Elder and Dependent Abuse Restraining Orders

Restraining Orders for  Elder & Dependent Abuse

Protecting Seniors and Dependents From Abuse at Home or in Care Settings

Although there is no national reporting system for tracking the prevalence of elder abuse, the National Center on Elder Abuse estimates that between one and two million people over the age of 65 suffer a form of abuse that includes exploitation, injury or other forms of mistreatment by a caregiver. Elderly family members and disabled adults can be especially susceptible to mistreatment, acts of abuse or neglect. The high cost of caring for an adult who needs in-home care or the more intensive care provided by a skilled nursing facility often strains the financial ability of elderly or disabled individuals, families and public health providers to ensure quality caregivers in a safe environment. Perpetrators of elder abuse (also called “senior abuse”) typically are caregivers, family members, nursing home employees and others who exploit the vulnerability caused by Alzheimer’s disease, dementia and other debilitating age-related conditions and disabilities.

Law Enforcement Imposed Emergency Protective Orders (EPOs)

If you are concerned about the safety or well-being of your loved one, you may also wish to contact Adult Protective Services (APS) which can investigate complaints of abuse and exploitation of seniors. Under California law, abuse of elders over the age of 65 constitutes a criminal offense punishable by both incarceration and fines. When an elderly person is subject to immediate danger, law enforcement officers can issue an Emergency Protective Order (EPO).

While an EPO can be obtained 24 hours a day from a police officer, the duration of the protective order is only 5 court days or a maximum of seven court days so it is important to seek immediate legal advice to have a petition filed for Bay Area Elder Abuse Restraining Orders before the Emergency Protective Orders expire. Restraining Order Attorney, Lucy S. McAllister, can prepare your petition for restraining orders, represent you in court and provide guidance regarding access to resources for abused or neglected seniors that may furnish emergency housing, food and access to medical care. Ms. McAllister has over 25 years of experience as a passionate advocate for victims of elder abuse in all forms that include physical, emotional and financial abuse as well as neglect by a caregiver.

California Statutes Providing Protection from Elder Abuse in the Bay Area

There are protections provided to elderly individuals in the California Penal Code as well as protections in the form of restraining orders that may be obtained in a civil court. We have provided an overview of these statutory protections below:

Basis for Protection for Criminal Violations [PC Section 368]: If an individual causes or permits a person who is dependent based on age or disability to suffer, or inflicts unjustifiable pain or mental suffering, or exercising care or custody of the elderly or disabled person willfully causes or permits injury, or willfully causes the elderly individual’s health to be endangered may be convicted of a misdemeanor or felony depending on the circumstances. A person who financially exploits an elderly person through theft or embezzlement of the elderly person’s property also may be prosecuted under this provision. False imprisonment of an elderly individual by use of fraud, deceit, violence or menace also constitutes a violation of this section of the California Penal Code.

Civil Restraining Orders [WIC Section 15657.03] states “While you should request an Emergency Protective Order (EPO) form a law enforcement officer if you or an elderly loved one faces immediate danger, you also should seek prompt legal advice regarding application for a Bay Area Elder Abuse Restraining Order because the EPO will expire within 5-7 days.”

This type of restraining order may be granted to the victim of any of the following forms of elder abuse:

  • Neglect, isolation or abandonment
  • Physical or financial abuse
  • Denial or deprivation of goods and services needed to meet basic needs and prevent physical, mental or emotional suffering or injury
  • Conduct that will cause physical pain or mental suffering

The request for restraining orders may be brought by the elderly person or dependent adult as well as a conservator or agent under a power of attorney with authority to act on behalf of an elder abuse victim. The court can grant an ex parte (emergency) Temporary Restraining Order (TRO) upon the same day the paperwork is submitted or no later than the next court day. The court will also schedule a hearing on whether to grant permanent restraining orders within 21 days (25 days under certain circumstances) where Ms. McAllister can appear and present evidence to establish an elderly or disabled adult’s need for protective orders.

Injunctions and Protective Orders That May Be Granted to Protect Abused Seniors

If the perpetrator is an immediate family member, spouse, current or former paramour or other parent of a child, the victim of elder abuse may have the option of seeking a Domestic Violence Restraining Order. San Francisco Elder Abuse Restraining Order Attorney Lucy S. McAllister can advise your regarding which option is preferable in your situation. Depending on the specific facts and circumstances of your case, the court may grant the following forms of relief when imposing an Elder Abuse Domestic Order:

  • Personal Conduct Orders: These orders will prohibit the other party from molesting, harassing, abusing, striking, threatening, stalking, intimidating, destroying property, calling, sending messages or otherwise contacting the other party.
  • Stay Away Orders: The court can order that the other party stay a certain distance away from your person, home or work.

Residential Exclusion: Depending on the specific facts, the court can order that the protected party be granted exclusive use of the residence. The court must find that the party who will have exclusive use of the home possesses a legal right to occupy the home, suffered assaults or threatened assaults and faces the risk of emotional or physical harm without such an order.

  • Firearm Prohibitions: Except in cases involving exclusively financial abuse, the party subject to the restraining order must relinquish any firearms and may not possess or own firearms while the restraining order is in effect.

When a dependent adult or elderly person is subject to abuse or neglect, Lucy S. McAllister, an experienced San Francisco Elderly Restraining Order Attorney works aggressively to obtain orders that provide a safe environment for her clients whether they reside in their own home, the home of another or a nursing home facility. Ms. McAllister also represents disabled persons who are subject to abuse because of a physical or mental disability. Over 25 years of experience and more than two hundred fifty California Supreme Court trials has allowed Ms. McAllister to build a reputation for protecting victims of abuse throughout the Bay Area.

Lucy S. McAllister J.D. is an impassioned advocate for the safety of elder abuse victims. We offer a confidential consultation in our conveniently located San Francisco and San Jose office locations so that we can explain your options and the court process involved in requesting protective orders for elderly abuse victims.

We encourage you to schedule an initial consultation by contacting us at (415) 939-9396 (San Francisco) or (408) 947-5946 (San Jose) or toll free at (877) 280-9944.

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