Elder Abuse Restraining Orders

A restraining order is a court order. It can order the restrained person to not contact or go near you, your children, other relatives, or others who live with you; stay away from your home, work, or other places you go to a lot; move out of your house (even if you live together); and not have a gun.

You can ask for an elder or dependent adult abuse restraining order if:

  • You are 65 or older, OR
  • You are between 18 and 64 and have certain mental or physical disabilities that keep you from being able to do normal activities or protect yourself;

AND

  • You are a victim of:
    • Physical or financial abuse,
    • Neglect or abandonment,
    • Treatment that has physically or mentally hurt you, or
    • Deprivation (withholding) by a caregiver of basic things or services you need so you will not suffer physically, mentally, or emotionally.

Welfare & Institutions Code section 15657.03 allows the court to restrain any person for the purpose of preventing a recurrence of abuse if a declaration shows reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult. Unlike the civil harassment statute which requires the court to find clear and convincing evidence that unlawful harassment exists (CCP 527.6(d)), the court may grant a an elder abuse restraining order on a preponderance of the evidence. Bookout v. Nielsen (2007) 155 Cal.Appp.4th 1131. Additionally, the court in Gdowski v. Gdowski (2009) 175 Cal.App.4th 128 held that a protective order under EADACPA may be issued based on evidence of past abuse without any particularized showing that wrongful acts will continue or be repeated.

It is possible that you may qualify for an elder or dependent adult abuse restraining order AND a domestic violence restraining order (like if the person abusing you is a spouse or partner, or a child or grandchild). It is also common for someone to seek a conservatorship on behalf of another and at the same time request that the Judge issue a restraining order in the context of that process.

If someone you love needs to restrain another, but they are too frail or cognitively impaired to seek this relief themselves, you can bring the action if you are the designated power of attorney and if your power of attorney allows you to initiate or defend legal actions. Pursuant to Welfare & Institutions Code section 15657.03(a), which is the California Statute that governs Elder Abuse, a petition may be brought on behalf of an abused elder by a conservator, trustee, attorney-in-fact, a person appointed as guardian ad litem for the elder or dependent adult, or other person legally authorized to seek such relief.

The move out and the stay away orders through a conservatorship proceeding are by far the most prevalent orders I have pursued.  Recently, and unfortunately, I had to get a restraining order on behalf of my client against her daughter who through constant threats and intimation broke not her home and took her to various banks to withdraw well over $100,000.

How the process works:

Once the court issues (makes) a restraining order, it goes into a statewide computer system. This means that law enforcement officers across California can see there is a restraining order in place. If there is serious violence an emergency order can be obtained. This order will stay in effect for 7 days until there is hearing on the permanent restraining order.  This type of emergency order is not available for financial abuse. The best way to proceed if there is such abuse and it needs to be addressed quickly is to file for an emergency temporary conservatorship. This is not to say that a restraining order in such circumstances cannot be had. Indeed, I have gotten a restraining order where an older adult was being fleeced by an ingénue, but that was a longer process after the temporary restraining order was issued. To get a more permanent order, you must ask the court for a temporary restraining order (also called a “TRO”) which lasts about 20 days until there is a hearing on the permanent restraining order which will last about 5 years until it has to be renewed.

If the person to be restrained violates the restraining order, he or she may go to jail, or pay a fine, or both.

The emergency protective order starts right away and can last up to 7 days. The judge can order the abusive person to leave the home and stay away from the victim for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.

When people ask for an elder or dependent adult abuse restraining order in court, they have to file court forms telling the judge what orders they want and why. What happens after that varies a little from court to court, but the general steps in the court case are:

  1. The person wanting protection (or a court-approved guardian or conservator of the protected person) files court forms asking for the restraining order. There is NO fee to file.
  2. The judge will decide whether or not to make the order by the next business day. Sometimes the judge decides sooner.
  3. If the judge grants (gives) the orders requested, he or she will first make “temporary” orders that only last until the court date. The court date will be on the paperwork. These temporary orders can include issues like:
    • Ordering the restrained person to stay away from the protected person (and other protected people);
    • Ordering the restrained person not to have any contact with the protected person (and other protected people); and
    • Ordering the restrained person to leave the home if he or she lives with the protected person.
  1. The person asking for protection will have to “serve” the other person with a copy of all the restraining order papers before the court date. This means that someone 18 or older (NOT involved in the case) must hand-deliver a copy of all the papers to the restrained person.
  2. The restrained person has the right to file an answer to the restraining order request, explaining his or her side of the story.
  3. Both sides go to the court hearing.
    • If the protected person does not go to the hearing, the temporary restraining order will usually end that day and there will NOT be a restraining order.
    • If the restrained person does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account.

While you do not “need” a lawyer, the court process can be confusing and intimidating. Both people will have to see each other in court, and both will have to tell the judge details of what happened in a public courtroom. Having a lawyer can help make the process easier to handle.

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