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Elder Abuse Defense Lawyer
California Penal Code 368 PC
A criminal threat can be a serious charge because there is a threat of violence, and the justice system is always concerned with tracking and restraining individuals who may show a potential for violence. For that reason, a criminal threat is treated as a "strike" under California 3 strikes laws. Please don't be afraid to call us for help.
What is Elder Abuse?
Elder abuse can be financial, physical or psychological, and the consequences for a conviction are severe. But in spite of such devastating consequences, most elder abuse goes unreported. Elder abuse is the neglect, exploitation or “painful or harmful” mistreatment of anyone who is 65 or older (or anyone aged 18 to 64 who falls under the legal definition of a “dependent” adult). It can involve physical violence, psychological abuse, isolation, abandonment, abduction, false imprisonment or a caregiver’s neglect. It also includes the unlawful taking of a senior’s money or property.
Emergency Protective Order to Stop Elder Abuse
If you are in danger, call 911. When the police arrive, calmly explain the situation. In both elder abuse and domestic violence cases, the officers can contact an on-call judicial officer and issue an immediate Emergency Protective Order (EPO). This legally prohibits an abuser from contacting you or coming near you. The EPO is effective for five court days or seven calendar days. Then, to extend the order, you can seek a Temporary Restraining Order (TRO). An attorney can help you fill out the paperwork, and the whole process will take less than an hour. The TRO will go into effect as soon as it has been signed by a judge and delivered to the abuser. Judges routinely grant TROs that can show on face that the victim is in danger of future abuse. The TRO can be made “permanent,” which means that it will be good for up to five years and can be renewed.
Specifically in cases of elder abuse, you can seek an elder abuse restraining order. An elder abuse restraining order can prohibit the mental or financial abuse of a senior as well. As an added protection, state law allows domestic violence victims to keep their addresses confidential through the state’s Safe at Home program. This means that your home address need not appear on court papers or other official documents.
Preventing Elder Abuse
Always seek referrals and ask a lot of questions. Caregivers who provide meals and dress are not regulated by anyone. Caregivers who provide medical care, must be licensed or certified. You can hire such caregivers through a licensed home health care agency. Home health care agencies, certified nurse assistants, registered nurses, nurse practitioners and vocational nurses must be licensed or certified by the state. To locate caregiver resources in your area, call the Eldercare Locator at 1-800-677-1116 or go to www.eldercare.gov.
Types of Consumer Scams Targeting the Elderly
Americans lose billions of dollars each year in telemarketing fraud and mail scams alone, and seniors are often the victims.
Charitable Donation Cons:
Fake charities or charities run solely by individuals without legitimate infrastructure. Anyone soliciting funds for charitable purposes must register with the state Attorney General’s Office. Before donating to a charity, find out if a charity is registered, by calling 916-445-2021 or visit the website at ag.ca.gov/charities.
Credit Card Insurance and Credit Repair scams:
Credit Repair can be done only one way - painfully, overtime by being dilligent about managing your debts and paying down your outstanding liabilities. People should be wary of salespeople trying to sell unnecessary insurance to pay for any unauthorized charges made to your credit cards.
Door-to-Door or In-Person Solicitation:
If a person appears on your door step to solicit, ask to see a business permit. Most cities require one. Resist pressure to buy anything on the spot. If you do make a purchase - you have three business days to legally cancel such a contract if it was made in your home or in a temporary business place (such as a hotel room or convention center). To report a fraud, call your local police or district attorney’s office. If you are worried that your door to door sales tactics may result in fraud allegations, having a criminal defense lawyer review your sales-pitch is an excellent way to protect your business and reputation.
Financial Advisors and Investment Scams:
Given the financial crisis this country has faced one can rightly wonder if any banking instutition can legitimately protect your investment. There is risk to every investment, but you can make sure that you are not investing with the wrong people by calling the state Department of Corporations’ toll free at 1-866-ASK-CORP (275-2677) to find out more about the company and the agent. For more information on senior investment fraud, visit the website at www.corp.ca.gov (click on Seniors Against Investment Fraud).
Funeral and Cemetery Fraud:
Funeral and Cemetary pricing is ridiculous and out of controll. Watch out for high-priced sales pitches. The Consumer Guide to Funeral and Cemetery Purchases—available at no cost from the Department of Consumer Affairs’ Cemetery and Funeral Bureau (cfb.ca.gov)—details your requirements, pre-needs arrangements and what to look for in a contract. You can also call the Cemetery and Funeral Bureau at 916-574-7870 to verify a funeral establishment’s license or file a complaint.
Before hiring any home repair contractor, get more than one estimate, check references and get everything in writing. Be aware that your home cannot be used as collateral in any home improvement contract if you are 65 or older. And never pay more than the legal maximum (usually 10 percent of the repair price or $1,000, whichever is less) before the work is done. To check the contractor’s license, go to the Contractors State License Board’s website at www.cslb.ca.gov or call 1-800-321-2752.
Medicare and Medi-Cal fraud is the number one type of elder abuse in California. Never give your Medicare/Medi-Cal number to a stranger. And always check your statements to verify that you actually received the services or equipment charged to Medicare/Medi-Cal. If you suspect provider fraud, call Medicare at 1-800-633-4227. To report suspected Medicare prescription drug fraud, call 1-877-772-3379. And to report suspected Medi-Cal provider fraud, call the Bureau of Medi-Cal Fraud and Elder Abuse in the state Attorney General’s Office at 1-800-722-0432.
Living Trust Mills:
A living trust is an excellent way to protect your assets and assure a smooth transition to your heirs. However, you should beware of “trust mill” marketing schemes in which salespeople masquerade as experts in estate planning to gain your trust and confidence. Only trust a lawyer to do legal paperwork. These unqualified “experts” may be salespersons seeking your personal financial information with the ulterior motive of selling you both a living trust and an annuity, which may not be appropriate for you. (Such insurance-based products can have hidden costs and may tie up a senior’s funds for a decade or even longer.)
These tactics may violate insurance laws and laws prohibiting the unauthorized practice of law as well. Also, the California Insurance Commissioner has strict regulations regarding any senior-related certification, credential or professional designation that does not meet certain criteria.
If a person is asking you to provide bank account information in exchange for easy money - it is a scam. It can be difficult to distinguish legitimate telemarketers and e-mail solicitations from those that are not. Never provide personal information or send money to solicitors who contact you first. Turn such solicitors away immediately or at least insist on checking them out first and calling them back. Also, steer clear of any caller or mailer announcing that you have won a sweepstakes or foreign lottery and simply need to pay a “fee” or “tax” to collect your winnings. Charging a fee for collecting winnings is illegal. (Cross-border sale or purchase of lottery tickets is also illegal).
Real Estate Predatory Lending Scams:
Senior homeowners are the primary targets in many of these scams. Seniors may be lured into home equity loans that they cannot possibly repay. The interest rate and fees may be much higher than those of a standard loan—and may even be illegal. Or, the loan may require a large “balloon” payment at some point. In addition, the lender may offer misleading information (seeking to take advantage of a senior who may be facing a cash crunch). Obtaining a home equity loan may have advantages for you. Before you sign anything, however, check out the lender and make sure you fully understand the loan’s terms. And if you do get behind in your mortgage payments at some point, take action immediately. Do not, however, fall victim to a loan modification scam. Be wary of solicitors who offer to renegotiate your loan for you. Call HUD at 1-800-569-4287 for a referral to a free counselor, or call the Homeowner’s Hope hotline at 1-888-995-HOPE.
Financial or Estate Planning Services Fraud
Only trust a lawyer to provide estate planning services. California has an estate planning "specialization," which means that those attorneys have been practing for a number of years and have handled hundreds of similar estate issues. Recent changes in the law also prohibit broker-dealers and investment advisors (and their agents and representatives) from using any “senior specific” certification, credential or professional designation that could be misleading.
FREE SENIOR LEGAL SERVICES
Under the federal Older Americans Act, every county has free legal services for seniors who are 60 years old or older. The programs differ, however, and their criteria for accepting cases vary as well. Also, if you are at least 60, you may be able to get free legal advice by calling the Senior Legal Hotline at 1-800-222-1753 or by visiting the hotline’s website at seniorlegalhotline.org. (Note: In 2010, services were limited due to funding cuts.) If neither the county’s legal services program nor the hotline can assist you, ask a friend, co-worker or business associate to recommend a lawyer. Or call a State Bar-certified lawyer referral service. For an online list of certified referral services, visit the State Bar’s website at calbar.ca.gov/lrs. For a recorded message with the phone numbers of certified services in your county, call 1-866-44-CA-LAW (1-866-442-2529).
Most lawyers offer free consultations. Be sure to take advantage of that. For more information on how to find the best lawyer for your money, click here.