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iLaw Dictionary
California
Law Dictionary
Elder Abuse-Standing
(Estate of Lowrie)

Elder Abuse-Tort-Standing
(Estate of Lowrie)

DISCUSSION

A. Lynelle has standing to pursue this elder abuse case.

Sheldon asserts that Lynelle has no standing to bring this elder abuse case. This argument ignores the legislative purpose of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq., the Elder Abuse Act) and Probate Code section 259. If accepted, this argument would create opportunities for abusers to benefit from their wrongful conduct.

1. The Elder Abuse Act and the Standing Provision, Welfare and Institutions Code section 15657.3, subdivision (d).

“The purpose of the [Elder Abuse Act, (Welf. & Inst. Code, § 15600 et seq.)] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33; Buhai & Gilliam, Honor Thy Mother and Father: Preventing Elder Abuse Through Education and Litigation (2003) 36 Loyola L.A. L.Rev. 565, 569.)

Originally, the Elder Abuse Act was designed to encourage the reporting of abuse and neglect of elders and dependent adults. (Delaney v. Baker, supra, 20 Cal.4th at p. 33; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, __ [11 Cal.Rptr.3d 222, 226]; ARA Living Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1559 (ARA Living Centers).) It also provided for criminal prosecution of such cases. (E.g., Pen. Code, § 368.) However, elder abuse lawsuits were seldom pursued as few attorneys would handle the cases, partially because survival statutes did not permit compensation if the elder died before a verdict was rendered.[3] Then, the Legislature shifted the focus. The statutory scheme was modified to provide incentives for private, civil enforcement through lawsuits against elder abuse and neglect. (Covenant Care, Inc. v. Superior Court, supra, at p. __ [11 Cal.Rptr.3d at pp. 226, 231]; Delaney v. Baker, supra, at p. 33; ARA Living Centers, supra, at p. 1560.)

Subject to statutory criteria and limitations, the statutory scheme now permits heightened remedies. These include pain and suffering damages even after the abused elder dies, punitive damages, and attorney fee awards. (Welf. & Inst. Code, § 15657; Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. __ [11 Cal.Rptr.3d at pp. 226-227]; Delaney v. Baker, supra, 20 Cal.4th at pp. 33, 35; Moskowitz, Golden Age in the Golden State: Contemporary Legal Developments in Elder Abuse and Neglect (2003) 36 Loyola L.A. L.Rev. 589, 605-606.)[4]

Welfare and Institutions Code section 15657.3, subdivision (d), delineates who has standing to bring an elder abuse lawsuit after the death of an elder or dependent adult. Welfare and Institutions Code section 15657.3, subdivision (d) states: “Upon petition, after the death of the elder or dependent adult, the right to maintain an action shall be transferred to the personal representative of the decedent, or if none, to the person or persons entitled to succeed to the decedent’s estate.”

The Legislature did not define the operative words in Welfare and Institutions Code section 15657.3, subdivision (d). However, when Welfare and Institutions Code section 15657.3 was added to the statutory scheme (Stats. 1991, ch. 774 (Sen. Bill No. 679), § 3) the Legislature specified that the Elder Abuse Act was intended to “enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” (Welf. & Inst. Code, § 15600, subd. (j), italics added; added by Stats.1991, ch. 774 (Sen. Bill No. 679), § 2.) This statement of legislative intent suggests the Legislature intended a broad definition of standing in the context of elder abuse cases.[5]

2. Lynelle has standing.

Sheldon argues Lynelle does not have standing because: (1) under the trust he is the named trustee and thus, decedent’s “personal representative” (citing Prob. Code, § 58)[6]; and, (2) Lynelle is not a person “entitled to succeed to the decedent’s estate” because she does not succeed to decedent’s estate under the laws of intestate succession (Prob. Code, § 6402)[7], but rather, Lynelle is simply a beneficiary who was bequeathed $10,000. Sheldon points to provisions of the survival statutes (Code Civ. Proc., § 377.30)[8] and the wrongful death statutes (Code Civ. Proc., § 377.60.),[9] as well as the definition of “decedent’s successor in interest” prescribed for those purposes. (Code Civ. Proc., § 377.11.)[10] These statutes use language similar to that in Welfare and Institutions Code section 15657.3. According to Sheldon, only Norma and Alan, decedent’s other surviving children, have standing to bring this elder abuse case. (See fn. 7.) However, establishing a uniform definition of terms throughout the codified laws is less important than effectuating the purpose of the legislative scheme. (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. __ [11 Cal.Rptr.3d at p. 229].)

Sheldon’s argument ignores Probate Code section 259 and the purpose of the Elder Abuse Act.

Probate Code section 259 is a forfeiture statute that deems abusers of elders or dependent adults to have predeceased a deceased, abused elder or dependent adult.[11]

The purpose of Probate Code section 259 was to deter the abuse of elders by prohibiting abusers from benefiting from the abuse. (Note, Extinguishing Inheritance Rights: California Breaks New Ground in the Fight Against Elder Abuse But Fails to Build an Effective Foundation (2001) 2 Hastings L.J. 537, 569; Civ. Code, § 3517 [“No one can take advantage of his own wrong.”]; cf. Prob. Code, § 250 [killer of decedent not entitled to benefit under decedent’s will or trust].) Probate Code section 259 was enacted, like other forfeiture statutes, to produce a fair and just result. By enacting this statute, the Legislature hoped that the threat of extinguishing inheritance rights, and the financial incentive to others to report abuse, would deter abuse. (Moskowitz, Golden Age in the Golden State: Contemporary Legal Developments in Elder Abuse and Neglect, supra, 36 Loyola L.A. L.Rev. at pp. 653-656; Note, supra, 2 Hastings L.J. at pp. 572-573.)

According to decedent’s estate plan, if Sheldon predeceased decedent, Lynelle would become the successor trustee and the successor beneficiary to the remainder. Thus, Lynelle would become the person entitled to succeed to decedent’s estate and Lynelle would have standing to bring this case. (Prob. Code, § 48, subd. (b) [“interested person” determined according to particular purposes of proceeding]; Prob. Code, § 24, subd. (b) [as relates to trust, beneficiary means persons who have present, future, or contingent interest]; Prob. Code, § 250, subd. (b)(3) [provisions in will or trust nominating killer as executor, trustee, guardian, or conservator interpreted as if killer predeceased decedent]; Estate of Plaut (1945) 27 Cal.2d 424, 428-429 [beneficiary under earlier will interested party and may contest later will; prima facie showing of contestant’s contingent interest sufficient]; Estate of O’Brien (1966) 246 Cal.App.2d 788 [person named as a beneficiary under a later will whose interest may be impaired by probating an earlier will is an “interested person” who has pecuniary interest in estate that may be impaired or defeated by probate of the earlier will or benefited by having it set aside].)

Standing for purposes of the Elder Abuse Act must be analyzed in a manner that induces interested persons to report elder abuse and to file lawsuits against elder abuse and neglect. In this way, the victimized will be protected. Here, Lynelle’s expectancy, i.e., her contingent interest, provides her with a strong incentive to pursue this action and gives her standing.

Sheldon argues Probate Code section 259 is irrelevant because disinheritance under the statute occurs only after a person is found to have been guilty of elder abuse, but standing must exist at the time the action is filed. (Code Civ. Proc., § 430.10; [demurrer]; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004 [complaint filed by person without standing may be challenged by demurrer]; e.g., Estate of Lind (1989) 209 Cal.App.3d 1424.) Were we to accept this rigid view, the purposes of the Elder Abuse Act could be eviscerated. Any definition given to Welfare and Institutions Code section 15657.3, subdivision (d) must be sufficiently elastic to fulfill the purposes of the Elder Abuse Act. A decision as to whether a person has standing may be intertwined with other issues in elder abuse cases. This approach is consistent with the one taken to determine who is an interested person entitled to file petitions for probate. (Prob. Code, § 48 [defining standing to file probate petition requires flexible approach]; Prob. Code, § 8000, subd. (a); Arman v. Bank of America (1999) 74 Cal.App.4th 697, 701 [under the Probate Code, who is an interested person for purposes of standing is fluid concept and is often necessary to resolve the substantive claim to the parties’ relationship prior to deciding standing issue]; 2 Cal. Civil Practice: Probate & Trust Proceedings (2000) Standing, § 10:8, p. 10 [issue of standing in probate proceeding ordinarily determined before other issues, but court not required to follow this procedure].)

Sheldon’s assertion that only he (as the trustee and personal representative) and Norma and Alan (as decedent’s children) have standing is based upon an unduly restrictive interpretation leading to an unwarranted result.

“Elders are uniquely vulnerable to abuse because . . . they face advancing frailty, deterioration of mental capacity, and increasing reliance for assistance upon the families they raised.” (Note, A New Approach to Fighting Elder Abuse in America, supra, 2 Hastings L.J. at pp. 571-572, fn. omitted..) Elders frequently relinquish control to those who have gained their trust, becoming emotionally and financially dependent. In such circumstances, abusers become the elder or dependent adult’s trustee or executor and primary beneficiary. For example, most financial abuse is perpetrated by one person, usually a family member, or other trusted person. (Finberg, Financial Abuse of the Elderly in California (2003) 36 Loyola L.A. L.Rev. 667.)

Courts must interpret the standing provision in Welfare and Institutions Code section 15657.3, subdivision (d) to deter, not encourage such abuse. If abusers gain control of an estate, they may not use a restrictive interpretation of standing as an escape hatch. In order to effectuate the purposes of the Elder Abuse Act and Probate Code section 259, standing must be given to Lynelle, who is the successor representative of decedent’s estate. Any other conclusion would discourage interested persons from bringing elder abuse lawsuits and would ignore the legislative scheme.

Granting Lynelle standing is also supported by the analogous case of Olson v. Toy (1996) 46 Cal.App.4th 818. In Olson, plaintiffs brought an action to declare a trust invalid alleging that “defendants, using undue influence, took advantage of decedent’s senility and induced her to execute a trust in their favor.” (Id. at p. 823.) Plaintiffs were heirs at law and entitled to inherit under decedent’s will. Defendant Toy was the decedent’s personal representative and the trustee of the trust. (Id. at p. 824.) Although the general rule was that an executor and administrator was the proper party to sue on behalf of the estate (id. at pp. 823-824), Olson held that the plaintiffs had standing. Olson reasoned as follows, “Toy could hardly be expected on behalf of the estate to initiate an action to declare invalid the trust which she administers as trustee.” (Id. at p. 824.) Likewise, Sheldon, as the trustee and major beneficiary of the trust, cannot be expected to bring an elder abuse lawsuit against himself.

Lynelle has standing to pursue the elder abuse case against Sheldon.[12]

Estate of Lowrie 4/30/04B159305 CA2/3

Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992 , 35 Cal.Rptr.2d 685; 884 jjjj
(See Delaney v. Baker (1999) 20 Cal.4th 23, 33 (Delaney).)
Delaney v. Baker (1999) 20 Cal.4th 23 , 82 Cal.Rptr.2d 610; 971