How do I Know if I am an Elder or Dependent Adult?
California law defines “elder” as anyone 65 years or older. California law defines “dependent adult” as anyone 18 years or older with a mental or physical disability that significantly impacts their ability to perform daily tasks.
Can I File on Behalf of Someone Else?
Yes. If you are the caretaker of an elder or dependent adult who is being abused, you can file an “Request for Elder or Dependent Adult Abuse Restraining Orders” on their behalf. This includes conservators and those with power of attorney. The court may require you to provide
documentation that you are allowed to make legal decisions on this person’s behalf. If you do not fit into one of these categories, but still wish to file an Elder or Dependent Adult Abuse Restraining Order on behalf of someone else, you may petition to court to appoint you as “guardian ad-litem” of the elder or dependent adult you wish to help.
What Should I do If I am an Elder or Dependent Adult Who is being Abused?
If you are in immediate danger, call 911 or seek help from your local law enforcement agency. Under California law, abuse of an elder or dependent adult includes:
- Physical Abuse
- Financial Abuse
- Mental or Emotional Abuse
- Neglect
- Abandonment
- Abduction
- Isolation
- Deprivation of goods or services you need to avoid harm or suffering by a caregiver
If you wish to restrain your abuser from contacting your or coming near you, you may file a Request for Elder or Dependent Adult Restraining Orders. If you are unable to prepare your own paperwork or go to court on your own, a caretaker (such as a conservator or power of attorney)
may complete and file the request on your behalf. Completing a Request for Elder or Dependent Adult Abuse Restraining Orders will require you to compile a statement and evidence to show the court why you need to be protected.
Once your paperwork is complete and your evidence is compiled you can file your request with the court. This is an all-day process, as you will be asked to wait while a judge reviews your request and determines if a Temporary Restraining Order needs to be issued in your case. Once you have a ruling on a Temporary Restraining Order, the clerks will provide you with a hearing date.
Before the hearing date, the person you wish to be retrained (the “Respondent”) must be personally served with the Notice of Hearing, the Request for Elder or Dependent Adult Abuse Restraining Orders, and the Temporary Restraining Order (if issued). This can be done by any person over the age of 18 who is not you or a part to the case. Alternatively, Elder or Dependent Adult Abuse Restraining Orders qualify for free service through the San Diego County Sherriff’s Department. You may request that the Sherriff’s Department send a Deputy to serve your paperwork on the Respondent.
At the hearing you will be asked to provide evidence and testimony as to why you need the protection of an Elder or Dependent Adult Abuse Restraining Order. You must convince a judge by meeting a standard of proof known as “preponderance of the evidence.” Due to the severity of
circumstances surrounding Elder or Dependent Adult Abuse Restraining Orders, this is a much lower standard compared to other Restraining Orders. If the judge grants your request a Permanent Restraining Order will be issued for up to five years. This duration is determined at the discretion of the court.
If you or an elder/dependent adult in your care is being abused, we can help you prepare and litigate a case for an Elder or Dependent Adult Abuse Restraining Order.
What Should I do if I was Served with an Elder or Dependent Adult Abuse Restraining Order?
As with other Restraining Orders, if you were served with a Request for Elder or Dependent Adult Abuse Restraining Orders where the Temporary Restraining Order was granted, you must immediately surrender, store, or sell any firearms, firearm parts, or ammunition that you own, possess, or have access to. Once this is done you must file a “Receipt for Firearms and Firearm Parts” with the court. As of January 1, 2024, all persons prohibited from owning, possessing, or accessing firearms by California law, is also prohibited from owning, possessing, or accessing body armor. If you own, possess, or have access to any body armor it must also be surrendered, stored, or sold. For the duration of any Restraining Orders against you, you will not be able to purchase any new firearms, firearm parts, ammunition, or body armor.
If you wish to provide the court with a statement and/or evidence before the hearing, you may file a “Response to Request for Elder or Dependent Adult Abuse Restraining Orders.” This will give you the opportunity to deny the allegations against you or to justify your actions. You may also attach any evidence you want the judge to see to the response. Before the hearing, you must serve the Petitioner with copies of everything you provided to the court. This can be done by any person over the age of 18, who is not a party to the case, by mail or personal service. You may
not violate any Temporary Restraining Orders to serve the Petitioner.
At the hearing you will have the chance to present the judge with your testimony and evidence. After hearing from both sides, the judge will determine if an Elder or Dependent Adult Abuse Restraining Order needs to be issued. While the burden of proof is on the Petitioner, the standard
is much lower than it is in other restraining order hearings. However, this does not mean that the Petitioner will be granted their order.
If an Elder or Dependent Adult Abuse Restraining Order is issued against you, it will last for a duration of up to five years. While the order is in effect you must abide by all the terms of the order. Failure to abide by the terms of a Restraining Order may result in criminal prosecution.
If you have been served with a Request for Elder or Dependent Adult Abuse Restraining Orders we can help you prepare a response and defend you against the allegations in court.
Do I Need an Attorney?
Elder or Dependent Adult Abuse Restraining Orders are dealt with in civil court. While there is no requirement to have an attorney in civil court, the court system and procedure is complex and can be scary to some people. An attorney can help you navigate all the complexities of the court and help you litigate your case in hearings.
With nearly 30 years of experience, Attorney Timothy F. Riley is extremely knowledgeable about court procedure and litigating in a courtroom. At Timothy Riley Law, we strive to put our clients first and make their experience with the Restraining Order process as easy as possible. Contact us today and let us help you in this difficult time.
