Wear Trial Law represents elders, dependent adults, and their families in claims for physical abuse, neglect, sexual abuse, financial exploitation, and wrongful death. California’s Elder Abuse and Dependent Adult Civil Protection Act provides remedies that ordinary negligence law does not — including attorney’s fees and recovery of a decedent’s pre-death suffering. Michael Wear prosecuted elder abuse cases as a Marin County Deputy District Attorney and now handles these matters for families.
Why elder abuse is a different claim than negligence
Most people assume a bad outcome in a nursing home is a malpractice case. Framed that way, it usually is not worth pursuing — noneconomic damages against a health care provider are capped, and the economics rarely support the work.
The Elder Abuse Act creates a separate and far more powerful claim. Where a plaintiff proves, by clear and convincing evidence, that a defendant was liable for physical abuse or neglect and acted with recklessness, oppression, fraud, or malice, Welfare and Institutions Code section 15657 requires the court to award attorney’s fees and costs, and lifts the ordinary bar on recovering a decedent’s pre-death pain and suffering.
The California Supreme Court has held that reckless neglect is not “professional negligence,” which is why the malpractice framework does not swallow these cases. The entire battle in a facility case is usually fought over that line — the defense working to characterize what happened as an isolated clinical error, the plaintiff proving a pattern.
What counts as neglect under the Act
Neglect is defined by statute as the negligent failure of a person having care or custody of an elder or dependent adult to exercise the degree of care a reasonable person in that position would exercise. It expressly includes failing to assist in personal hygiene or to provide food, clothing, or shelter; failing to provide medical care for physical and mental health needs; failing to protect from health and safety hazards; and failing to prevent malnutrition or dehydration.
Note what this definition is about. It is a failure of custodial care — not a doctor’s diagnostic judgment. California courts have held that the Act requires a caretaking or custodial relationship, which is why the analysis starts with who had custody of the person and what they were obligated to do.
Who the Act protects
- Elders — anyone 65 or older in California
- Dependent adults — adults between 18 and 64 with physical or mental limitations that restrict their ability to carry out normal activities or protect their rights
Cases the firm handles
- Nursing Home Abuse and Neglect — licensed skilled nursing facilities
- Assisted Living Facility Abuse — residential care facilities for the elderly
- Physical Abuse of an Elder — by staff, caregivers, or other residents
- Sexual Abuse of an Elder — in facilities and in-home care settings
- Financial Exploitation — by caregivers, family members, and professionals
- Wrongful Death in a Care Facility
A critical change for families in 2026
For deaths occurring now, how a case is framed determines whether the person’s suffering is compensable at all. A temporary California law permitting recovery of a decedent’s pre-death pain and suffering in survival actions expired on January 1, 2026. The Elder Abuse Act contains its own provision preserving that recovery where the Act’s heightened standard is met.
In plain terms: the same facts, pleaded as negligence, may now yield nothing for what the person endured. Pleaded and proven as elder abuse, they may. See What Changed on January 1, 2026.
Why this firm
Michael Wear prosecuted elder abuse as a trial attorney on the Marin County District Attorney’s Special Victims Unit felony trial team, where he tried cases to juries for fifteen years. Elder abuse cases are won on records — staffing schedules, care plans, medication administration records, incident logs, and licensing citations — and on establishing that management knew. That is investigative work he has done for fifteen years.
Free and confidential. Call 415-233-9688.
Frequently Asked Questions
FAQ
Often it should not be framed that way. Reckless neglect is a distinct claim with different remedies and a different deadline.
Elder abuse claims generally follow the two-year personal injury deadline rather than the shorter malpractice period. Public facilities carry much shorter deadlines.
These are frequently challengeable. Do not assume it forecloses the case.
Yes, claims still proceed. The Elder Abuse Act preserves categories of damages that ordinary law no longer allows after death.
There is no attorney’s fee unless there is a recovery. Where the Elder Abuse Act’s standard is met, the court must award attorney’s fees against the defendant.
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