California appellate attorney Evan D. Marshall on probate judges failing to protect elder abuse victims and thwarting promise held out by the Elder Abuse Dependent Adult Civil Protection Act (EADACPA)
I write this to offer my perspective on access of disabled and impoverished elders to legal services and judicial relief, and more particularly the judicial failure in many instances to implement the public responsibility to combat elder abuse.
I am an attorney engaged primarily in appellate practice and a frequent author of amicus curiae briefs on behalf of the Consumer Attorneys of California. I have been appellate counsel in a number of elder abuse cases, including Conservatorship of Levitt (2001) 93 Cal.App.4th 544, 113 Cal.Rptr.2d 294, the only reported case to address the problems surrounding the access of impecunious elders to legal services.
First in order is a general view of the problems encountered in this area.
Just as the incapacitated senior is vulnerable to abuse by predators—especially including those with whom they may be in a confidential relationship—so are elder abuse cases peculiarly vulnerable to judicial action which discourages counsel from undertaking the case or which renders relief ineffective. While some “elder abuse” cases are essentially medical malpractice cases against solvent institutions, such as hospitals or convalescent care facilities, the great bulk of elder abuse occurs in middle- or low-income communities in which the predator is an individual who has gained control over the senior’s finances and care, usually an individual whose own financial resources are very limited and who has little incentive to desist. The senior often has a sense of psychological dependency on the predator and may not even realize that their estate has been depleted by the abuser.
The attorney undertaking representation in such a case often faces difficult problems in proving the senior’s incompetence and showing undue influence, since elderly victims are often unwilling to admit that they may have been duped. In many instances (as in the case of Alzheimer’s patients), the senior has a veneer of rationality which requires specialized expertise to penetrate. The attorney must often undertake emergency measures to freeze assets and halt the predation, followed by extensive litigation to prove incapacity and to trace and attempt to recover assets, while trying to place the elder in a new living situation which will protect them against further abuse. The financial results of such litigation—especially in the case of seniors with limited assets—is always uncertain. The efforts required to protect the senior’ s health and psychological well-being are frequently the principal benefit of the litigation.
These are not popular cases with probate judges. They require extensive court time to secure ex parte and other relief and to litigate issues of competency and diversion of assets—time which many judges on the probate bench feel they do not have available on their calendar. The prosecution of these cases can be impeded or discouraged by denial of discovery, repeated unnecessary continuances, and the failure to effectively enforce protective orders.
Equally serious for the attorney undertaking such a case, is the nearly unfettered discretion of judges to set fees for counsel undertaking an elder abuse case on behalf of the senior, a conservator, or guardian. A judge hostile to elder abuse cases or to counsel prosecuting such cases can make them economically unfeasible by fees which fail to compensate at a reasonable rate for time necessarily incurred in protecting the elder. A case in point is the Levitt decision in which the Court of Appeal affirmed fee awards which were based solely upon the size of the impecunious elder’s estate without regard to the amount of time that had been necessarily incurred to protect the senior’s health and well-being. The result was to send a message to the legal community not to take such cases.
The elder abuse attorney is thus unusually vulnerable to the misuse of discretionary powers by the court and to any judicial hostility towards such cases.
This is by no means a new problem. The background to the current elder abuse statutes is described by the Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, 33, 82 Cal.Rptr.2d 610:
The purpose of [EADACPA] is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. As the Court of Appeal, in ARA Living Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1559, 23 Cal.Rptr.2d 224 (ARA Living Centers), has stated regarding the genesis and development of the Elder Abuse Act: “In 1982, the Legislature recognized ‘that dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect such persons.’ (Former 15600, added by Stats. 1982, ch. 1184, 3, p. 4223.)” It adopted measures designed to encourage the reporting of such abuse and neglect. (§ 15601 et seq.) Subsequent amendment refined the 1982 enactment, but the focus remained on reporting abuse and using law enforcement to combat it (see ARA Living Centers, supra, 18 Cal.App.4th at p. 1560). Also, Penal Code § 368 was enacted, making it a felony or misdemeanor (depending on the circumstances) for, among other things, a custodian of an elder or dependent adult to willfully cause or permit various types of injury. (Stats. 1986, ch. 769, 1.2, p. 2531.)
In the 1991 amendments at issue here, the focus shifted to private, civil enforcement of laws against elder abuse and neglect. “[T]he Legislature declared that ‘infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits.’ (§ 15600, subd. (h), added by Stats. 1991, ch. 774, 2.) It stated the legislative intent to ‘enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.’ (Id., subd. (j))” (ARA Living Centers, supra, 18 Cal.App.4th at p. 1560.) As was stated in the Senate Rules Committee’s analysis of Senate Bill No. 679, “in practice, the death of the victim and the difficulty in finding an attorney to handle an abuse case where attorneys fees may not be awarded, impedes many victims from suing successfully.” [20 Cal.4th 33, emphasis added.]
The problem can be illustrated from my own experience with one of the leading elder abuse counsel with whom I sometimes associate, Marc Hankin. Mr. Hankin was the principal author of the Elder Abuse and Dependent Adult Civil Protection Act (Welfare & Institutions Code § 15600, et. seq.) and a critic of the court’s failure to carry out the mandate of that Act to assure legal representation for abused elders. In an unreported decision, Conservatorship of Feist (LASC Case No. SP003455, 2nd Civil No. B149324), a Los Angeles County Superior Court judge reduced Mr. Hankin’s fee request by approximately 80 percent as a result of what the Court of Appeal characterized as “palpable animosity” arising out of Mr. Hankin’s contention that the courts were poorly serving impecunious victims of elder abuse. While the Court of Appeal found a clear abuse of discretion and remanded to another judge for recalculation of fees, Mr. Hankin’s other cases were then subjected to astonishing varieties of disparate treatment. In five out of five cases in which a challenge under CCP § 170.6 was filed by Mr. Hankin to cases initially assigned to Judge Thomas Stoever, the cases were assigned to Judge David Schacter, a friend of Judge Stoever, in a district remote from the situs of the cases. This pattern was flatly inconsistent with routine normal random reassignment of cases. When another party filed a peremptory challenge to Judge Schacter in one of those cases, Judge Schacter struck that challenge on patently improper and frivolous grounds, attempting to retain control of the case, an action which was rebuffed by the Court of Appeal. See Conservatorship of Samuel Blum, 2nd Civil No. B161886, LASC Case No. BP075047. Mr. Hankin was treated to other extraordinarily unfavorable treatment in a series of other cases, which I view as inexplicable except as reflections of judicial bias arising out of his advocacy of reform in the judicial treatment of elder abuse.
There is an extraordinarily small number of lawyers handling elder abuse cases, despite the legislative recognition that it is a substantial public problem. Even fewer of these counsel are private practitioners rather than employees of legal service organizations such as Bet Tzedek. Apart from the Levitt case, there are no reported decisions involving the typical case of a low-income predator abusing a low-income senior. The absence of these cases from both appellate and trial court calendars is an indictment of the degree to which the legislative mandate to assure legal services and a responsive judiciary has been thwarted by the lower courts, which have almost uniformly disregarded the legislative history of the Elder Abuse Act, even after the Supreme Court explained in Delaney v. Baker that a principal purpose of the Act was to remove judicial obstacles to abuse cases.
The judicial record demonstrates that the promise held out by the Elder Abuse and Dependent Adult Civil Protection Act has been thwarted by the judicial failure to assure the availability of private counsel, the judicial failure to provide counsel with a knowledgeable and responsive forum in which to present their cases, and by probate court practices that will inevitably deter counsel from representing vulnerable seniors with modest estates. I urge the California Legislature to investigate and redress this situation.
[Written by Evan D. Marshall, Esq.]