What is a restraining order to prevent elder or dependent adult abuse?
What is the definition of "elderly" and "dependent adult" for the purposes of getting this restraining order?
An elderly person is anyone who is 65 years old or older.1 A dependent adult is defined as:
- anyone who is an inpatient in a 24-hour health facility, such as a nursing home; or
- someone between the ages of 18 and 64 who has physical or mental limitations that restrict his/her ability to carry out normal activities or to protect his/her rights, even if s/he lives independently. The person’s limitations or restrictions could be due to:
- a physical or developmental disability;
- diminished physical or mental ability due to age; or
- other reasons.2
1 Cal Wel. & Inst. Code § 15610.27
2 Cal Wel. & Inst. Code § 15610.23
What is the legal definition of elder or dependent adult abuse?
For the purposes of getting a restraining order to prevent elder or dependent adult abuse, “abuse” is defined as:
- physical abuse;
- other treatment with resulting physical harm or pain or mental suffering;
- a caregiver withholding goods or services that are necessary to avoid your physical harm or mental suffering;
- financial abuse (as defined in Section 15610.30).1
1 Cal Wel. & Inst. Code § 15610.07(a)
What types of restraining orders to prevent elder or dependent adult abuse are there? How long do they last?
There are two types of orders: a temporary ex parte order and a final order.
If you ask for a temporary ex parte restraining order, the judge will decide whether or not to issue the order on the same day that you file for it (or, if it’s filed too late in the day, on the next day the court is in session).1 If the judge grants you a temporary order, it will last until your hearing date for a final order, which is generally within 21 days (but could be within 25 days if there is “good cause”).2 At your final hearing date, the judge will decide to continue or cancel the order. If the judge grants you a final order, it could last for up to five years.3
1 Cal Wel. & Inst. Code § 15657.03(e)
2 Cal Wel. & Inst. Code § 15657.03(f)
3 Cal Wel. & Inst. Code § 15657.03(i)(1)
Am I eligible for a restraining order to prevent elder or dependent adult abuse?
If you are 65 years old or older (an “elder”) or a dependent adult who is being abused, you can apply for a restraining order to prevent elder or dependent adult abuse.1 A dependent adult is a person between the ages of 18 and 64 who has physical or mental limitations that restrict his/her ability to carry out normal activities or to protect his/her rights or who is admitted as an inpatient to a 24-hour health facility.2
You can also file for a restraining order on behalf of an abused elder or dependent adult if you are:
- his/her conservator or trustee;
- his/her attorney-in-fact, acting within the authority of the power of attorney;
- appointed as a guardian ad litem for the elder or dependent adult; or
- any other person legally authorized to seek such relief.3
1 Cal Wel. & Inst. Code §§ 15657.03(a)(1), 15610.27
2 Cal Wel. & Inst. Code § 15610.23(b)
3 Cal Wel. & Inst. Code § 15657.03(a)(2)
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.