California Partition Law Blog
The purpose of this article is to explain what an elder abuse restraining order is and why it is important. This type of restraining order prevents abuse against elder or dependent adults. (Cal Wel. & Inst. Code § 15657.03(a)(1).) The requirements to obtain this restraining order are laid out in the California Welfare and Institutions Code.
What are the requirements to get this type of restraining order?
To be eligible for this type of restraining order the person seeking it must be 65 years or older to qualify as an “elderly person.” To qualify as a “dependent adult” the person must be between the ages of 18 and 64 and have physical or mental limitations which restrict their ability to do normal activities and protect their rights. This applies whether they live independently or in an inpatient 24-hour health facility. For example, the facility could be a nursing home. This type of restraining order similarly applies if the diminished physical or mental ability is due to their age. (Cal Wel. & Inst. Code § 15610.23) Someone can file for a restraining order on behalf of an abused elder or dependent adult who has legal authority to seek such relief. This could be as their conservator, trustee, guardian, or acting in power of attorney. (White v. Davis (2023) 87 Cal.App.5th 270, 285.)
This restraining order is meant to prevent someone hurting or taking advantage of the person. It may also protect against someone trying to steal money or assets. (Newman v. Casey (2024) 99 Cal.App.5th 359, 376-377.) The abuse which makes someone eligible for this restraining order includes physical abuse neglect, abandonment, isolation, abduction, or other treatment causing physical harm or pain or mental suffering. (Cal Wel. & Inst. Code § 15610.07(a))
The court will grant the restraining order based on a preponderance of the evidence showing the alleged abuse or harm occurred. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1138.) Showing that past abuse occurred is sufficient and does not require a victim to show abuse would continue or be repeated. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.)
How to get and enforce an elder or dependent adult abuse restraining order?
This type of restraining order can come in the form of a temporary ex parte order or a final order. This is done by filing a form in court in the applicable county. (Elmassian v. Flores (2021) 69 Cal.App.5th Supp. 1, 17.)
A temporary ex parte restraining order means the judge will decide the order on the same day it is filed. (Cal Wel. & Inst. Code § 15657.03(e), (f).) Because it is “ex parte” the abuser does not need to appear. When it is granted, the restraining order will last until the hearing date for a final order which takes place between 21 and 25 days later. These orders must be properly and personally served to the abuser, also known as the respondent. (Newman v. Casey (2024) 99 Cal.App.5th 359, 380.)
The order must be followed or else the abuser will be arrested and charged with a crime. If the abuser does not agree to the restraining order, they must go to the hearing to contest it. At the final hearing, the judge will continue or cancel the order. If a final order is granted it can last for up to five years. (Cal Wel. & Inst. Code § 15657.03(i)(1))
A judge may also issue a permanent order. This type of permanent order may be renewed for another three years or permanently. (Gordon B. v. Gomez (2018) 22 Cal.App.5th 92, 98-99.)
What protections do these restraining orders provide?
A temporary ex parte order or a final order will prohibit the abuser from harassing, intimidating, attaching, stalking, and telephoning as specified in the request for the order. (Cal Wel. & Inst. Code § 15657.03 (a) (3) (C)) The order can also prohibit the abuser from destroying personal property or making the abuser move out of their home. (Cal Wel. & Inst. Code § 15657.03(b)(3), (d).)
These restraining orders also protect against financial abuse when an abuser takes or obtains real or personal property for wrongful use or through undue influence. (White v. Wear (2022) 76 Cal.App.5th 24, 35.) Separately, the judge can order an abuser to undergo counseling or other behavioral health treatment. (Cal Wel. & Inst. Code § 15657.03(z)(1)) These protections may also apply to the victim’s family or household members if there is “good cause” suggesting they should. (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 522.)
Examples
For example, “Julie,” age 70, is being abused by her grandson “Shawn” financially. Shawn lives with Julie in her home and is trying to claim rights to the home and get Julie to give it up to him. Julie knows this is because he is not meant to receive the house when she dies. This also means Julie feels unsafe in living with Shawn because she feels like he is always looking for a way to get her to give him the house. Julie files a temporary restraining order with the court which it grants on the same day. This requires Shawn to move out of the home. Shawn attempts to unsuccessfully contest the restraining order when the hearing date arrives. A permanent restraining order is granted for Julie which means Shawn cannot live with Julie. Julie could also specify he cannot reach out to her or talk to her about the house. The restraining order would allow Julie to be protected against harassment or other conduct Shawn might have previously engaged in to try to get her to give up the house.
For example, Shawn may try to claim ownership because he previously lived in the house. Shawn might take legal action to quiet title or get money out of selling the house in a partition action, Julie would have her restraining order to show Shawn’s intent and lack of claim to her house.
Conclusion
A restraining order can be sought by an eligible elder or dependent adult or on their behalf against an abuser. This restraining order protects against any abuse or harm specified by the victim. Specifically, this restraining order can protect against an abuser trying to take control of or misuse the victim’s real property. Elder abuse or other forms of abuse may factor into disputes about real property.
The Underwood Law Firm has a team of experienced lawyers who can help resolve your real property issues as they relate to partition and help you pursue solutions to ensure your property rights are protected. We are here to help.