The California Court of Appeals affirmed the trial court’s restraining order against the appellant under the Elder Abuse Act, ruling that no adjudication of the elderly victim’s incompetence was required for such an order to be entered, and substantial evidence supported the order. Herren v. George S., A171257 (Cal. Ct. App. Mar. 3, 2025).
George S., an 86-year-old man, had two daughters, Susannah and Gabriella. Susannah was George’s trustee and attorney-in-fact. George was diagnosed with dementia in 2022. In 2023, two medical professionals determined that George did not have the capacity to make medical or financial decisions. In 2024, when Susannah was out of town, Gabriella allowed Jaime Herren, a trust and estate attorney, to meet with George at his home. Herren met with George privately after threatening his caregiver, who protested Herren’s presence, with an elder abuse charge if she did not leave the room. At the end of a private meeting with George, Herren obtained his signature on a retainer agreement even though he was legally blind, she had read aloud only the first two pages of the agreement to him, and she had to tell him where to sign. Herren then sent a demand letter for payment to the trustees of George’s trust and the law firm that had prepared it. Several days later, when Susannah asked George if he wanted to pay the $100,000 retainer, he did not remember meeting Herren and was upset that someone would ask him for so much money.
Susannah, in her capacity as George’s attorney-in-fact, sought an elder abuse restraining order against Herren under the Elder Abuse Act to prohibit her from financially abusing George and disturbing his peace. The trial court issued the restraining order after concluding that Herren had obtained a property right from George by undue influence and that she knew or should have known this would be harmful to him.
On appeal, Herren asserted that Susannah did not have the authority or standing to seek a restraining order under the Elder Abuse Act without first rebutting the presumption established by the probate code that George had capacity to make decisions such as retaining her. The court disagreed, holding that the Elder Abuse Act does not require the presumption of capacity to be rebutted before an interested person may seek protection against abuse. Thus, Susannah, George’s trustee and attorney-in-fact, had standing to seek and obtain a protective order against Herren without obtaining an adjudication of his capacity. Further, the court reiterated long-standing precedent that capacity is not a defense to abuse under the Elder Abuse Act.
The court also rejected Herren’s contention that there was no substantial evidence that her conduct amounted to elder abuse. The Elder Abuse Act allows restraining orders to be issued against parties who have committed elder financial abuse by exerting undue influence to obtain a property right from the elder. Undisputed evidence established that George was an elder as defined in the Act and that his agreement to pay a $100,000 retainer was a property right under California law.
In addition, substantial evidence demonstrated that Herron had obtained the retainer agreement through undue influence, which is determined by examining the victim’s vulnerability, the influencer’s apparent authority, the influencer’s actions or tactics, and the equity of the result. The evidence established George’s vulnerability: When George met Herren, he was 86 years old, legally blind, physically and mentally diminished, lacked short-term memory, and had progressive dementia. Evidence also supported Herren’s apparent authority: After she arrived at George’s home, she identified herself as a lawyer, asserted attorney-client privilege during her meeting with him, and threatened to bring an elder abuse case against George’s caregiver if she failed to leave the room. Herren knew that George had a trust, Susannah was a trustee, and two medical professionals had determined he lacked capacity to make financial decisions; nevertheless, she met with George alone while Susannah was out of town and after coercing his caregiver into leaving the room. The court further determined that the evidence supported the equity of the result: Herren was not merely meeting with an elderly client with diminished capacity but had committed financial abuse by exerting undue influence. Accordingly, the court affirmed the trial court’s order.
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