The PDF in which this article appears can be found in Bifocal Vol. 46 Issue 5.
June 24, 2025
Civil Legal Remedies’ Role in Combatting Elder Abuse
By Jessica Brock/Senior Attorney/Chief Counsel, Commission on Law and Aging
Using civil legal remedies to combat elder abuse can be an effective way to stop abuse and make clients whole again. In many cases, civil remedies are preferred by older adults experiencing abuse, and in many cases, civil remedies are the only way to attempt to stop and address abuse and exploitation. This article explores some civil remedies available to older adults experiencing abuse or exploitation.
Why Civil Legal Remedies in Elder Abuse Cases?
Survivors of elder abuse have oten been stripped of control over parts of their lives. The perpetrators explicitly or implicitly tell the older adult that their voice does not matter. When older adults seek to report the abuse to law enforcement or others and no action is taken, this can be received as confirmation that their experience and their voice do not matter. Civil litigation offers survivors a forum to regain control and be heard, the value of which cannot be overstated.
Civil litigation begins with a prospective client contacting an attorney for legal advice or legal assistance. The process is client-initiated. In completing an intake or speaking with an attorney, the older adult has the opportunity to tell their story. In the client meeting, an attorney presents the client with available remedies along with the pros and cons of each. The client gets to decide which remedies, if any, to pursue, and if at any point in the litigation the client wants to stop the process, the client has the power to do so.
The power to choose whether to proceed with civil litigation and to choose the course of action are especially important to survivors who do not want to see the perpetrator go to jail or “get in trouble.” This is most common in cases where the perpetrator is a child or grandchild. The older adult wants the abuse or exploitation to stop, and they generally also want their assets or property returned. But they do not want “harm” to come to their child or grandchild in the process. The assurance that they can determine what redress is sought, if any, is reassuring to this kind of client.
The criminal justice process does not offer this power and control to the older adult. A criminal case begins with a report to law enforcement. Police reports are then sent to local prosecutors for review, and prosecutors decide whether criminal charges will be filed against the alleged perpetrator. If criminal charges are filed, the objectives and outcome of the criminal case are up to the prosecutor. Survivors may be consulted about their wishes, but the course of a criminal case is ultimately up to the prosecutor. The older adult cannot unilaterally pump the brakes.
The older adult is not in control of the criminal justice process. Instead, the survivor is dependent on law enforcement to make a police report. If a police report is made, the survivor is dependent on the prosecutor to file charges against the perpetrator. If charges are filed, the survivor cannot unilaterally control what penalties or restitution are sought or if the case continues to its conclusion. And of course, if a police report is not made after a call to law enforcement or if a prosecutor does not choose to file charges, the older adult is left without redress.
Another advantage of civil remedies in contrast to criminal remedies is a lower burden of proof. Generally, a civil count requires a lower burden of proof than the corollary criminal offense.
Civil litigation can stop the crime or abuse as well as reverse or ease the negative effects of the crime. Civil litigation can also be used to prevent abuse. Civil litigation empowers survivors, as they direct the course of the litigation. Civil remedies are often times the only form of recourse left available to an older adult because of choices made in the criminal justice process.
Changing Priorities: A Case Example
A client calls for legal assistance because her guardian is using the client’s income to pay for the guardian’s cell phone bill and to finance vacations for the guardian. The guardian is the client’s only child. The client does not want her child to go to jail, and so she has not called law enforcement. The client is not too interested in getting her money back, because she does not think the child can afford to pay it back. The client does want her child to stop stealing from her, and she wants to prevent her child from accessing her money going forward.
After meeting with an attorney, the client decides to petition the court to remove her child as her guardian and to seek an accounting in the guardianship case. The case proceeds for months as various motions are filed and discovery requests are made. As the case goes on, the relationship between the client and her child sours. They are no longer talking to each other.
One day, the lawyer gets a call from the client. The client was not feeling well and went to see her doctor. The client learned she has terminal cancer, probably with only a few months left to live. The client asks her lawyer to dismiss the case against her child because she wants to spend the last months of her life with her child. The lawyer dismisses the claims against the abuser and closes the case file.
In this example, the client’s goals were only achievable using civil legal remedies, as she did not want to involve law enforcement. The client filed a petition to remove her child as guardian, which would stop the financial abuse and prevent future financial abuse. The client also filed a petition for an accounting to get a full picture of the financial exploitation. After receiving the accounting, the client would be able to decide how and if she wanted to respond to that information. Meanwhile, the client received life-altering health news, and the client decided that spending time with her child during her remaining time was more important than the civil legal action. Because the client was in the driver’s seat, the client was able to stop the litigation to meet her changing priorities.
In a civil lawsuit, a client gets to hold the perpetrator accountable and tell her story. Many older adults who have experienced abuse have had their voices silenced or dismissed. The ability to publicly tell one’s story and to be believed by at least his attorney is important in healing from the abuse. The client is also given the opportunity to publicly confront the perpetrator and put the community on notice about the perpetrator’s actions. This strips the perpetrator of power and secrecy.
There are roadblocks to seeking civil legal remedies. One example is isolation of the older adult. If the older adult experiencing abuse is being isolated by the abuser, it may be difficult or impossible for the older adult to seek help. Access to mail, phones, transportation, and other means of communication may be restricted by the abuser. This isolation may also prevent the older adult from fully realizing how wrongly they are being treated, as they are not receiving feedback from others about their situation.
Types of Civil Remedies
The civil remedies available to older adults depend on state law. This is especially true in consumer law cases. Some states have enacted specific financial exploitation or senior consumer protections statutes to address financial elder abuse. These remedies are not available in every state, however, and the age required to qualify for protection under these statutes varies among states.
Abuse by Fiduciaries (Attorneys in Fact, Guardians, Conservators, etc.)
Elder abuse cases often involve abuse of authority conferred by power of attorney documents or guardianship orders. An agent under a power of attorney or a guardian may be misusing or stealing the older adults money or property. The fiduciary could be physically, sexually, verbally, or emotionally abusing the older adult. The fiduciary could be denying the older adult needed medical care or access to friends and family. These are but a few examples of the type of elder abuse that can involve a fiduciary relationship. The type of abuse and the kind of fiduciary relationship will determine which civil remedies are available.
If an agent under a power of attorney is abusing the principal, these are some available civil remedies:
- Revocation of the power of attorney to prevent future access and authority
- Accounting demand to determine the scope of financial abuse and location of assets
- Petition to compel production of an accounting when the agent does not respond to an accounting demand
- Civil complaint for breach of fiduciary duty and recovery of assets
- Legal advice in the form of client education about their rights under a power of attorney and the agent’s duties and responsibilities (This is particularly helpful for clients who are not ready to proceed with litigation. An advice letter can be a resource as they decide what to do in the future and as they discuss the situation with friends and family.)
If a guardian/conservator is abusing the older adult, these are some available civil remedies:
- Petition to substitute or remove the guardian/conservator
- Petition to terminate or modify the guardianship/conservatorship (This is effective in cases when the guardianship is unnecessary or overly restrictive. Filing a petition to terminate or modify rather than a petition to terminate provides for cases where the court is not willing to terminate the guardianship but would consider modification. Both motions are already before the court, removing unnecessary delay.)
- Petition for inventory and accounting to determine the scope of financial abuse and the location of assets
- Petition for recovery of assets and attorney fees
Abuse by a Co-owner or Co-tenant
- Order of Protection, which may include the ability to remove the abuser from the premises
- Eviction, if an order of protection is not applicable or successful
- Other property-related claims that may apply: partition, quiet title, quiet enjoyment argument, notice of trespass if no tenancy relationship, eviction defense if abuser has filed to evict the older adult
Abuse by a Spouse or Heir/Beneficiary
- Dissolution of Marriage or Legal Separation
- Revision of trust, will, or insurance policy to remove the abusive heir/beneficiary
- Execution of a new power of attorney to replace abusive agent
Consumer and Property Issues
- Consumer protection statute and senior consumer protection statute claims
- Injunctions
- Replevin actions
These examples are not exhaustive of the civil legal remedies one might pursue in elder abuse cases, and some of these remedies may not be available in every jurisdiction. But they do illustrate the breadth of civil legal responses available to older adults experiencing abuse. They can also be used in stages depending on the client’s comfort level.
The Cautious Client: A Case Example
A client calls and reports that his best friend is his agent under a power of attorney. The client says the friend is using his money to gamble at the local casino. When the client has confronted his friend about this and asked him to stop, the friend threatens to hit the client. The client wants to know what he can do.
In meeting with the client, it becomes clear that the client is not ready to take any legal action, because the client wants to keep his friendship with his lifelong best friend. During the meeting, the lawyer has explained various options to the client – revoking the power of attorney, executing a new power of attorney, asking for an accounting, suing the friend to get his money back. The lawyer asks the client if he would like some time to think his options over. The client says yes.
The lawyer offers to send the client an advice letter that reviews all of the options they have talked about and tells the client that he can call any time to ask more questions or to say he is ready to pursue one of the options discussed. The client agrees that a letter would be helpful to remember what they talked about as he thinks things over.
The lawyer sends an advice letter outlining the various options, and in the letter, the lawyer reminds the client that the client is in control of the case. The client can take incremental steps and decide at each stage whether he wants to continue or stop. For example, the client could revoke the power of attorney and end things there. Or the client could revoke the power of attorney and ask for an accounting. Once the accounting is produced, the client can decide if he wants to seek return of his money, and if an accounting is not produced, the client can decide if he wants to file a petition with the court demanding that an accounting be produced.
Ultimately, the client calls back after thinking over the options in the letter. The client decides he would like to ask for an accounting and decide what to do after that.
In this example, the client is given full control over the process and the speed of the process. By sending an advice letter recapping their conversation, the lawyer demonstrates to the client that the client is in control, and this builds trust between the lawyer and the client. The client sees that his voice matters, and his wishes will be respected. This may help give the client the confidence needed to take the next step.
Conclusion
It often takes great courage for an older adult to report elder abuse, and one of the worst things that can happen is for the older adult not to be believed or supported. Inaction can serve to silence the older adult from taking further steps or reporting future abuse. Civil legal remedies offer an opportunity for an older adult to tell her story and reclaim control over her life. As incidences of elder abuse increase, civil legal remedies will only become more important in combatting elder abuse.