It is a heartbreaking but all too common scenario: a person over the age of 65 places their trust in the wrong person and ultimately has that trust betrayed. Now the elder must resort to a financial elder abuse action to return what is rightfully theirs. However, what can the elder do to prevent this unscrupulous person from using the elder’s own monies against them in defense of the financial elder abuse claim? Enter Welfare & Institutions Code section 15657.01, a powerful tool in any probate litigator’s arsenal.
Under Section 15657.01, victimized elders (or their heirs) can immediately file an application for a right to attach order which liens any assets held by their financial abuser. This lien in essence freezes these assets until final adjudication or settlement. In the most extraordinary circumstances, the elder can even utilize this procedure on an ex parte basis without notice to the defendant. To do so, the elder must demonstrate he or she will suffer great or irreparable injury if the order is not issued before it can be heard on notice. The elder can do so by showing that it may be inferred there is a danger that the property sought to be attached will be (a) concealed; (b) substantially impaired in value; or (c) made unavailable to attachment by some means other than concealment or impairment in value. As with any writ of attachment, the elder must also show that it is more likely than not that he or she will obtain a judgment against the defendant on the elder abuse claim.
It is important to remember that Section 15657.01 is an extraordinary measure and will not be granted by the Court lightly. It is also not a final adjudication of the matter because the elder must still prove their case later at trial. However, it is an excellent prejudgment remedy for an elder to utilize to make sure that their assets are not used against them while they seek to return what is rightfully theirs.