9 minute read
Elder Abuse in Community Associations
ELDER ABUSE in Community Associations
Concerns of “elder abuse” occasionally come up in community associations. And while elder abuse is generally more prevalent in society than most people realize, the legal doctrines related to elder abuse are often misunderstood in the context of community associations and the term is often misused.
Comments or concerns related to elderly residents can arise in a variety of circumstances: • Concern over the physical or mental well-being of an elderly resident. Sometimes this can come up as a result of violations of the CC&Rs (nuisance, hoarding, care of pets, upkeep of property, etc.). • Concern over an elderly resident being financially swindled or taken advantage of by a caretaker or other person with a close relationship to the resident.
Continued on page 32
Elder Abuse in Community Associations Continued from page 30
• A resident claiming discrimination based on age.
• A resident requesting an accommodation due to age-related disability.
• The operation of residential care facilities for the elderly in a residential property in the community (i.e., a housing arrangement for up to 6 persons 60 years of age and older exclusive of staff, as permitted under California law).
• Claims based on the disproportional impact of decisions on elderly residents (i.e., assessment increases hurting fixedincome seniors).
• Governance issues specifically related to the operation of senior-only community associations (i.e., grandchildren using the community pool, enforcing age requirements). However, not every concern or issue related to elderly residents in our community associations is “elder abuse” in the legal sense. In developing legal protections, the California legislature recognized that elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted, and that few civil cases are brought in connection with this abuse due to problems of proof, court delays, and lack of incentives to prosecute. In California, elder abuse can be criminal or civil, or both, and applies to individuals 65 and older as well as other dependent adults. Criminal elder abuse occurs when a person willfully causes or permits an elder to suffer or inflicts unjustifiable physical pain or mental suffering on the elder.
Civil elder abuse is defined
under the Elder Abuse and Dependent Adult Civil Protection Act as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting physical harm or pain or mental suffering,” or “deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” Each of these categorical terms is defined (see California Welfare Code Sections 15610.05-63) and many clarified in judicial decisions. Cases can be brought by the elder or by the elder’s family. The most common forms of elder abuse are physical abuse, neglect and financial abuse.
Physical abuse includes assault (with or without a deadly weapon), battery, unreasonable physical restraint, prolonged or continual deprivation of food or water, use of physical/ chemical restraint or psychotropic medication for punishment or for any unauthorized period or purpose, sexual assault/battery,
rape, incest, etc. Neglect includes the negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care a reasonable person in a like position would exercise.
Financial abuse occurs when a person takes, secretes, appropriates, obtains, or retains (or assists in such actions), the real or personal property of an elder or dependent adult by “undue influence” or for “wrongful use” or “with intent to defraud.” Individuals acting in certain capacities, such as health care practitioners, have a duty to report suspected elder abuse. Others with knowledge or a reasonable suspicion of elder abuse are not mandated, but should report it to the adult protective services or local law enforcement.
There are a number of things community associations can do now to minimize problems down the road: • Obtain emergency contact information for family members of residents and owners. Have open communication with elderly residents now so it will be easier to communicate if a situation arises.
• Review and revise rules/ policies for consistency with legal requirements and to ensure there are no impermissible age restrictions, which are more common in older governing documents.
• Consider adopting rules/policies related to the prevention of
• Since 1974 we have provided peace of mind to Board Members, Owners and Residents • Complete Management, Financial and Customer Services • Professional Communication Channels thru Email,WebPages, etc. • Electronic Records Retention • Assign High Level Professional CommunityAssociation Manager • 24/7 Live Response Line • Residential and Commercial Owner Associations welcomed
We serve Santa Clara, San Mateo and Alameda Counties. ACE Property Management, Inc. • 1290 Kifer Road, Suite 309, Sunnyvale, CA94086 Office: 408-217-2882 • Fax: 408-217-2889
(408) 345-4000 http://wm-llp.com
We counsel: • Condominium Associations • Planned Unit Developments • Mixed Use Associations • Commercial Associations
We provide general counsel to Associations including the following services: • Construction Defect and Civil Litigation • Dispute Resolution • Governing Document Interpretation • Governing Document Revisions • CC&R and Rules Enforcement
discrimination based on age, when assistance may be provided to elderly residents, and when concerns should be reported to local or state agencies.
• Consider adopting policies and procedures for responding to disability accommodation requests.
• Consider providing educational resources and outreach programs for elderly residents and training for management/ staff.
As California’s population ages, community associations will encounter issues related to elderly residents more and more frequently. Most homeowners now intend to age in place, with fewer electing to live with family members or in an assisted living facility. Age-restricted community associations are also becoming more and more popular. Community associations should be vigilant in the short-term – and methodical in developing strategies for the long-term – in order to both protect and respect California’s elderly population.
Nathan R. McGuire, Esq. is a partner with Adams | Stirling, PLC, in charge of the firm’s Northern California offices and currently serving as Chair of the Community Associations Institute’s California Legislative Action Committee (CAI-CLAC).
BOOKSTORE The ECHO Bookstore is your source for great information on the duties of HOA board members. Find these and other informative publications, including FREE downloads, online at www.echo-ca.org.
BOOKSTORE
MEMBERS: To order, log in for your member pricing through the Online Store at echo-ca.org or call (408) 297-3246
2019 2019
2019 Condominium Greenbook Member Price: $17 Non-Member Price: $25 This companion to the Condominium Bluebook is an in-depth guide to all aspects of association finances, including accounting methods, financial statements, reserves, audits, taxes, investments and much more. Not for the accounting novice, this is a tool for the treasurer or professional looking for specific information about association finances. 2019 Condominium Greenbook Member Price: $17 Non-Member Price: $25 This companion to the Condominium Bluebook is an in-depth guide to all aspects of association finances, including accounting methods, financial statements, reserves, audits, taxes, investments and much more. Not for the accounting novice, this is a tool for the treasurer or professional looking for specific information about association finances.
2019 Civil Code Sections Governing California Community Associations Member Price: $20 Non-Member Price: $25 This publication includes the current version of the DavisStirling Common Interest Development Act, the Civil Code sections
that apply to common interest developments and selected provisions from other codes important to associations. FREE DOWNLOAD FOR MEMBERS
Board Member Handbook Board Member Handbook
Member Price: $20 Member Price: $20
Non-Member Price: $25 This publication is the essential guidebook for HOA Board members, dealing with governance, finances, insurance and maintenance issues. Non-Member Price: $25 This publication is the essential guidebook for HOA Board members, dealing with governance, finances, insurance and maintenance issues.
FREE DOWNLOAD FOR MEMBERS
2019 2019
Condominium Bluebook 2019 Edition Condominium Bluebook 2019 Edition
Member Price: $17 Non-Member Price: $25 This well-known compact guide for operation of common interest developments in California now includes a comprehensive index of the book and a chapter containing more than 200 frequentlyasked questions about associations, along with succinct answers. Member Price: $17 Non-Member Price: $25 This well-known compact guide for operation of common interest developments in California now includes a comprehensive index of the book and a chapter containing more than 200 frequentlyasked questions about associations, along with succinct answers.
Construction Defect Claims Construction Defect Claims
Member Price: $19.95 Non-Member Price: $25 New buildings can conceal extensive faults. It’s a board’s worst nightmare—rainstorms damage buildings and bring owner complaints. Is legal action necessary? With this new book, you’ll learn about the resolution process for construction problems, and how to handle complex claims. Member Price: $19.95 Non-Member Price: $25 New buildings can conceal extensive faults. It’s a board’s worst nightmare—rainstorms damage buildings and bring owner complaints. Is legal action necessary? With this new book, you’ll learn about the resolution process for construction problems, and how to handle complex claims.
Home and Condo Defects Home and Condo Defects
Member Price: $12.95 Non-Member Price: $17.95 Member Price: $12.95 Non-Member Price: $17.95
Construction defect litigation can be confusing, expensive and fraught with legal pitfalls. This eye-opening guide, written by accomplished construction-defect attorneys, is an essential tool for board members who need to understand the legal process. Construction defect litigation can be confusing, expensive and fraught with legal pitfalls. This eye-opening guide, written by accomplished construction-defect attorneys, is an essential tool for board members who need to understand the legal process.
Robert’s Rules of Order Robert’s Rules of Order
Member Price: $7.50 Non-Member Price: $12.50 A step-by-step guide to the rules for meetings of your association, the current and official manual adopted by most organizations to govern their meetings. This guide will provide many meeting procedures not covered by the association bylaws or other governing documents. Member Price: $7.50 Non-Member Price: $12.50 A step-by-step guide to the rules for meetings of your association, the current and official manual adopted by most organizations to govern their meetings. This guide will provide many meeting procedures not covered by the association bylaws or other governing documents.
LEADING WITH EXCEPTIONAL LEGAL TALENT EXTENSIVE RESOURCES AND DECADES OF EXPERIENCE
Complementary Construction Defect Investigation
Construction Law and Dispute Resolution
Business and Real Estate Law
Our law professionals are highly experienced community association and construction law attorneys, and bring a thorough understanding of our clients’ issues and creative solutions for their legal needs.
In addition to dealing with the legal problems of condominium and homeowners associations, we also defend associations and their boards of directors against third party claims for personal injury and property loss as well as directors’ and officers’ liability, and we assist our clients in maximizing insurance claims for damages to buildings and common area.
Call us for more information on our Free No-Cost Community CheckUp and our Complimentary Construction Defect Investigation.
WALNUT CREEK SAN FRANCISCO LOS ANGELES COSTA MESA SAN DIEGO
