Preserving Evidence is Critical to Stopping Abuse
When confronting instances of financial elder abuse – one of our nation’s fastest-growing forms of exploitation – estate planners, fiduciaries, and families must know the criticality of preserving evidence, not only to stop the abuse but to build a strong case for recovery.
We discuss evidence preservation here. For our list of red flags, see Part 1.
Once abuse is suspected, preserving evidence is paramount and demands immediate attention, as California courts require clear and convincing evidence to establish civil elder abuse claims. Here are some of the immediate actions necessary to protect elderly people in these unfortunate situations:
- Secure Financial Records – Obtain bank statements, canceled checks, and wire transfer logs. Request audit trails from financial institutions showing who accessed accounts and when.
- Preserve Digital Evidence – Save emails, texts, and voicemails that show coercion or fraud. Screenshot suspicious online transactions and maintain metadata (timestamps, IP addresses).
- Document Testator Capacity – If cognitive decline is a factor, secure medical evaluations and contemporaneous notes from physicians. Keep copies of prior estate planning documents to show baseline intent.
- Engage Experts – Forensic accountants can trace funds and identify patterns of exploitation. Digital forensic specialists can recover deleted emails or encrypted communications.
Noteworthy California Cases
Misuse of Power of Attorney
In Estate of Ashlock (2018) 25 Cal.App.5th 963, the California Court of Appeal invalidated trusts and a will created under suspicious circumstances, finding they were the product of undue influence, lack of capacity, and forgery. The decedent’s partner, acting under a power of attorney, breached fiduciary duties and committed financial abuse by wrongfully taking property worth $5.1 million. The court ordered recovery of the property, imposed double damages under Probate Code §859 totaling $10.3 million, and awarded $1.8 million in attorney fees. This case highlights the importance of documenting transactions and fiduciary duties.
Real Estate Exploitation
In Bounds v. Superior Court (2014) 229 Cal.App.4th 468, the court held that claims for undue influence and financial elder abuse could proceed where evidence showed coercion in property transfers. The decision emphasized that such claims are viable even without direct physical threats when there is proof of pressure or manipulation affecting a vulnerable person’s decisions. Preserved emails and text messages were pivotal in establishing intent and coercive conduct, highlighting the importance of digital evidence in modern probate litigation.
Protections Strengthening
Building on Ashlock and Bounds, California courts have continued to strengthen protections against undue influence and financial elder abuse in probate and civil contexts. As examples, recent cases have reinforced the severe consequences for wrongful property transfers in probate disputes, emphasized accountability for coercive conduct in estate administration, and declared that liability can arise even when the wrongdoer is not in a direct contractual relationship with the elder. Worth noting is the willingness of courts to impose enhanced remedies, including double damages and attorney fees.
Legislation
In addition to judges, the state’s legislators are bolstering protections for vulnerable people. California’s AB 1243, codified in Welfare & Institutions Code §15657.03, significantly broadened who can seek protective orders in cases of elder or dependent adult abuse. Previously, only the victim could petition for a restraining order. Under AB 1243, adult children, siblings, fiduciaries, and other “interested parties” now have standing to act on behalf of the elder. The law also introduced anti-isolation orders, allowing courts to prevent abusers from cutting off elders from family and friends, and authorized findings that debts were incurred through financial abuse—creating a basis for recovery.
This is a powerful tool to facilitate early intervention in abuse scenarios, even before probate litigation begins. Attorneys should advise clients to preserve digital evidence (emails, texts, financial records) and consider using these expanded remedies to protect vulnerable adults and secure assets before they disappear.
A Societal Challenge
Financial elder abuse is not just a legal issue—it’s a societal challenge that demands vigilance and proactive planning. In California, where seniors hold significant wealth and property, the stakes are high. By spotting red flags early and preserving evidence meticulously, families and estate planners can protect vulnerable adults and ensure justice when exploitation occurs.
