An elder abuse restraining order (EARO) may issue without adjudication of the elder’s capacity, and an attorney’s fee agreement constitutes a property right the deprivation of which constitutes financial elder abuse.
Source: California Lawyers Association – Herren v. George S.
Herren v. George S.: Key Rulings on Elder Abuse Restraining Orders and Attorney Fee Agreements in California
If you’re a California resident managing the care or assets of an elderly loved one—or you’re concerned about protecting your own rights as you age—understanding recent legal developments in elder abuse law is critical. The case of Herren v. George S. provides important clarification on two issues that frequently arise in elder law disputes: when restraining orders can be issued and how attorney fee agreements are protected under financial elder abuse statutes.
Who This Article Is For
This information is essential for:
What the Court Decided in Herren v. George S.
The California Court of Appeal issued two significant rulings in this case:
1. Elder Abuse Restraining Orders Can Be Issued Without Determining Capacity
California courts can issue an Elder Abuse Restraining Order (EARO) even without first adjudicating whether the elder has legal capacity to make decisions. This means:
This ruling is particularly important for families facing urgent situations where an elder may be under undue influence or experiencing exploitation, but formal capacity evaluation would cause dangerous delays.
2. Attorney Fee Agreements Are Property Rights Protected Under Elder Abuse Law
The court held that an attorney’s fee agreement constitutes a property right, and depriving an elder of this right can constitute financial elder abuse. In practical terms:
This protection ensures that elderly Californians maintain their right to choose and compensate their own legal counsel, even when family members or other parties disagree with that choice.
Why This Matters for Estate Planning and Elder Law
These rulings have real-world implications for how California families should approach elder care planning:
Faster Protection When Abuse Is Suspected
If you believe a parent, grandparent, or other elderly family member is being financially exploited, you may be able to obtain a restraining order more quickly than you thought. The court doesn’t need to wait for a lengthy capacity evaluation.
Respect for Elder Autonomy
The second ruling reinforces that elders have the right to make their own legal and financial decisions, including hiring attorneys. This can help prevent well-meaning (or not-so-well-meaning) family members from overstepping.
Stronger Remedies in Financial Abuse Cases
By recognizing attorney fee agreements as property rights, the court has expanded what constitutes actionable financial elder abuse—giving victims and their advocates more legal tools.
How California Probate and Trust Can Help
At California Probate and Trust, PC, we understand that elder law issues are rarely simple. They involve family dynamics, health concerns, financial complexities, and deep emotions. Our Sacramento-based team has represented thousands of California residents in estate planning, probate, and elder abuse matters.
Whether you’re creating a trust to protect yourself as you age, serving as a trustee or agent and facing resistance from family members, or concerned about a loved one’s safety and finances, we provide:
Take Action to Protect Your Family
Don’t wait until a crisis occurs. Whether you need to establish a trust, update your power of attorney, or address concerns about an elderly loved one’s wellbeing, we’re here to help.
Schedule your free consultation today by calling (866) 674-1130 or visiting our contact page.
Source: California Lawyers Association – Herren v. George S.