United States: California Creates New "Anti-Isolation" Restraining Orders For Elders And Dependent Adults
Part 1: An Overview of Existing Law and Impact of the New Legislation

Highlights

California Gov. Gavin Newsom on Sept. 23, 2021, signed Assembly Bill (AB) 1243, a bill which creates a new class of "anti-isolation" restraining orders in the state. These new anti-isolation restraining orders, which go into effect on Jan. 1, 2023, will be transformative in the fight against elder abuse and will also create a dramatic new landscape for trust and estate litigators.

Under AB 1243, for the first time, family members and friends will be able to bring a petition seeking an order to enjoin the alleged isolation of an elder or dependent adult under the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act). Previously, only the elder or dependent adult, their conservator, trustee or an attorney-in-fact acting within their authority were able to seek protection under the Elder Abuse Act.

In this first of a series of Holland & Knight alerts, the authors provide an overview of existing law as it relates to elder abuse restraining orders and the impact of the new legislation on this existing legislative scheme.

Overview of Existing Law Related to Elder Abuse Restraining Orders

Under existing California law, an elder or dependent adult who has suffered abuse, or another person who is legally authorized to seek that relief on their behalf, may seek a protective order against another person who engages in certain, prescribed types of abuse. (Welfare & Institutions Code, § 15657.03, et seq.)

Existing law allows a party to obtain an order enjoining another party from conduct defined by statute, including "abusing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning ... destroying personal property, contacting ... or coming within a specified distance" of the elder. (Welf. & Inst. Code, § 15657.03, subd. (b)(A).)

To obtain an elder abuse restraining order, the party requesting the order is typically required to provide five days' notice to the abusing party. However, a temporary restraining order may be issued without notice for the purpose of preventing a recurrence of abuse of the elder or dependent adult, if a declaration shows, to the satisfaction of the court, "reasonable proof of a past act or acts of abuse." (Welf. & Inst. Code, § 15657.03, subds. (c)-(d).)

A restraining order is obtained by the petitioning party proving the alleged acts of abuse by a preponderance of the evidence. The prevailing party in an elder abuse action may be awarded court costs and attorney's fees. (Welf. & Inst. Code, § 15657.03, subd. (t).) A permanent elder abuse restraining order may have an initial duration of up to five years, although the statute also contains provisions for extensions and modifications/terminations of a permanent restraining order.

Rationale for AB 1243

Since its enactment in 1982, the purpose of the Elder Abuse Act has been to "protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect."¹ The focus of the act shifted from criminal enforcement to private, civil enforcement in 1991 when the legislature acted to "enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults."²

Recently, the COVID-19 pandemic and related stay-at-home orders have shined a light on the circumstances of vulnerable adults quarantined from their families and support systems for prolonged periods of time. Prior to the pandemic, typical protections against isolation included community and senior centers, libraries, support groups, banks and even some delivery services – activities and services that became difficult to access or even unavailable during the pandemic. Thus, with AB 1243, the legislature now recognizes that "one of the biggest threats to vulnerable adults' mental health, and sometimes physical health, has been isolation."

AB 1243 is designed to address the concern that elder abuse has the potential to flourish and go unchecked when an elder or dependent adult is isolated from their community or important familial and social networks. It seeks to ensure that that an abuser does not cut off relationships in an attempt to take advantage of an elder or dependent adult, or to hide abuse. Consistent with its purpose, AB 1243 expands the protections of the Elder Abuse Act by creating anti-isolation restraining orders.

AB 1243 also expressly states that no affirmative order is required for an elder or dependent adult to engage in desired visitation. Thus, the rational is to expand protections by this particular new means of abuse prevention and it is not intended to restrict or limit the rights of elders or dependent adults.

Impact of AB 1243 on Existing Law

As discussed, the new law permits a petition for relief to be brought on behalf of the vulnerable adult to enjoin a perpetrator from isolating them from contact with a particular interested party – an anti-isolation restraining order. Isolation is defined as recurring acts preventing the vulnerable adult from contact with a particular person. It expressly includes remote visitation such as telephone and online contact.

Previously, some family members or friends would not have had standing to petition for a restraining order on behalf of the elder or dependent adult. In addition to those previously authorized to bring elder abuse restraining orders, AB 1243 authorizes a new category of interested party who may petition on behalf of an elder or dependent adult for the purpose of obtaining an anti-isolation restraining order. For this purpose, the definition of interested party is expanded to include someone with a preexisting relationship with the vulnerable adult. A person can demonstrate their requisite relationship by description of involvement with the elder or dependent adult, time spent together or any other proof that they spend time with the elder or dependent adult. Thus, for the first time, a friend who is able to establish themselves as an interested party will be able to bring a petition to enjoining conduct preventing their visitation with the elder or dependent adult.

To obtain an anti-isolation restraining order, the petitioner must show, by preponderance of the evidence, that:

1. the party against whom the protective order is sought repeatedly prevented contact by the interested party
2. the elder or dependent adult expressly desires contact with the interested party, and
3. the isolating acts are not in response to actual or threated abuse or the elder or dependent adult's desire not to see the interested party

The second element may prove difficult to show in some situations, especially if the elder or dependent adult does not have the capacity or ability to clearly express their desire to have or to not have contact with the interested party. To this end, AB 1243 directs that the court "shall use all means at its disposal to determine whether the elder or dependent adult desires contact with the person and has capacity to consent to that contact."

AB 1243 does not apply in a variety of situations, including when an elder or dependent adult resides in a long-term care facility (as defined in Welf. & Inst. Code, § 9701) or residential facility (as defined in Health & Safety Code, § 1250 subds.(a), (b) or (f)) or if they are a patient of a health care facility (as defined in Health & Safety Code, § 1250). A resulting anti-isolation restraining order is exempt from required reporting to the U.S. Department of Justice (under Family Code, § 6380) if the conduct did not include any other form of abuse, such as threat or force.

Future Application of AB 1243

In an upcoming alert, Holland & Knight attorneys will analyze the likely future impact of the bill on trust and estate litigation matters, as well as provide relevant considerations in bringing such actions.

Footnotes

¹ Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1203-1204.

² Delaney v. Baker (1999) 20 Cal.4th 23, 33.

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