RESTRAINING ORDERS
Elder abuse and negligence are unfortunate realities that can occur in various settings, including homes, hospitals, and care facilities. At our practice, we specialize in assisting individuals who have experienced elder abuse and negligence in Nursing Homes, Crisis Management situations, Ombudsman Referrals, Injuries, Physical Injuries, Emotional or Behavioral Changes, End-of-Life Decisions, Life Care Planning, and cases involving Mental Health Incompetencies. Our dedicated focus is on advocating for the rights of victims in cases of abuse, neglect, injury, and medical malpractice.
Abuse and negligence can manifest in diverse environments, such as home health agencies, assisted living facilities, residential care facilities, skilled nursing facilities, and hospitals, and during transportation, treatment, or examinations at medical offices.
Understanding Elder or Dependent Adult Abuse:
The law defines elder or dependent adult abuse as:
Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or any behavior causing physical harm, pain, or mental suffering.
Deprivation by a caregiver of essential things or services necessary for the elder or dependent adult to avoid physical harm or mental suffering.
The criteria for elder or dependent adult status are:
Someone aged 65 or older.
A dependent adult, aged 18 to 64, with mental or physical disabilities hindering normal activities or self-protection.
Explore the legal aspects in Welfare and Institutions Code section 15610.07.
If you are an elderly person or a dependent adult facing abuse or control by family members, spouses/partners, former spouses/partners, or caregivers, seeking guidance from a counselor can be beneficial, even if you're uncertain about pursuing legal protection. Discover counseling services and resources in your county.
Important Legislative Update:
The amended Code of Civil Procedure § 377.34 now allows damages recovery for a decedent's pain, suffering, or disfigurement. This applies to actions initiated by the decedent's personal representative or successor in interest, granted preference under Code of Civil Procedure section 36 before January 1, 2022, or filed between January 1, 2022, and January 1, 2026. Plaintiffs recovering under this statute are required to report their awards to the Judicial Council, facilitating transparency through information dissemination to the Legislature.
Indicators of Nursing Home Abuse or Caregiver Neglect may manifest through:
Mental Status Changes:
Observable shifts in cognitive function or emotional well-being.
Frequent Falling:
Repeated instances of the resident experiencing falls.
Unsanitary Environment:
The presence of conditions compromising cleanliness and hygiene.
Bedsores, Wounds, Infestations, Bruising:
Physical signs such as bedsores, wounds, insect infestations, or unexplained bruising.
Weight Changes:
Noticeable fluctuations in the resident's weight.
Decline in Functioning or New Condition:
Observable deterioration in the individual's overall functioning or the emergence of new health issues.
Frequent ER Visits:
Repeated visits to the emergency room due to health concerns.
Change in General Appearance:
Notable alterations in the resident's overall appearance and well-being.
Financial Abuse or Disappearance of Belongings:
Suspected mishandling of finances or unexplained disappearance of personal belongings.
Complaints of Lack of Attention:
Verbal expressions from the resident regarding perceived neglect or lack of care.
These signs serve as potential red flags for nursing home abuse or caregiver neglect, and it is crucial to promptly address any concerns to ensure the well-being and safety of the residents. If you suspect any form of mistreatment, reporting and seeking appropriate assistance are essential steps in addressing the situation.
Elder or Dependent Adult Abuse Restraining Orders – Your Right to Protection
You have the right to request an elder or dependent adult abuse restraining order if:
You are 65 years of age or older, OR
You fall within the age range of 18 to 64 and experience certain mental or physical disabilities that hinder your ability to perform normal activities or protect yourself; AND
You are a victim of:
Physical or financial abuse,
Neglect or abandonment,
Treatment that has caused physical or mental harm, or
Deprivation (withholding) by a caregiver of essential things or services necessary to prevent physical, mental, or emotional suffering.
It's important to note that you might qualify for both an elder or dependent adult abuse restraining order and a domestic violence restraining order, particularly if the person causing harm is a spouse, partner, child, or grandchild. If this situation applies to you, seek guidance from a lawyer or legal aid agency to determine the best course of action for your specific circumstances.
What a Restraining Order Can Accomplish
A restraining order, issued by the court, holds the power to direct the restrained person to:
Refrain from contacting or approaching you, your children, other relatives, or individuals sharing your residence.
Maintain a distance from your home, workplace, or frequented locations.
Vacate your residence, even if you currently live together.
Prohibit the possession of a firearm.
Upon issuance, the restraining order is recorded in a statewide computer system, ensuring that law enforcement officers throughout California are aware of its existence.
Impact on the Restrained Individual:
For the person subjected to the restraining order, the consequences can be significant:
Restricted Access: The individual may be restricted from specific places or activities.
Housing Displacement: There may be a requirement to relocate from their current residence.
Firearm Ownership: Generally, ownership of a firearm is prohibited. Any existing firearms must be surrendered, sold, or stored, and the individual is prohibited from purchasing a gun during the restraining order's duration.
Immigration Status: The restraining order may influence the individual's immigration status. Concerns regarding this matter should be discussed with an immigration lawyer for personalized advice.
Legal Consequences: Violating the restraining order could lead to incarceration, fines, or a combination of both.
It is crucial for both parties involved to understand the implications and adhere to the terms outlined in the restraining order.
An Emergency Protective Order (EPO) is a specific type of restraining order that only law enforcement can request by contacting a judge. Judges are available around the clock to issue EPOs, allowing police officers responding to serious incidents of violence or threats to seek immediate protection at any time of day or night. In cases of elder and dependent adult abuse, it is possible to request an EPO, except in instances solely involving financial abuse.
The Emergency Protective Order takes effect immediately and can last for up to 7 days. During this time, a judge may instruct the alleged abuser to vacate the residence and stay away from the victim for the specified duration. This provides the victim with the necessary time to initiate the legal process and file for a Temporary Restraining Order (TRO).
Temporary Restraining Order (TRO) Overview
When pursuing a domestic violence restraining order, you must complete paperwork detailing the events and reasons for seeking protection. If the judge deems it necessary, they will issue a Temporary Restraining Order (TRO). Typically, TROs have a duration of about 20 to 25 days, extending until the scheduled court hearing date.
"Permanent" Restraining Order (Restraining Order After Hearing)
Upon attending the court hearing scheduled for the TRO, the judge may grant a "permanent" restraining order. Although termed "permanent," these orders usually last up to 5 years. Following this period or when the order expires, individuals can request a new restraining order to maintain ongoing protection.
Criminal Protective Order or "Stay Away" Order
In cases involving violence or elder and dependent adult abuse, the district attorney may file criminal charges against the alleged abuser, initiating a criminal court case. It is common for the criminal court to issue a Criminal Protective Order, also known as a "Stay Away" Order, against the defendant throughout the criminal proceedings and, if the defendant is found guilty or pleads guilty, for an additional 3 years after the case concludes.
When individuals seek an elder or dependent adult abuse restraining order in court, they need to complete court forms outlining the desired orders and providing reasons. Although the specific steps may vary slightly between courts, the general process includes:
Filing for Protection: The person seeking protection or a court-approved guardian submits court forms for a restraining order. No filing fee is required.
Judge's Decision: The judge decides on the order's validity by the next business day, sometimes even sooner.
Temporary Orders: If the judge grants the orders, temporary measures are put in place until the court date. These may include instructing the restrained person to stay away from the protected individual, prohibiting contact, or requiring the restrained person to leave the shared residence.
Serving the Papers: The person seeking protection must serve the restrained person with copies of the restraining order papers before the court date. This involves someone aged 18 or older, not involved in the case, hand-delivering the documents.
Responding to the Order: The restrained person has the right to file an answer, presenting their side of the story.
Court Hearing: Both parties attend the court hearing. If the protected person is absent, the temporary restraining order may end that day. If the restrained person doesn't attend, their perspective may not be considered.
Judge's Decision: At the hearing, the judge decides whether to continue or cancel the temporary restraining order. If extended, the "permanent" order can last up to five years.
For more information, visit California Courts.
Mandated Reporter Responsibilities
Any individual assuming responsibility for an elder or dependent adult's care is a mandated reporter. This includes administrators, supervisors, licensed facility staff, caregivers, health practitioners, clergy members, and certain agency employees. Mandated reporters must report observed or suspected incidents of abuse to Adult Protective Services (APS) or local law enforcement.
Services Offered by Adult Protective Services
Adult Protective Services provides a range of services, including investigations, needs assessments, social work activities, tangible resources like food and shelter, and the use of multidisciplinary teams. They operate a 24-hour reporting system.
Understanding Domestic Violence
Domestic violence encompasses abuse or threats between individuals in an intimate relationship, whether married, domestic partners, dating, cohabiting, or sharing a child. Abuse can be physical, sexual, or non-physical, involving threats, harassment, stalking, or emotional harm. Physical abuse extends beyond hitting to include various forms of aggression, such as kicking, shoving, or harming family pets. It's essential to recognize that abuse in domestic violence can be verbal, emotional, or psychological, not limited to physical harm.
For additional details, refer to California Courts.
The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), outlined in Welfare and Institutions Code Sections 15600–15675, mandates the reporting of elder abuse to an Adult Protective Services (APS) agency or local law enforcement agency. In cases where the abuse occurs in a long-term care facility, reporting can also be directed to the local ombudsman or law enforcement. EADACPA facilitates the subsequent investigation of these reports.
EADACPA defines an "elder" as an individual residing in California who is 65 years of age or older, as per Welfare and Institutions Code Section 15610.27. The term "Abuse of an elder or dependent adult" encompasses various forms of mistreatment, including:
Physical abuse, neglect, abandonment, isolation, abduction, or other treatment resulting in physical harm, pain, or mental suffering.
The deprivation by a care custodian of goods or services necessary to prevent physical harm or mental suffering.
Financial abuse, as specifically defined in Welfare and Institutions Code Section 15610.30, which includes acts that exploit or wrongfully take an elder or dependent adult's property or resources.
This legislation is integral in safeguarding the well-being of elders and dependent adults, establishing clear guidelines for reporting and investigating instances of abuse to ensure the protection and welfare of vulnerable individuals.