An Elder Abuse Restraining Order is a civil court order that is intended to protect particular individuals against any kind of harm, including physical abuse, neglect, financial exploitation, and emotional distress. These are people who are 65 years old or older, dependent adults aged between 18 and 64 years, and those with mental or physical impairments.
In this excerpt, you learn what this legal protection means in practice and how such orders provide a remedy in preventing mistreatment. California Welfare and Institutions Code 15657.03 is the primary statute that grants jurisdiction to the court to grant these vital protections. This excerpt also discusses elder abuse restraining orders under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), emphasizing how they are applied in the California legal system.
If you have walked this challenging path, the advice of a knowledgeable legal expert is not optional. The legal system is tricky to navigate, and this is when one is in such an emotional state. In the case of people in Orange County who require the services of a skilled attorney, our attorneys at the Goldman Flores Restraining Order Law Firm are committed to offering expert services in all cases concerning restraining orders.
What Qualifies as Elder Abuse for a Restraining Order?
To have an Elder Abuse Restraining Order granted by a judge in Orange County, the individual seeking the order (the petitioner) must demonstrate to the court that they have been abused. This legal test applied in civil trials is a preponderance of the evidence. This standard asks you to demonstrate that, more probably than not, the events that you have described are actual.
You need to find strong evidence to move the scales, even slightly, in your favor. This is a much different and less heavy burden of proof compared to the beyond a reasonable doubt standard needed to convict a person of a crime.
Nevertheless, you must still provide clear, credible, and compelling evidence. A judge will not order based on unfounded accusations or vague feelings. You should give specific facts, and the court will scrutinize your testimony, your witnesses, and any other physical evidence to ascertain whether the so-called behavior fits into the general legal definition of abuse as stipulated by California law.
Emotional and Physical Abuse
Physical abuse is an easy one to describe when you are presenting a case for a restraining order. The act of violence that is covered by the law includes any intentional act of assault or battery that causes physical pain or injury.
Sexual assault is also included here. The definition, however, goes down to more dominating actions. The application of the term "unreasonable physical restraint," that is, locking an older person in a room or chaining them to a chair, is an obvious case of abuse. The same can be said of chemical restraint, which is the inappropriate use of medication to sedate or control an elder to a degree that is not medically necessary. To obtain an order with dated photographs, you should carefully record evidence of physical injuries, including inexplicable bruises, welts, cuts, or burns.
Although emotional abuse does not leave any marks, the court takes it equally seriously. It is legally described as the behavior that brings mental pain. This may involve frequent harassment, intimidation, and verbal threats, which make an elder fearful.
Isolation is another type of emotional abuse. You can observe a situation when a new caretaker, relative, or even a friend systematically isolates an older person, depriving them of their previous support system. They may filter phone calls, decline relaying messages, and visitation by family and friends.
This secluded status is an intentional measure frequently done to impose unnecessary pressure, destroy the will of older people, and make them easier to manipulate financially or physically. In explaining this to a judge, you have to explain how these actions have resulted in actual mental distress, including depression, anxiety, or extreme agitation.
Financial Abuse
Financial abuse is a devastating type of exploitation that may deprive an elderly adult of life savings and security. California law refers to it in a broader term as the unjustified taking, stealing, acquiring, or keeping of property that belongs to an elder for an unlawful purpose or with the motive of defrauding.
There may be numerous instances of this abuse, and you should be ready to provide clear evidence of financial misconduct. For example:
- It could be stealing cash, checks, or other valuables from an elder's house.
- It also often deals with misusing a Power of Attorney (POA). When an individual agrees to become a POA agent, they take on a fiduciary, a legal responsibility to act in the elder's best interests. If you discover that an agent is:
- Spending the elder's money on their own personal expenditure
- Taking risky investments against the elder's interest
- Giving away property to him or herself, the agent has violated this duty, which amounts to financial abuse.
You should also know how scams may result in a restraining order. If someone is targeting an elderly person in a romance scam, grandparent scam, or fake contractor scam, a restraining order may prevent the perpetrator from interacting further with the victim, eliminating the means of exploitation.
Financial abuse in more complex cases can be through real estate fraud, where an abuser forces or cheats an elder to sign a deed to their home. The records that will be required to demonstrate such allegations include bank statements showing suspicious withdrawals, forged checks, credit card statements showing unauthorized charges, and suspicious real estate records.
Neglect and Abandonment
Abuse does not necessarily mean an aggressive act. In many cases, it is a failure to act. Neglect is the act of a person with a legal or contractual responsibility of care, like a relative or a domestic worker, to take care of the basic needs of an adult in need of care. The effects of such failure are life-threatening.
You can be in a scenario where a caregiver is consistently failing to administer some essential drugs, which causes the health of the elderly to deteriorate. Neglect may also be associated with a lack of proper nutrition and hydration, which leads to malnutrition and harmful loss of weight. It also involves subjecting the older person to unhygienic and dangerous living conditions or neglecting to treat severe health conditions such as bedsores.
Another type of neglect is abandonment. It is the abandonment of an older individual by the one who has taken the responsibility to take care of them, and they are left unable to take care of themselves. This may be a caregiver who suddenly quits their duty without a successor, or a family member who decides to leave an elderly person at a hospital with no plans to return.
When introducing a case against neglect or abandonment, you have to prove to the judge not only what failures have taken place, but also how these failures directly or potentially resulted in physical injuries or mental torture to the elder.
A Guide to a Step-by-Step Process of Getting an Elder Abuse Restraining Order
Obtaining an Elder Abuse Restraining Order is formal and multistep, which can only be carried out in the correct order. Every step ensures that the court considers the request in accordance with everyone's interests so that their interests are not violated.
Step 1: Submission of the Required Forms
When your case officially begins, you hand in the necessary legal documents to the court clerk. The first is the EA-100, the Request for Elder or Dependent Adult Abuse Restraining Orders. This is the initial and most important chance to inform the judge about what has occurred. You will have to fill it out and include a detailed written declaration. You must compose a clear chronological account of the abuse in this sentence.
Whenever possible, use specific dates, times, and locations. In case there were direct threats, copy them verbatim. Elaborate on the physical, emotional, and financial damages caused by the abuse. Besides the EA-100, you will also fill out the EA-109 (Notice of Court Hearing) and the EA-110 (Temporary Restraining Order).
You also have to fill out the CLETS-001 (Confidential CLETS Information), which gives the descriptive information of the restrained individual to law enforcement. It is important to remember that the California law does not impose any court filing fees on the petitions to protect against abuse, which means you will not be forced to pay to find protection.
Step 2: Applying Temporary Restraining Order (TRO)
Since the law acknowledges that victims of abuse may require urgent protection, you can request a judge to issue a Temporary Restraining Order (TRO) on the same day that you submit your papers. It is an ex parte procedure, implying that the judge will decide based on what you have written without the other party's presence.
The TRO is to ensure that the alleged abuser does not do additional harm, intimidate you, or destroy evidence between the time of filing and the date of the official court hearing. If the judge has enough evidence of an immediate threat in your declaration, they will sign the TRO. This interim injunction is a legally binding directive the moment it is delivered to the other individual and will continue until your court hearing date.
Even when the judge refuses to grant a TRO, it does not mean the case is over. It implies that the judge did not feel there was a necessity for emergency orders and would have desired to listen to both parties during the scheduled hearing and, thereafter, make a decision.
Step 3: Formal Service of Court Papers
Once the court has given you a hearing date and a TRO, should you have ordered one, you should legally notify the restrained individual. This is the process of service. You cannot do this yourself. You will need to have another adult, above 18 years old and not involved in the case, physically deliver a complete set of the court documents to the other party.
Although you can request a friend or a relative, the best procedure is to employ the Orange County Sheriff's Department or a professional process server. These experts are knowledgeable in the legal regulations of service and can offer you plausible proof of service.
The law is extremely rigid regarding the time of delivery of services; the documents should be delivered at least five days before the court session. Once the service is accomplished, the server has to complete and sign EA-200 (Proof of Personal Service), which you have to file in the court to demonstrate to the judge that the other party was duly notified.
Step 4: The Permanent Restraining Order Hearing
The hearing is a formal court session, after which the judge will listen to both parties and decide. You must be at the hearing and ready to discuss your case. This involves providing your personal testimony under oath, whereby you will explain what has occurred to the judge in your own language.
Witnesses who have witnessed the abuse firsthand can also be brought to give testimony in your favor. You must come with all the evidence ordered and prepared to show. This is a copy of three copies of any photos, papers, or reports:
- One to yourself,
- One to the judge, and
- One to the other party. The other party will be allowed to cross-examine and vice versa.
Upon hearing all the evidence and testimony, it will be up to the judge to determine whether to grant a so-called permanent restraining order. This order, which is also referred to as a Restraining Order After Hearing, may be granted within a period of up to five years.
Who Is Eligible to Apply for the Restraining Order?
The legislation is such that if a vulnerable adult cannot take the legal process, they can still get protection. Although an elder or dependent adult always has the right to petition on their behalf, other parties are granted the legal standing to do so.
A fiduciary, like a legally appointed conservator or a guardian, who has a fiduciary duty to guard the well-being and property of their conservatee or ward, is able and ought to petition for a restraining order in case they realize that their conservatee or ward is being abused.
On the same note, an agent acting under a Power of Attorney (POA) files on behalf of the principal (who issued the POA). This is especially applicable when a financial POA agent finds out about financial exploitation or a healthcare POA agent finds out about physical abuse or neglect.
In other cases, a judge may conclude that an elder lacks sufficient capacity to advocate on his/her behalf during a pending court proceeding. In that case, the court may delegate a guardian ad litem who would represent the elder for the sole purpose of the litigation, and this individual may further apply for the restraining order.
Any other person who has been duly legally authorized, like a trustee who finds out that the trust assets are being misapplied on behalf of an elder beneficiary, can petition the court to protect themselves as well.
Protections and Consequences of a Restraining Order for Elder Abuse
Issuing an elder abuse restraining order by a judge is a serious legal procedure that establishes a potent array of safeguards for the victim and enforces harsh and life-changing restrictions on the restrained individual. It is a court order that has the entire force of the law.
Key Protections for the Vulnerable Adult
The orders are designed to bring safety and peace into the older person's life. A no-contact order is extensive and prohibits the restrained individual from calling, writing by text, emailing, sending letters, or using social media platforms or intermediaries to communicate.
A stay-away order is a legally established buffer area, usually 100 yards, around the elder, their residence, their vehicle, their place of employment, and (in some cases) the residences of immediate family members. This will enable older people to travel freely in their communities without fear of coming across the abuser.
The most dramatic of the orders is possibly the residence exclusion, or “kick-out” order. In case the abuser is co-residing with the elder, a judge may direct them to vacate the premises immediately, even though they may be on the lease or deed. Other orders available to the court, depending on the circumstances, are to make the abuser give up particular property or to take anger management classes.
Significant Consequences for the Restrained Person
As the restrained man, the effects are immediate and far-reaching to you. As soon as the order is issued, it is recorded in the statewide CLETS database and accessible to all law enforcement officers in California.
By federal law (the Lautenberg Amendment) and California state law, you are automatically and forever barred from owning, possessing, purchasing, or attempting to purchase a firearm or ammunition. The law will direct you to sell or surrender any firearms you possess to law enforcement or a licensed dealer, and to file a receipt (Form DV-800) with the court to demonstrate that you have done so.
The collateral consequences of a restraining order can be immense and impact your employment, particularly where your occupation may require a security clearance or where you work with others. It may affect professional licenses and, in the case of non-citizens, may generate severe issues with immigration status. Most importantly, breaking the order, however insignificant you feel, is a crime.
One text message, a coincidental presence at the same grocery store, or requesting a friend to forward a message are all breaches of Penal Code 273.6. A guilty verdict in this misdemeanor may result in one year of county jail and massive fines. If you break the order and inflict an injury, the prosecution may be raised to a felony.
Defending Against an Elder Abuse Restraining Order
Getting a notification that a person wants an elder abuse restraining order against you is a severe legal occurrence. Shock, anger, and fear are normal reactions. You must move swiftly and tactfully to defend your rights and image because these orders may be pursued on false grounds, exaggeration, or misinterpretation of events.
The first thing you need to do is to read all pages of the documents you were served, and in case a TRO was issued, you should follow its terms to the letter. The second thing to do is to get ready to appear in court. This hearing is where you get to make your defense. This is because there are various common defense strategies.
False Accusations
You can even say that the accusations are not valid. To do this, you should provide your own evidence. An example is when you are accused of embezzling money, you can give bank statements and receipts, and testify that the cash was used to cover the legitimate expenses of the elder. In case of physical injury, there will be witnesses who can present an alibi or a different version of events.
Misinterpreted or Misquoted Events
The other defense is that the events have been misinterpreted or misquoted. The dynamics of the family are complicated, and an argument over the care or finances of an older person can be misunderstood and interpreted as verbal abuse.
You can give the judge the background that may prove you were not abusive, but did this out of concern. The petitioner's assertions in certain tragic situations could be due to their cognitive condition. The elder with dementia, Alzheimer's, or paranoia can remember things that are not true, or he can distort reality. This defense is sensitive and should be offered much respect, preferably with medical records or even testimony by a healthcare professional.
The Elder Acted Under the Influence
You might have to demonstrate to the court that the elder is under the influence of someone else, a sibling or some other family member. Your lawyer can help show that the elder is using the elder to score some points in an inheritance or power struggle.
Due to the high stakes, going through this process alone is not wise. The court cannot assign you a lawyer in a civil restraining order case. The best way to develop a strong defense would be to hire an experienced attorney to present your evidence appropriately and cross-examine the other side to bring up their claims.
Find a Restraining Order Lawyer Near Me
The elder abuse restraining orders are an essential tool in the legal system to ensure the safety of the seniors and the dependent adults within the community. Be it to obtain one on behalf of a loved one or to protect against false charges, the challenges of the legal procedure require professional legal advice.
The Goldman Flores Restraining Order Law Firm is the place to call in Orange County, CA, to receive dedicated and experienced legal representation. Call us at 619-943-4400 to schedule an appointment and take the first step to achieving safety and tranquility.
