest is authorized, on condition, for violation of Penal Code §602.3 (an infraction).
■ In summary, if the situation involves a single occupant, the resident can make a private person arrest for Cal. Penal Code §602.3 in lieu of proceeding through the eviction process. Penal Code§602.3 states:
(a) A lodger who is subject to Section 1946.5 of the Civil Code and who remains on the premises of an owner-occupied dwelling unit after receipt of a Notice terminating the hiring, and expiration of the Notice period, provided in Section 1946.5 of the Civil Code is guilty of an infraction and may, pursuant to Section 837, be arrested for the offense by the owner, or in the event the owner is represented by a court-appointed conservator, executor, or administrator, by the owner's representative. Notwithstanding Section 853.5, the requirement of that section for release upon written promise to appear Shall not preclude an assisting peace officer from removing the Person from the owner-occupied dwelling unit.
(b) The removal of a lodger from a dwelling unit by the owner pursuant to subdivision (a) is not a forcible entry under the provisions of Section 1159 of the Code of Civil Procedure and Shall not be a basis for civil liability under that section.
* * *
(f) This section applies only to owner-occupied dwellings where a single lodger resides. Nothing in this section shall be construed to determine or affect in any way the rights of persons residing as lodgers in an owner-occupied dwelling where more than one lodger resides.
■ No “Good Samaritan” standing: Management is not entitled to be a party to assist the resident. But we may be of assistance and help save a life.
There is no “Good Samaritan” standing to help an abused senior escape elder abuse. A park owner cannot assert claims directly for residents. Management can report claims and keep up the pressure to insist on positive and prompt action. As revealed by various cases of recent elder abuse, not even the agencies touting their dedication to ending elder abuse take any action in very clear cases.
There are limits as to who may have standing to bring an elder abuse action on behalf of an alleged victim during the elder’s lifetime.
The EADACPA supports third-party standing for certain representativesto bring an elder abuse claim on behalf of an abused elder while he or she is still alive. Such as conservators. But not many others, including concerned family members. There is also no “Good Samaritan” standing, which would allow concerned persons to intercede and seek relief.
★ YOUR RESIDENT HAS THE RIGHT TO DEMAND RETURN OF PROPERTY
WRONGFULLY TAKEN–ITSELF AN ACT OF ELDER ABUSE1
■ The elder or a “representative of the elder” may demand the return of real or personal property from a person or entity who took, secreted, appropriated, obtained, or retained, or assisted in those acts when the elder or dependent adult lacked capacity or was of unsound mind.
■ The failure to return the property on demand gives rise to a separate claim for financial elder abuse, even if the original taking was not financial elder abuse within the meaning of EADACPA.
★ DEFINITIONS, LAWS, REGULATIONS, FURTHER INFORMATION
■ What is Elder Abuse??
Cal. W&I Code§15600 et seq.defines elder abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment resulting in physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. This definition applies to elders and dependent adults. Cal.W&I Code§15610.63:
As defined by Penal Code, “physical abuse” includes:
■ Assault, battery, sexual assault, battery or rape,
■ Prolonged or continual deprivation of food or water,
■ Use of physical or chemical restraints for punishment,
convenience, or without or beyond the scope of the doctor's order.
■ What Is “Neglect” And “Self-Neglect”?
“Neglect”means either of the following:
■ The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
■ The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
■ Neglect includes, but is not limited to, all of the following:
■ Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
■ Failure to provide medical care for physical and mental health needs.
■ Failure to protect from health and safety hazards.
■ Failure to prevent malnutrition or dehydration.
■ Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4) for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.
■ What is “Isolation” ?
“Isolation”means any of the following:
■ Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.
■ Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.
■ False imprisonment, as defined in Section 236 of the Penal Code.
■ Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.
■ What is “Financial Elder Abuse”?
“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.
■ 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.
■ 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.
■ A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.
■ A person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.
■ Watch for “Powers of Attorney” as Another Form of Elder Abuse
Powers of attorney are a frequent tool of abuse. These are low cost, easy to execute, can grant very broad powers and available on the internet without the need for legal counsel. The “POA” often grants the agent the same broad general powers of a Trustee but, unlike revocable trusts, generally lack provisions defining duties owed by the agent to the principal. Because general POAs are not tied to particular assets, there may be multiple conflicting instruments empowering multiple agents.
■ Care-Giver Cannot Take from Estate of Deceased Resident
California law prohibits bequests to caregivers–they are barred from receiving anything from a homeowner. A caregiver cannot move in with the hope of convincing residents to give them property after death. Cal. Probate Code §§21360 -21392. A caregiver, or "care custodian," means any ". . . person providing health services or social services. . . " Cal. W&I Code §15610.17(y). Fraud or undue influence is presumed if a bequest is made. Cal. Probate Code §21380(a)(3). The bequest is invalid.
Caregivers Can Steal Our Residents Blind (and do). Do they try to be signed on title for a "quick flip" of the mobilehome? Nothing stops that. And management must approve the buyer and not interfere with a sale.
■ Conclusion: Make A Difference
The expansive rights of “care-givers” and “companions” is a product of a pro-mobilehome-resident legislature that actively prevents park owners from ejecting even serious criminals. Moreover, the potential for resident abuse is drowned out by claims that owners will abuse such a remedy. So, the needy continue to suffer for sake of appeasement of tenants, who oppose anythinga park owner proposes. Usually, we do not evict without resident support.
Plainly, the probability of resident abuse increases as the numbers of retirees grows in leaps and bounds. These people live in your parks. The additional occupant has an open invitation for interloping, domineering, and controlling the frail resident. All these visitors–usually abusive family--are empowered to quash the free will of your frail resident, take the check book and lock them away. And the MRL provides no management rights to approve, affect or detect elder abuse. Management has no ability to intervene even if requested by a resident.
Watch for signs of elder abuse. Report it. You could be saving someone's life. Remember: The resident has five (5) options which can be pursued as soon as discovered.
Management’s powers of observation are therefore needed to report and persistently complain if needed. When objective evidence tells your instincts that something is “just not right,” report it and ask questions. Legally, is there a duty to do so? Absolutely not. But that is not us. We are in business to serve.
1 Cal. W&I Code§15657.6.
