The Civil Protection Order
Since emotional abuse often accompanies financial abuse for caretaker perpetrators, a civil protection order can be an effective tool to prevent further emotional abuse of the victim and to separate the elderly victim from the perpetrator of the abuse. Besides the protections against assaults and threatened bodily harm, stalking, and domestic abuse, a Court may issue a civil protection order for a person who is more than 60 years of age or an at-risk adult restraining a defendant from repeated acts of verbal threats, assaults, or harassment.
Also, the Court may restrain the defendant from the misuse or inappropriate use of medications for the protected person and the inappropriate use of physical or chemical restraints against the person. C.R.S. 13-14-101 et.seq.
Acts of abuse of an elderly person by a person in a fiduciary position, such as, an agent, guardian, or a conservator ". . . that results in unreasonable confinement or restriction of liberty" of the elderly person may also be restrained by a Court.
If a Judge finds that the defendant has committed acts that constitute abuse of the elderly, the judge or magistrate may issue a civil protection order ex parte, that is, without the appearance of the defendant. The Court issues a citation to the defendant to appear at a "show cause" hearing to decide why the court should not make the temporary civil protection order permanent. Proper notice requires that the defendant be served personally with a copy of the complaint and the
summons. The Plaintiff may not enforce the temporary order until it is served on the defendant personally. The return on the citation must be set within two weeks.
The Court must hear motions for a civil protection order at the earliest possible time. County Courts in Colorado are especially equipped to hear the complaint quickly. Denver has an entire Court devoted to these civil protection orders.
Elders are not often able to participate actively in asserting their rights to obtain a civil protection order. Furthermore, they may fear retribution from the defendant because they are victims of physical or mental abuse or may lack the resourcefulness to act on their own behalf. Interestingly, any person who knows of or suspects mistreatment or self-neglect of an at-risk adult may bring the action. As a practical matter, the attorney can probably find a plaintiff to act for the elder and to stop acts of emotional abuse against the client quickly.
Appointment of A Special Conservator
To prevent financial abuse of the elder, the petitioner should seek the appointment of a special conservator or protection order by the Court to preserve and apply the protected person's assets for his benefit or the benefit of his or her dependents. The judge may appoint the special conservator without notice to others after a preliminary hearing. Once appointed, the special conservator preserves and protects the assets while also applying the elder's property for the support of the elder or his or her dependents.
At the hearing, the attorney must be able to present evidence that the allegedly incapacitated person is unable to manage his or her property or business affairs effectively because the person is not able to receive or evaluate or make or communicate decisions or the other reasons stated in C.R.S. § 15-14-401.
If the agent for the protected person has been using a power of attorney to exploit the elder, then the special conservator should immediately take steps to notify others of the special conservator's appointment and that the power of attorney is revoked.
Note: This discussion is incomplete and is not meant to be used as legal advice. This article is for information and educational purposes only. The reader should consult with an attorney before taking any action concerning a civil protection order. Self-help advice is available at http://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=24.
