Child Lacked Standing to Bring an Elder Abuse Action on the Mother’s Behalf

In Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, the Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, and dismissing the first amended complaint of Belinda Wilkins Tepper alleging elder abuse. Tepper sued her three siblings on behalf of her 88-year old mother, Eileen Wilkins, claiming her siblings, while acting as co-trustees of Eileen’s revocable living trust, were misusing the trust’s assets and committing financial abuse of an elder or dependent adult.  Tepper’s siblings demurred, asserting Tepper had no standing to sue on Eileen’s behalf, and Eileen, separately represented by counsel, joined the demurrer.

Under the Elder Abuse and Dependent Adult Civil Procedure Act an action must be prosecuted by the real party in interest or, while the elder is still living, by a conservator or a trustee of the elder, an attorney-in-fact who acts within the authority of a power of attorney, a person appointed as a guardian ad litem, or other person legally authorized to seek the relief.  Here, as set forth affirmatively in her amended complaint and on appeal, Tepper stated that she did not seek appointment as her mother’s conservator or guardian ad litem.  Further, she did not have her mother’s consent to pursue the action on her behalf through a power of appointment.

On appeal, Tepper contended that section 48 of the Probate Code afforded her standing as Eileen’s child to bring the elder abuse action on behalf of Eileen.  However, simply being Eileen’s child is not enough as section 48 defines an “interested person” by his or her relationship to a “decedent,” i.e., as a child with an interest in a trust estate or estate of the decedent that may be affected by the proceeding.  Tepper never alleged she was named as a beneficiary in Eileen’s revocable trust, and even if she was one, assets held in a revocable trust belong to the settlor who may dispose of those assets at will, effectively eliminating a beneficiary’s interest altogether.  (See, Babbitt v. Superior Court (2016) 246 Cal.App.4th 1135, 1145.)

The Court held that the cause of action for elder financial abuse belonged to the mother as the real party in interest, and found that since Tepper had not been appointed her mother’s guardian, she had no standing to bring suit in the mother’s name or on her claims.

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