Elder Abuse

Elder abuse, which is officially made a crime under California Penal Code Section 368, covers a number of different crimes against the elderly, defined as people who are at least 65 years of age or older. PC 368 outlaws physical abuse against the elderly, which is the performance of a physical act that causes an elderly person unjustifiable pain and/or an injury, or the use of physical restraints as a form of punishment. However, elder abuse isn’t just about physical suffering, there are a number of other forms of abuse that PC 368 outlaws. It also covers emotional abuse, which is when someone causes an elderly person undue mental suffering, through harassment, ridicule, or intimidating behavior. Elder abuse also makes it illegal to neglect a dependent elderly person if you are their primary caregiver, and place them in a situation in which their basic health/safety is put in jeopardy, from a lack of access to food, medicine, or other necessities. Another major form of elder abuse made illegal through PC 368 is financial exploitation, which involves someone taking advantage of an elderly person to exploit their assets/property for personal gain, usually by extorting them or misleading them.

Unfortunately, elder abuse is a crime that has become more frequent in recent years, despite attempts to crack down on those exploiting senior citizens. It is estimated that roughly 1 out of every 7 Americans over the age of 65 suffers elder abuse at some point in their lives. Most of the time, the perpetrator of the abuse isn’t a stranger, but rather a person who is supposed to be taking care of the elderly person, oftentimes a family member. As America’s population continues to age, with much of baby boomer generation reaching retirement, this problem may only continue to get worse in future years.

You might be asking yourself at this point, why do elderly people need an extra layer of legal protection, aren’t the laws that protect against abuse for people of all ages enough? Well, it’s generally because elderly people are often physically impaired or otherwise unable to provide for themselves, and this makes them particularly vulnerable to abuse as compared to the rest of the population. Therefore, because the elderly are oftentimes unable to defend themselves, an extra layer of legal defense is necessary in order to dissuade those who may consider committing elder abuse. This is the same reasoning that can be observed as the impetus behind laws protecting children from abuse, in fact when elder abuse laws were first being drafter in California in the 1980s, child abuse statutes were transformed into elder abuse statutes by replacing the word, “child,” with terms such as “elderly person.”

If you feel as if you or somebody you know is a victim of elder abuse, or if you are being accused of elderly abuse, call 619-393-8588 to get in contact with Domestic Violence Attorney. We employ the best attorneys in the greater San Diego area, who know elder abuse law inside and out, and can provide you with the skilled legal representation you deserve.

What Needs to be Proven to be Found Guilty of Elder Abuse

Not every action a person takes that is detrimental to the wellbeing of an elderly person can necessarily be prosecuted under elder abuse law. In order for someone to be found guilty of elder abuse, certain elements of the crime must be proven by the prosecutor. First, it must be shown that you willfully or via criminal negligence caused an elderly person to endure unjustifiable physical pain or mental anguish as a result of your actions. Second, it must be shown that you were aware or should have reasonably been aware the person you were abusing was an elderly person at least 65 years of age. Third, it must be shown that your actions may have greatly endangered the physical/mental health of the elderly person. To better understand these criteria, let’s look at them in more detail:

For an action to be considered willful, it must be shown that the perpetrator deliberately took the action on purpose. However, willful does not necessarily mean that the person meant to abuse the elderly person, although this is often the case. An action can be considered willful so long as the person carrying out the action intended to carry it out, even if the consequences of taking that action were unintentional. An action cannot be considered willful only if the action was taken totally by accident, without any intention whatsoever.

As explained above, elder abuse can be committed willfully, or through what is called criminal negligence. Criminal negligence isn’t when someone makes an understandable mistake or accidentally forgets something, rather it’s when someone acts in a way that is so profoundly negligent that it demonstrates he/she seems to disregard the basic value of human life. Forgetting to give your ailing grandma one of her 15 medications would not qualify as elder abuse. Refusing to feed your ailing grandma despite her living just downstairs from you would constitute elder abuse.

However, it is important to note that you can only be found guilty of elder abuse if it can be shown that you had a legal duty to take action. In legal terms, only the person directly taking care of the dependent elderly person can be found guilty of elder abuse. Even though other people besides the primary caretaker may be aware of the fact the criminal negligence is taking place, only the person who is taking care of the elderly person is legally responsible for any negligence that takes place. While these other people should have been obligated morally to report the criminal negligence, as they were fully aware what was occurring, only the caretaker has a legal duty to care for the elderly person, and therefore only the caretaker can be convicted of elder abuse via criminal negligence.

Not all action that causes an elderly person to feel pain or anguish necessarily constitutes elder abuse. If an elderly person and their caretaker get into a heated argument, and the caretaker says something mean, that probably wouldn’t qualify as elder abuse, as saying something harsh during an argument isn’t unjustifiable. For inflicted pain/anguish to be considered unjustifiable, the causal action must be shown to be totally excessive and beyond the bounds of normalcy. Only physical pain or mental anguish that is brought about by action that is totally uncalled for and extreme in nature is usually considered unjustifiable under elder abuse law.

It must also be proven that you were aware or should have reasonably been aware that the alleged victim was at least 65 years old. If you were fully aware of the person’s age, then there is no need for further examination. The trickier issue is proving that you should have reasonably been aware of the person’s age, even if you weren’t aware of their exact age. A professional caretaker in home for elderly people over the age of 70 should reasonably be aware that all the people in the facility are elderly people.

For behavior to be considered elder abuse, it must seriously endanger the physical/mental health of the elderly person, and not just threaten them in a minor way. Dropping a paper plate on an elderly person wouldn’t count as elder abuse, as this type of behavior obviously doesn’t pose a serious threat to the elderly person’s physical/mental health. Also, it is important to know that it is not a requirement for the elderly person to actually experience damage to their physical/mental health, it is only required for their physical/mental health to be endangered. This means that placing an elderly person in a situation where their physical/mental health is put in jeopardy qualifies as elder abuse, even if they don’t end up suffering any sort of injury in the end.

Legal Defenses for Elder Abuse Claims

Unfortunately, it isn’t unheard of for people to be falsely accused of committing elder abuse in California. Oftentimes, elderly people suffer from memory loss or experience delusions, and believe a person is inflicting abuse upon them even when this isn’t the case. Also, elderly people often suffer from diseases and other medical conditions that make it appear as if they are the victims of abuse when no such abuse has occurred. Additionally, police officers and social workers are legally required to report elder abuse, in fact they can face serious criminal charges if they choose not to report it. Therefore, these people often report elder abuse even when they are unsure of whether an elderly person condition is a result of abuse of a medical condition, out of fear that they could be prosecuted for failing to report elder abuse.

Thankfully, there exist legal defenses for those who believe they are being falsely accused of elder abuse. Here a few of the most commonly employed legal defenses:

People accused of elder abuse often claim that the physical/mental harm they caused was only the result of an accident. This defense doesn’t always work in the cases when the defendant genuinely did not intend to cause harm to the elderly person, as someone can be found guilty of elder abuse through criminal negligence, which isn’t necessarily intentional. The defense of accidental harm can only be used in cases when the defendant genuinely only harmed the alleged victim as the result of a total accident. If a person trips and falls onto an elderly person, causing that elderly person to sustain physical injury, then the defense of accidental harm could be utilized, as tripping and falling onto someone is clearly totally accidental.

As discussed briefly above, it is not totally uncommon for someone to be falsely accused of elder abuse. Sometimes, other family members, who are jealous of the fact that the caretaking family member has been rewarded generously by the elderly person being taken care of, falsely accuses the caretaker of elderly abuse as a method of revenge. In cases such as these, the best thing you can do to protect yourself is to hire a skilled attorney with expertise in elder abuse law. A seasoned lawyer will have dealt with dozens of cases involving false charges, and understand how to reveal the spuriousness of false charges.

You may be able to fight a charge of elder abuse by successfully arguing that not enough solid evidence exists for you to be found guilty of this crime. The prosecutor must demonstrate that you are guilty beyond a reasonable doubt, so you may be found not guilty if there isn’t enough evidence. Oftentimes, a defense team trying to make a case for insufficient evidence will bring in an expert in elder abuse, who will explain to the court that the injuries suffered by the elderly person are the result of a physical disease, and not abuse. Other times, witnesses will be brought in by the defense to claim that the elderly person is delusional and is only imagining the alleged abused.

This defense is usually employed when no other defense options are available, and when overwhelming evidence exists indicating that the defendant did in fact commit elder abuse. In this scenario, the defense may claim that the abuse did take place, but that it only occurred a single time, and only as the result of extenuating circumstances. People understand that taking care of an elderly person is an exhausting job that causes a great deal of stress, especially when the elderly person is of a mental state that causes them to treat people poorly. So, the defense may claim that the built-up stress caused by caring for an elderly person caused the defendant to commit abuse on one single occasion, but never again. While it is unlikely for an elder abuse charge to be dismissed on these grounds, this defense is often employed in attempt to garner a reduced sentence.

How Elderly Abuse is Charged

While a number of hotlines are maintained for people to call about elder abuse they have witnessed or endured themselves, the majority of elder abuse cases are referred to prosecutors by police officers. After receiving these cases, the prosecutors must decide whether or not to file charges, and if so what kind of charges. A number of prosecuting agencies in California maintain special units to handle elder abuse cases. These units use vertical integration to prosecute these cases, meaning that a single specially trained prosecutor will handle the case from start to finish. Which specialized unit within California will handle the charges depends on the nature of the case. Some units specialize in felony cases, while other specialize in misdemeanor cases. California’s Attorney General only handles elder abuse that took place in a residential treatment facility or nursing home.

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Penalties for Elder Abuse

Elder abuse is one of California’s many wobblers, meaning that prosecutors can elect to charge elder abuse either as a misdemeanor offense or as a felony offense. Usually, prosecutors will choose to charge the elder abuse as a felony if the physical/mental harm caused by the abuse is severe, and charge it as a misdemeanor if the abuse was less cruel. The prosecutor will also take into account the perpetrator’s criminal record before making a decision, with a history of elder abuse making it much more likely for a felony to be charged.

If charged with a misdemeanor, the penalties are less serious. Those charged with a misdemeanor for elder abuse face a jail sentence of no more than 1 year, and/or a fine of up to $6,000 for first-time offenders and a fine of up to $10,000 for a second-time offender. Alternatively, you may be granted summary probation and be required to attend mandatory counseling sessions, as well as pay restitution to the victim of your abuse.

If charged with a felony, the penalties are more serious. Those charge with a felony for elder abuse face a prison sentence of 2 to 4 years depending on the severity of the abuse, or 3 to 7 years if the victim suffers serious bodily injury, and/or a fine up to $10,000. As an alternative, you may be required to participate in formal probation, counseling services specifically designed for perpetrators of elder abuse, and to pay restitution to the victim.