California Elder Law Attorney Blog

PICO RIVERA, Calif. (AP) - A Pico Rivera nursing home where a patient was fatally burned has received the state's most severe penalty.

The California Department of Public Health announced Wednesday that it issued a citation and a $100,000 fine to the Riviera Healthcare Center.

Regulators say a resident confined to a wheelchair at the nursing home set himself on fire last Dec. 23 while trying to light a cigarette in an unsupervised dining room. He was burned over 40% of his body and died 18 days later.

Authorities said the home allowed the man to smoke without a safety plan and that staff failed to use a nearby fire blanket and extinguisher to put out the flames.

A call seeking comment from the nursing home wasn't immediately returned.

Steven Peck's Premier Legal has attorneys that specialize in nursing home abuse and neglect matters, call us toll free at 1-866-999-9085 for a free initial consultation

Elder financial abuse costs older Americans more than $2.6 billion per year and is most often perpetrated by family members and caregivers, according to a new report released by the MetLife Mature Market Institute (MMI) entitled, Broken Trust: Elders, Family and Finances, which is accompanied by tip sheets for older adults and families on how to prevent such issues.

The report, produced in conjunction with the National Committee for the Prevention of Elder Abuse (NCPEA) and Virginia Polytechnic Institute and State University, states up to one million older Americans may be targeted yearly and that related costs like healthcare, social services, investigations, legal fees, prosecution, lost income and assets reach tens of millions of dollars annually.  The study indicates that for each case of abuse reported, there are an estimated four or more that go unreported.  The economic downturn may increase vulnerability.  Family members and caregivers are the culprits in 55% of cases, although financial losses are higher with investment fraud scams.

The National Adult Protective Services Association (NAPSA) suggests that the "typical" victim of financial elder abuse is between the ages of 70 and 89, white, female, frail and cognitively impaired.  She is trusting of others and may be lonely or isolated, although reports show that there is a very diverse population of victims.

The 2006 national Survey of State Adult Protective Services revealed that victims range in estimated number from a low of 100,000 to a high of one million a year.  It is believed that these numbers will grow with the aging population and their increasing net worth.

Elder financial abuse takes many forms, including, but not limited to: fraud (coupon, telemarketing, mail); repair and contracting scams; "sweetheart scams;" false/fraudulent advice from loan officers, stock brokers, insurance salespersons, accountants and bank officials; undue influence; illegal viatical settlements; abuse of powers of attorney and guardianship; identity theft; internet "phishing;" failure to fulfill contracted health care services; and Medicare and Medicaid fraud.

The report states that the justice and social services systems are often inadequately trained, staffed and funded to address elder financial abuse.  Further, at times it is difficult to determine whether financial abuse occurred or if one unwittingly or knowingly made a poor financial decision.  Generally under state jurisdiction, most states mention financial exploitation in their statutes, although what it constitutes, who is covered and who is accountable vary as widely as do the remedies.  A bill before Congress since 2002, The Elder Justice Act, would increase awareness of elder abuse, neglect and exploitation at the national level and would train individuals from various disciplines, combat elder abuse and prosecute cases.  An additional measure would create an Elder Justice Coordinating Council.

Underreporting is attributed to fear of government interference; parents protecting their children and family members; embarrassment and self-blame; a lack of realization that abuse has occurred; fear of being placed in a facility; fear of harm from the perpetrator; and a belief that nothing will be done or more money will be lost.

Additional facts:

•    Reports vary as to whether women or men are more vulnerable to financial abuse, but loneliness and isolation clearly leave one more exposed to theft.  The average victim of elder abuse is a woman over the age of 75 who lives alone (48% of women over the age of 75, according to the Administration on Aging).  Men are reported to be particularly vulnerable to the "sweetheart scam."
•    60% of substantiated Adult Protective Services (APS) cases of elder abuse involve an adult child; sons are 2.5 times more likely than other family members to take advantage of parents.
•    In addition to the obvious financial loss, long-term effects include credit problems, health issues, depression and the loss of independence.
•    Signs of abuse include indications of intimidation by or fear of a caregiver, isolation from family and friends, disheveled appearance, anxiety about finances, new "best friends" and missing belongings.
•    Elder financial abuse can be prevented by the following: 1) education about one's rights and about the various types of consumer fraud and scams; 2) Financial conservatorship and/or power of attorney for those who are vulnerable; 3) Assignment of responsibility to a trusted outside person, if children are a concern; 4) Additional media attention for this issue; 5) Training financial professionals to properly assist older customers; 6) Assistance from social services, medical/nursing personnel, government agencies;  7) Reporting suspected cases of financial abuse to local authorities.

Call Steven Peck's Premier legal toll free at 1-866-999-9085 to talk to an experienced elder abuse professional.

Senior citizens can arm themselves with a good defense against the many scam artists out there trying to rob them of their money. Domestic crimes, especially against seniors, are on the rise.

The types of senior crimes most dealt  with are elder abuse, financial abuse, and neglect. With the economy being as bad as it is, kids are moving in with their parents, and sometimes that causes further problems. Physical abuse against elders is also on the rise. 

There has also been a rise in what are known as gypsy scams, or those in which a stranger targets a senior at their home, either by phone or in person, and somehow convinces them to give them money. They often convince the senior to let them inside and steal once they gain entry, posing as utility workers or handymen to try to gain their trust. 

Any elder who feels they may have been the victim of fraud or abuse can call Steven Peck's Premier Legal toll free at 1-866-999-9085 to talk to an experienced elder law attorney.

 

Elder abuse is on the rise. Whether because of the economic downturn, or the fact that our population is aging, elder service agencies throughout the region are experiencing an increase in reports to their protective services departments. Unfortunately, the State of California has also seen an increase in reports affecting elders in California and the rest of the United States.

Elder abuse takes many forms, from physical or sexual abuse, to financial exploitation, emotional abuse, abandonment of care-taking responsibilities, or just benign neglect, such as an inability of a caretaker to recognize what is needed to keep the person safe or healthy. But, it often leaves very fragile people in unsafe situations if no one acts.

When people are more aware of the warning signs of abuse, they are more prepared to act. As with younger victims of abuse, some of the signs are bruises, burns, change in demeanor or alertness, unusual depression, bedsores or other hygiene problems, weight loss, tense conversations or frequent arguments with loved ones or caretakers, or changes in a person's financial condition.

Unfortunately, many people are reluctant to report suspected elder abuse or neglect (including self-neglect), fearing that the person will know it was them who made the report. Yet, all of the agencies that provide protective service investigations are very careful to maintain the reporter's confidentiality.

There are actually some folks who must report suspected abuse or neglect of an elder. The Protective Services program are state-funded, and California law mandates that doctors, nurses, social workers, police, firefighters and other emergency responders, elder outreach workers, directors of home health agencies, and certain other workers report elder abuse. If any of these mandated reporters knows of elder abuse and doesn't report it, that person can be fined and possibly held criminally responsible.

A mandated reporter must report the abuse right away, and must file a written report within 48 hours. Whether mandated or not, potential reporters are encouraged to call Adult Protective Services for a consultation if they are unsure whether an elder's situation that they have encountered is something that should be looked into further.

Individuals who don't fit into the mandated reporter category are also encouraged to report situations that don't "appear quite right" if they suspect elder abuse or neglect. Advocates say to "trust your gut." If you feel something is wrong, something might really be wrong. After the report is filed, if it meets protective services criteria, the case is assigned to a specially trained social worker who will look into the matter. Again, the identity of the reporter is kept strictly confidential.

Many times, interventions and services offered by the Protective Services program, and subsequently by the Home Care program, have enabled elders living in the State of California to live much happier, safer, more independent lives. But, it's also important to remember that as long as an elder is still capable of making their own decisions, they are fully at liberty to decide whether they want Adult Protective Services' help or not.

The reluctance of an elder to accept the assistance or protection that is offered can be frustrating, but that should not deter anyone from trying to lend a helping hand to an person they believe is being mistreated or who is suffering from neglect or self neglect. Sometimes, over time, gaining a person's trust does finally result in them receiving the help they need.

Contact Steven Peck's Premier Legal www.premierlegal.org should you desire to talk to an attorney who specializes in Elder Abuse and Neglect toll free at 1-866-999-9085

A debt  collector including the creditor itself must not contact a California debtor who it knows is represented by an attorney.  Yet the collector violation de jour seems to be the refrain, "I don't care if you  have a bankruptcy lawyer, I'll call you every day until you can provide a bankruptcy case number".

If this happens to you, and you have told the caller that you are represented by a  lawyer about this debt, make sure to get the name, phone number, and the entity the caller represents.  It makes it easier to sue them for violation of Califorrnia's Rosenthal Fair Debt Collection Practices Act.

Here's the authority:  the federal Fair Debt Collection Practices Act prohibits contact by a third party collector with a consumer who is represented by a lawyer.  15 USC 1692c.

California expanded the consumers rights with respect to debt collection by including the original creditor in the class of persons covered by the Rosenthal Act.  Civil Code Section 1788.17 imports the prohibition of contacting a debtor who has a lawyer.

So, don't get your legal information from a debt collector and don't shrug off violations of law.  Tell your lawyer, make a record of the facts, and fight back.

Call Steven Peck's Premier Legal with any questions regarding Debt collection toll free at 1-866-999-9086.

MORE elderly and vulnerable people than ever are having their savings pilfered by those supposed to be caring for them, shocking figures abound.

The number of claims of financial abuse against vulnerable adults in California has risen substantially, including more and more allegations of other types of abuse to be also on the rise including  physical and medical neglect.

Accusations of physical and financial abuse are reaching epidemic proportions with double digit increases appearing every year.

The largest groups of the alleged victims were older people, then dependent adults with learning disabilities. Women are the most elderly abused.

Should you need a top quality competent elder law attorney, please immediately call Steven Peck's Premier Legal www.premierlegal.org toll free at 1-866-999-9085.

If you think you or a family member has been the victim of financial elder abuse, you might be right. Financial abuse of seniors is far more widespread than many people realize, affecting many seniors and their families. However, before you accuse someone of violating financial elder abuse laws, there are a few things you should know.

First is that financial elder abuse laws are not designed to protect seniors who have simply made a poor decision. 

A poor or unwise decision is not elder abuse unless it was prompted by someone taking advantage of an elderly person's particular need, For example, an elderly person who is convinced to invest in a risky venture, such as a wildcat oil drilling venture, is not elder abuse if there really is a drilling venture. So, the investment may be unwise--especially if the money for the investment is money that was needed for the senior's care--but that does not mean that the elder is the victim of financial elder abuse. What might make it financial elder abuse is if the senior was told she would not receive proper care unless she invested in the drilling venture.

Financial elder abuse law is not designed to undo unwise investments--it is designed to make it easier to go after people who cheat and steal from elderly people, or who use undue influence to get the senior do something he or she would not do without that undue influence, Undue influence is the use of a confidential relationship or a real or apparent authority for the purpose of gaining unfair advantage.

Furthermore, it is not financial elder abuse simply because the senior changes his or her mind about a decision. Again, there has to be some form of improper influence or cheating on the part of the person who convinces the senior to do something that is not in his best interest.

It is also important to remember that just because someone else does not like the senior's financial decisions does not mean that the senior has been victimized. For example, in some cases one child might be upset about money or property given to another child--but that alone is not proof that elder abuse has occurred.

Elderly people, if they are being cared for by one child, tend to want to reward that child for the care, There is nothing wrong with that unless it comes with the demand, 'I won't care for you as much if you do not give something to me. It is proper to want to give property to one child who cared for the senior. You have to find undue influence--it is not just elder abuse because of favoritism.

There has to be wrongdoing. Usually, the idea is that someone ends up with an elderly person's money by one of several means, either by cheating or, assuming that there is no dementia on the part of the senior, prevailing upon the senior for one reason or another to give up something that they would not have given up.

When financial elder abuse does occur--where the senior has been prevailed upon to give up money or property that she would not have given up in response to improper pressure or undue influence--the law can step in and help the senior to recover his or her losses. The law also provides for attorney's fees in cases of financial elder abuse, so that the senior does not lose money fighting a court battle. However, before a lawsuit can begin, it is important to contact Steven Peck's Premier Legal toll free at 1-866-999-9085 to discuss the senior's legal options.

It was Thanksgiving Day 2004, and 72-year-old Pearl Robertson -- known to those who loved her as Mama Pearl -- lay dying on the bathroom floor.

Mama Pearl had advanced heart disease, CBS News correspondent Kelly Cobiella reports. But an autopsy also revealed bruises, a fractured sternum, broken ribs and blood in her lungs.

"She had sustained blows to the chest, and that's what initiated the events that caused her to die," the medical examiner said.

It's a hardly studied and hugely under-reported problem, but of the known cases of elderly abuse and neglect, researchers say 89 percent happen in private homes -- and more than half at the hands of children or other relatives.

States are starting to get the word out with public service announcements. Whether it's a grandfather being swindled by his son or an elderly aunt whose relatives are simply too far away to help, there is no typical case. What is typical is that the victims either don't know they're being abused or neglected, or they don't want to believe it.

"A lot of times the perpetrators are family members or people known to the senior, so they don't want to report that because they love their children and they don't understand why they are being so abusive to them or so neglectful of them," Dr. Carmel Dyer says.

Dyer heads a new program at Houston's Baylor College of Medicine, one of only five like it in the country, where doctors, nurses and medical students make house calls to seniors based on reports from Adult Protective Services. A social worker who suspects abuse can call on doctors for a second opinion.

If a doctor suspects a crime, experts from all corners -- medical, social services and criminal justice -- work through the case together. It's the same kind of approach used to tackle domestic violence and child abuse.

That teamwork helped prosecutor Mark Donnelly prove that CPR didn't cause Mama Pearl's injuries -- her son's girlfriend did. She's now serving time for felony assault on the elderly.

"I have no doubt that a crime was committed in this case. If I had felt otherwise, I would have never come close to going to trial on it," Donnelly says.

Mama Pearl found justice. But experts fear that for every case they find, five more go unreported.

IT appears that almost every week, we see some sprightly, newly-minted centenarian in the newspaper or on the evening news being feted and toasted by the Governor General while his or her relatives through the generations look on elatedly.

We read or watch in awe or with a sense of inspiration as they attribute their longevity to the blessings of God, maintaining healthy lifestyles and, most importantly, the enduring love, care and support of a spouse and other cherished loved ones.

However, these people who are adequately and lovingly nurtured and cared for by either family members or professionals represent only a fraction of the growing elderly population we have in California. Even though it has existed for quite some time now, abuse of elderly persons is increasingly being brought to light.

Elder abuse can be broadly defined as the deliberate neglect and mistreatment of an elderly person, especially one who is no longer in a position (either physically or mentally) to take care of himself and depends on another person to provide this function.

Like domestic abuse, there are different types of geriatric abuse:

• Physical abuse. This refers to the deliberate use of unnecessary force, restraint or confinement against the victim. Actions include hitting, pushing and also the malicious or inappropriate administration of drugs and medication.

• Emotional abuse. This refers to those actions which cause emotional or psychological distress or anguish. This can be further divided into two categories: Verbal abuse, including yelling, cursing, insulting, etc. and non-verbal abuse, such as ignoring the individual or isolating him from the outside world.

• Sexual abuse. This includes most obviously attempting to or engaging in sexual activity against the victim's will, as well as showing him or her pornographic material or forcing the individual to watch sex acts.

• Neglect: This is failure of the caretaker to perform the duties of his or her job and refusing to provide the (level of) care deserving of and needed by the victim.

• Financial abuse and exploitation: This is the dishonest access to and use of the victim's funds. These include cash, cheques (personal, disability, pension, etc.) credit cards, forgery of the victim's signature and identity theft.

Here in California, some people have taken to essentially "dumping" their elderly relatives at Skilled Nursing Facilities,  Geriatric Hospital and Psychiatric Hospitals because they either can't be bothered, or in some cases, don't have the necessary money or help to provide the care that is needed. Often times they are left lonely and forgotten; putting the burden of the Government. It is truly a very sad and disheartening reality. No one disputes the fact that caring for an elderly person can be tiring and at times frustrating, but their abuse never should be allowed to happen in the first place, much less continue.

Nevertheless, we should remember to give due credit and praise to those who go above and beyond to put the time and effort into making the remaining years of these people as enjoyable and stress-free as possible, and hope that the instances of abuse eventually become few and far in between.

Those of us who have elderly relatives should always be vigilant for warning signs and irregularities in their appearance and attitudes and report these instances to the necessary authorities to ensure that they are not encouraged to continue.

Let us respect and revere our grandparents and great-grandparents; treat them the way you would want to be treated at their age, as they were the ones who worked so hard many years ago to build a society which we now enjoy. As the theme song of that old commercial goes, "Don't abandon them, lend a helping hand and remember they are treasures of our land".

Should you have an issue concerning elder abuse or neglect you will need the services of an attorney, immediately then contact Steven Peck's Premier Legal toll free at 1-866-999-9085.

Three people used charm, lies and threats to persuade an elderly Buffalo woman to give them more than $100,000 before they were arrested this week, according to Buffalo police.

Possibly as far back as 2002, the three became acquainted with the victim and came up with a variety of reasons why she needed to give them thousands of dollars at a time from her bank account.

Their hard-luck tales turned to threats of violence if the flow of money stopped, and the scheme ended only after Erie County Adult Protective Services alerted police.

"They befriended her in the neighborhood, and she trusted them," said Michael J. DeGeorge, Buffalo Police Department spokesman. "They would keep coming to her for large sums of money."

Mary Weeden, 41, of Mills Street; Regina Weeden, 45, of Quincy Street; and Belton Bruce, 44, of Carl Street, face charges of grand larceny, conspiracy and aggravated harassment.

The relationship among the three isn't clear, although authorities said the Weedens appear to be sisters.

Details vary from case to case, but experts said elder abuse is far too common and typically committed by family members, caregivers or others who ingratiate themselves into the victim's life.

"We really need to keep our eyes on folks who are elderly who may be the target of such people," said Robyn Wiktorski-Reynolds, advocate program coordinator at Crisis Services, which deals with elder abuse.

The Buffalo News is not naming the victim, who is 72, nor her street, except to say she lives near Bailey and Kensington avenues. The three facing charges don't live near her, but apparently spent time in the area.

Over the years, the three convinced the woman to give them sizable sums of money by coming up with various reasons for needing financial assistance, DeGeorge said.

Arrest reports said the suspects preyed on the victim's sympathy, and she handed them $2,500 or $4,900 each month from her bank account.

Eventually, they began threatening to burn down or blow up her house if she didn't continue giving them money, according to the reports.

The total theft exceeds $100,000, although a precise figure had not been determined, the arrest reports say.

Adult Protective Services recently was contacted because someone -- possibly an official with the woman's bank -- became concerned about the woman's withdrawal of so much money, DeGeorge said.

Department staff members were at the woman's home Wednesday when she received a call demanding $4,900, De- George said.

Northeast District Officer Kim Beaty, who was waiting when the three arrived, arrested them with the assistance of Officer John Sanders. They were arraigned in City Court.

Authorities did not know whether the victim has any immediate family, but she is believed to live alone.

Senior citizens who don't have anyone checking in on their living conditions, their health and their finances face the greatest risk of abuse, said Wiktorski-Reynolds, who spoke generally and not about this case.

Scam artists and other abusers make themselves indispensable to elderly victims, who might need help or feel lonely, she said.

For this reason, it's important to be aware of "the web of people" who are in the lives of an elderly family member or friend, Wiktorski-Reynolds said.

Should you suspect medical elder abuse, financial elder abuse and / or neglect immediately contact Steven Peck's Premier Legal, for a free consultation with an experienced elder law attorney at 1-866-999-9085.

A wheelchair-bound woman suffers in silence at the hands of an abusive caregiver. A lone widower falls victim to a predatory lending scam and loses his home. An ailing mother lies helpless in her bedroom while her son spends her life savings.

As many as one in seven senior citizens nationwide falls victim to some type of elder abuse--usually at the hands of a family member. The abuse can be financial, physical or psychological. And the consequences can be deadly. Statistics suggest that abused and exploited seniors die sooner than other seniors their age. But in spite of such devastating consequences, most elder abuse goes unreported.

If you have been abused, you may be afraid of what might happen if you tell someone. Or, maybe you suspect that an elderly neighbor or friend is being abused, but you do not know where to turn for assistance. Help is just a phone call away. No one has the right to hurt you--or your neighbor or friend--physically, emotionally or financially.  

1. What is elder abuse?

It is the neglect, exploitation or "painful or harmful" mistreatment of anyone who is 65 or older (or any disabled dependent adult aged 18 to 64). It can involve physical violence, psychological abuse, isolation, abandonment, abduction, false imprisonment or a caregiver's neglect. It could also involve the unlawful taking of a senior's money or property.
In short, elder abuse involves various crimes, such as theft, assault or identity theft, that strike victims of all ages. But when the victim is 65 years old or older (or a disabled dependent adult), the criminal faces stiffer penalties.

2. What should I do if I am being abused or if I suspect someone else is being abused?

If the abuse, neglect or exploitation is taking place in a private home, call the Adult Protective Services (APS). Check your county phone listings for a local APS office. Or, for a referral, you could call 1-800-510-2020. (In addition, many counties have specialized teams that deal with financial elder abuse; ask the APS worker if such a team exists in your area.)

If the abuse is occurring in a licensed long-term care facility, such as a nursing home, call the local long-term care ombudsman. (To locate an ombudsman, call 1-800-231-4024.) Your report will be confidential, and you can remain anonymous.

Or, to report elder abuse of any kind, you can simply call the California Attorney General's Elder and Dependent Adult Abuse Reporting Hotline at 1-888-436-3600 or attorney Steven C. Peck a specialist in elder abuse, at 1-866-999-9085.

3. What are some examples of elder abuse?

• Your caregiver or a "new friend" persuades you to sign a power of attorney so she can handle your affairs for you--only to sell your home and steal the cash.
• Neglected and hungry, you lie stranded in your bedroom while your live-in son empties your bank accounts.
• A home repairman persuades you to pay cash on the spot for a "great" home improvement deal-then never does any work.
• You forget to take your medication and a nursing home staff member slaps you in the face.
• You pay "fees" to claim a "free vacation" or winnings from an international lottery--only to deplete your savings and get nothing in return.

4. Am I required to report suspected elder abuse?

Yes, if you are responsible, with or without pay, for taking care of an elder or dependent adult. Others, too, must report suspected elder abuse: administrators, supervisors and licensed staff of facilities providing care and services to the elderly; APS employees; health practitioners (such as physicians); police officers; clergy members; and elder or dependent adult care custodians. Care custodians include, for example, home health agency administrators and staff, and fire department members.

If a mandated reporter fails to report known or suspected abuse, he or she could face criminal charges.

And beginning Jan. 1, 2007, employees of financial institutions will be required to report known or suspected financial abuse of elders as well--or they could face civil penalties.

5. Is there anyone who will check on my elderly father's well-being for me?

Yes. If you are worried about a parent or other elderly person who lives in a different community, contact the police or sheriff's department in his or her area and request a well-being or welfare check.

Any questions call Steven Peck's Premier Legal. at 1-866-999-9085 and have a strong determined attorney help you with your elder law legal issues.

San Bernardino, CA - A Victorville couple was sentenced to county jail on felony charges connected to real estate fraud and financial elder abuse. Joe Warf, 51, and Tracy Warf, 41, appeared in Victorville Superior Court on Friday, April 10, 2009. The pair was sentenced to 250 days and 365 days county jail, respectively, for financial elder abuse.

Both will be placed on formal supervised probation for five years at the conclusion of their sentences.

In June 2008, Joe and Tracy Warf deceived the 94-year-old victim into signing over his San Bernardino home to them. The San Bernardino County District Attorney's Real Estate Fraud Unit conducted an investigation and arrested Joe and Tracy Warf on November 24, 2008.

Believe that someone you know has been a victim of Financial Elder Abuse, please contact Steven Peck Attorney at Law toll fee  at (866) 999-9085

90-Day Letters In Medical Malpractice Actions In California

California Code of Civil Procedure sections 364-365 provide:
364
(a)	No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.
(b)	No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.
(c)	The notice may be served in the manner prescribed in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.
(d)	If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.
(e)	The provisions of this section shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name, as provided in Section 474.
(f)	For the purposes of this section:
	(1)	"Health care provider" means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. "Health care provider" includes the legal representatives of a health care provider;
	(2)	"Professional negligence" means negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.
364.1
	No action based upon the professional negligence of a physician and surgeon or doctor of podiatric medicine may be commenced unless the 90-day prior notice required by Section 364 is also sent to the Medical Board of California or the Board of Podiatric Medicine, as applicable, at the same time it is sent to the defendant. The Medical Board of California or the Board of Podiatric Medicine shall maintain the notice as a confidential part of a potential investigation file.
365
	Failure to comply with this chapter shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein. However, failure to comply with such provisions by any attorney at law shall be grounds for professional discipline and the State Bar of California shall investigate and take appropriate action in any such cases brought to its attention. Contact Steven Peck's Premier legal toll free at (866) 999-9085 should a loved one have been the victim of negligence by a Doctor, Skilled Nursing Facility and / or Hospital to protect your legal rights.

An elder who lacks capacity is a person who does not have the ability to understand and appreciate the rights, duties, responsibilities, and consequences of a decision (Probate Code: 812). To lack capacity, a person's inability to understand must arise from a demonstrated deficit in cognitive functioning. Undue influence consists of persuasion that exceeds accepted standards and approaches the boundaries of coercion (Civil Code: 1575). Elders who are incapacitated or who are subject to undue influence are particularly vulnerable to exploitation.

Existing law protects elders against financial abuse by allowing them to demand the return of property fraudulently taken, and if the property is not returned, to sue the taker not only for the return of the property, but also for the expense of the lawsuit. Unfortunately, this remedy is not currently available to incapacitated or unduly influenced elders.

Existing law provides that someone who lacks capacity or who is unduly influenced may undo a transaction through rescission. While rescission provides an elder with a legal mechanism for recovering the property, if the defendant refuses to return it, the elder must bear the cost of hiring a lawyer. Not only can this be expensive, but a lawsuit can delay the recovery by a year or more. Under current law, a person who takes an incapacitated or unduly influenced elder's property is actually rewarded for delaying its return because the worst that can happen is that the court will order its return. In addition, since most lawsuits are resolved by compromise, the taker is typically able to retain some of the property.

SB 1140 corrects this problem by authorizing incapacitated and unduly influenced elders to recover their property and their legal expenses just like financially abused elders. Thus, those who take such property would be encouraged to quickly return it so as to avoid paying the elder's legal expenses.

Bill Summary

SB 1140 authorizes incapacitated and unduly influenced elders and dependent adults to recover their property and the expense of hiring a lawyer if they must file a lawsuit.

The bill also clears up several other technical ambiguities in the current law by:

• Permitting recovery when the property taken is part of an elder's trust;
• Permitting recovery when the property is taken through an agreement, gift, or by will;
• Permitting recovery from the employer of a person who takes the elder's property by means of his employment;
• Permitting an elder to bring such an action within four years of when the loss should have been known.

The matter of Birl v. Heritage Care, LLC, State of California, Second Appellate District,  involved claims of wrongful death of the decedent Jerome Birl, elder abuse, and related causes of action brought against a nursing home facility and its owner. The issue on appeal is whether an arbitration clause should apply.

The Court concluded that because (1) the other codefendants in the action (the hospital and doctors) are third parties unaffected by this arbitration agreement, and (2) the plaintiffs alleged several causes of action in their individual capacity as third parties not bound by the arbitration agreement, the trial court did not misapply the law (Code Civ. Proc., § 1281.2, subd. (c)) or abuse its broad discretion in refusing to enforce the arbitration agreement to avoid the possibility of conflicting rulings on common issues of law or fact.

Courts are now loathe to enforce Arbitration Agreements against third parties and for causes of action which are not contained in an Arbitration Agreement for fear that enforcement of an arbitration clause would cause conflicting and / or inconsistent rulings of the arbitrated matter versus the matter tried to Jury.

There are certain warning signs that can indicate nursing home abuse and neglect has and/or still is occurring. Some  residents are hesitant to disclose instances of nursing home abuse and neglect out of fear that the abuse will get worse or because they do not want to burden their families. Some residents may not even be able to communicate that nursing home abuse and neglect is occurring due to their physical or mental limitations. If there are any signs or indicators that  nursing home abuse is present, immediate action should be taken.

 

The following are warning signs of nursing home abuse and neglect: 

 1. Unexplained bruises and bruising

 2. Bedsores and skin breakdown;

 3. Sudden changes in behavior;

 4. Staff refusing to allow visitors to see resident or delays in allowing visitors to  see resident;

 5. Staff not allowing resident to be alone with visitor;

 6. Resident being kept in an over-medicated state

 7. Loss of resident's possessions

 8. Sudden large withdrawals from bank accounts or changes in banking practices

 9. Abrupt changes in will or other financial documents

Los Angeles County has the most nursing homes located in the State of California.  As a result thereof, nursing home abuse and neglect is more prevelant in the City and County of Los Angeles than anywhere else in the State of California.

It is imperative that you inspect the nursing home and interview the nursing home staff before you sign an admission contract.  Do not be afraid to ask the staff as many questions that you feel are warranted.

Most nursing home admission agreements also include a nursing home arbitration agreement which could seriously affect your constitutional right to a jury trial should the nursing home abuse or neglect the elder resident or a dependent adult.