Elder abuse entails placing an elder or a dependent person under conditions or circumstances that may inflict significant bodily injury or death. Elder abuse is a crime under California law outlined under California Penal Code 368 PC. Any person who is aged 65 years or older is considered an elder, according to California law. The Los Angeles Criminal Defense Attorney handles all cases relating to elder abuse for defendants.
Overview of Elder Abuse
California law defines elder abuse in various ways. You may be guilty of this crime if you physically inflict injury or unjustifiable pain on a senior citizen. Abuse may also be emotional rather than physical. For instance, you may inflict psychological abuse on an elder by causing them mental suffering through ridicule or isolation. Neglect and endangerment also qualify as a form of abuse. You may face abuse charges if you place a senior person over the age of 65 years in a situation that endangers his/her health and wellbeing. Another common form of elder abuse is financial abuse. Financial abuse entails extorting money or committing financial fraud against a senior person.
Some specific examples of elder abuse may include sexually molesting a dependent person or a person over the age of sixty-five years. If you intentionally withhold medicine from an ailing senior person, you may be guilty of abuse. You may also face elder abuse charges if you intentionally alter a senior person's checks for your ill financial gain.
In the United States, elder abuse is a prevalent crime. A study revealed that of every seven elders in the United States, one has ever been a victim of elder abuse at some point in his/her life. Both real and false allegations of elder abuse are likely to increase as more Americans exceed the 65-year mark. In most cases, abuse results from family members of the seniors or caregivers of the senior.
Dependent adults and elders have little or no power to protect themselves against abuse. This category of people has little to no ability to understand and report criminal activities against them. It is because of this factor that in 1983, the Legislature recognized the need to offer enhanced security to seniors and dependent adults. A dependent adult is a person who is dependent on other people to meet his/her basic needs. A dependent adult is unable to be self-reliant, mainly due to his/her age or disability. In the face of abuse, an elder is more like a child as he/she cannot defend himself/herself.
The Santa Ana Police Department filed the request to accord seniors and dependent adults special legal protection. In response to this request, the Legislature established the Penal Code 368 PC in 1983 with the aim of protecting elders. The Legislature further amended the scope of Penal Code 368 PC in 1986 encompassing all elders, even those who have functional mental capabilities. Therefore, Penal Code 368 PC protects any individual above the age of 65 years irrespective of his/her health or mental abilities.
How the Court Handles Elder Abuse Cases
In California, prosecuting agencies handle elder cases differently from other cases. A well-specialized deputy prosecutor oversees elder abuse cases beginning from the time a lawsuit is filed to the time of trial as well as sentencing. Direct telephone numbers to elder abuse units are often available. This makes it easy for members of the public to report all cases of elder abuse seamlessly. However, rarely does the public report cases of elder abuse. In most cases, the police identify and report cases of elder abuse.
How do the police learn about cases of elder abuse? Often, police learn about elder abuse from concerned friends or family members of the alleged victim of elder abuse. Police may also get elder abuse information from medical practitioners or caregivers. Adult protective services also commonly report cases of elder abuse.
Upon receiving a report of elder abuse, the prosecuting agency may appoint a detective to investigate the alleged violation. The agency may choose to accept or to reject the elder abuse charges.
It is common for innocent people to face elder abuse charges. It is common for senior persons to make unfounded claims mainly due to confusion and failing memory. It is also common for one family member to accuse another family member falsely. The motivation for false accusations is to acquire control over the assets of an elderly person. It is also common for a senior person's friends and family to accuse a caregiver wrongly of elder abuse without sufficient evidence.
Different agencies may prosecute an elder abuse case. In choosing the agency to prosecute an elder abuse case, several factors count. The factors include the location where the alleged abuse took place and the exact type of elder abuse. The suitable prosecuting agency is also determined by whether the abuse is a misdemeanor offense or a felony offense.
Some prosecuting agencies may specialize in handling misdemeanor elder abuse cases while others specialize in handling felony elder abuse cases. Other prosecuting agencies may handle elder abuse cases that take place in nursing homes. It is also common for agencies to specialize in financial, emotional, or physical elder abuse.
Elements of Elder Abuse
To face charges for elder abuse under California law, the prosecutor must prove several elements of the crime. Elements of elder abuse may differ for misdemeanor and felony cases. For a misdemeanor elder abuse case, the prosecutor has to prove that:
- You purposely or with criminal negligence subjected a senior to unjustifiable mental pain or physical suffering. At times, you may not directly commit the crime; however, you would still face charges for allowing another person to inflict abuse on an elder.
- You are only guilty if you were aware or reasonably, you should have known that the victim was an elder (a person above the age of 65 years).
- For misdemeanor charges, it must be clear that your actions would have endangered the life or the health of the senior.
For felony elder abuse, the prosecutor must prove that:
- You intentionally or with criminal negligence subjected a senior person to emotional suffering or physical pain or allowed another person to do so.
- The prosecutor must further prove that at the time you committed the offense, you were aware or reasonably should have been informed that the victim was an elder
- It must be evident that your actions were likely to inflict significant bodily injury on the elder or even cause death
To face elder abuse charges, it must be apparent that you inflicted the abuse on purpose. It must also be evident that you acted in criminal negligence. Criminal negligence is different from ordinary negligence. Your actions qualify as criminal negligence if they exceed common mistakes or common carelessness. If your actions are a clear indication that you have no regard for human life, you may be guilty of criminal negligence.
An example of criminal negligence may include denying an aged parent, whom you live with, food, and care for a prolonged period. For instance, you deny your aging father food and sanitation for days; you may be guilty of criminal negligence.
It is important to note that to be guilty of elder abuse, it is not necessary for the elder to suffer the intended pain or suffering. As long as the prosecutor proves that the elder was at risk of great bodily harm or injury, you may face abuse charges.
Nursing Home Abuse
It is common for elders to be victims of nursing home abuse. Nursing home abuse may consist of physical abuse, including battery against a senior person. It is also common for elders to experience sexual abuse or assault in nursing homes. In nursing homes, elders may also experience emotional abuse, such as ridicule and isolation. Other forms of abuse may include financial fraud and neglecting or endangering an elderly person.
For nursing home elder abuse, prosecutors may file criminal and civil lawsuits against people who are in direct contact with the elderly person including nurses and nursing assistants. Lawsuits may also be against nursing home administrators or people in charge of supervising the nursing staff. In some cases, an elder abuse lawsuit may be against the owners of a nursing home.
Financial Elder Abuse or Senior Fraud
If you steal or embezzle money or other property from an elder, you may be guilty of financial elder abuse or senior fraud. The California Penal Code sections 368(d) and 368(e) outlines this form of fraud. You may face charges for this offense if you mismanage money, property, or other assets that belong to as a senior person.
Some specific examples of financial elder abuse may include:
Failing to pay an elderly person's bills yet you are entrusted to pay the bills
Failing to purchase the necessary items for an elder, yet you are entrusted with the task of buying the items. For instance, you may be guilty if you fail to buy food, clothing, or medication for a senior
You may also face financial elder abuse charges if you intentionally use an elderly person's ATM or credit card to make an unauthorized payment or cash withdrawal
If you fraudulently make unauthorized changes to an elderly person's will or power of attorney, you may face charges under California Penal Code sections 368(d) and 368(e).
Cases involving senior fraud or financial elder abuse are the most difficult to investigate. Adult protective services often resolve cases involving physical or emotional abuse to seniors within 30 days. However, for cases involving financial elder abuse, it may take the Adult protective services one to two years to resolve. In some instances, cases of senior abuse in California involve Medi-Cal fraud, and these lead to more time-consuming investigations.
This is mainly because most seniors do not admit that they have fallen victim to financial fraud as they are embarrassed to admit to being victims of fraud. On the other hand, the senior may fail to disclose a case of fraud in an attempt to protect the guilty family member from the associated legal repercussions. In other instances, a senior may fear to report financial abuse for fear of isolation or the fear of suffering physical abuse in the hands of the caretaker.
Offenses Related to Elder Abuse
There are several offenses, which are closely related to the California Penal Code 368-Elder abuse. In most cases, people commit these offenses in connection with the elder abuse offense. The related crimes also share some elements with Elder abuse. Some of the related offenses include:
Under the California law 242 PC, battery refers to the illegal use of violence or force on another person. You may face battery charges alongside elder abuse charges if you intentionally use violence or force on an elderly person. For instance, if you violently attack or hit a senior, prosecutors may charge you with battery.
A battery offense is a misdemeanor if it does not cause great bodily injury to the victim. The applicable penalties may include six months in a county jail or a fine not exceeding $2,000. If the battery causes significant bodily injury, it may be either a misdemeanor or a felony. The penalties may include serving one year in a California county jail. For felony offenses, you may serve imprisonment not exceeding four years.
You may face charges under California law 261 PC if you indulge in non-consensual sexual intercourse with an elderly person. On top of receiving elder abuse charges, you may face additional rape charges.
In most cases, elder rape cases entail being sexually intimate with an elderly person who has no ability to give sexual consent. Most elders are incapacitated or too weak to fight sexual abuse.
Other offenses related to elder abuse include murder under California law 187PC and involuntary manslaughter under California law 192 PC. You may face these charges if the elder abuse results in the death of the victim.
If you threaten an elder making him/her experience fear, you may face criminal threats charges under California law 422 PC.
Penalties for Elder Abuse
After committing an elder abuse offense, you may face misdemeanor or felony charges. The charges you receive will depend on your criminal history and the facts of your case.
For a misdemeanor elder abuse conviction, you may face any or all of the following consequences:
- A jail sentence not exceeding one year in a county jail
- Summary probation also known as informal probation- This probation will not require you to regularly visit the probation office or meet with the probation officer
- A fine not exceeding $6,000 for a first-time elder abuse offense. For repeat elder abuse offenses, you may face enhanced fines not exceeding $10,000.
- Restitution of the elder abuse victim- this entails reimbursing the victim of elder abuse any cost that he/she may have incurred because of the abuse. This may include medical expenses incurred in seeking treatment for injuries incurred during the abuse. It may also cover counseling costs the victim incurs when seek counseling for the trauma suffered during the abuse.
- Counseling - The court may also recommend counseling for a defendant in elder abuse cases.
For a felony elder abuse conviction, you may face some additional charges under California law. The charges may include:
- Imprisonment for two to four years in a California state prison- You may face a consecutive three to seven years imprisonment if the victim of elder abuse suffers great bodily harm or death. Still, if the victim suffers great bodily injury or death, you may earn a strike on your record under California's three-strike law.
- Fines – For a felony elder abuse offense, you may pay fines not exceeding $ 10,000.
- Felony Formal Probation- The court may also recommend formal felony probation. The conditions of formal probation include regularly meeting with a probation officer. You may also have to make regular visits to the probation office.
Other consequences for felony elder abuse charges may include restitution of the victim and counseling.
Common Defenses of Elder Abuse Charges
Innocent people face false allegations of elder abuse. Often, seniors suffer from illnesses and conditions that have similar signs to physical abuse and neglect. It is therefore common for innocent caretakers to face false accusations of elder abuse. It is hard for law enforcement officers to distinguish between signs of physical abuse and the effects of illnesses. A law enforcement officer may report a case of elder abuse while in the real sense, he/she may not be sure if the elder has suffered actual abuse.
Law enforcement officers may face charges for failing to report suspected elder abuse. However, the officers do not face any charges for wrongly accusing innocent people of elder abuse. It is for this reason that many innocent people face false accusations of violence. There are several ways of fighting elder abuse charges:
You Did Not Act Willfully
You can only face elder abuse charges if it is clear that you willfully or intentionally exposed a senior person to harm or risk of harm. Therefore, you can defend yourself in court by asserting that you inflicted injury on an elder by accident. You can prove that your conduct did not signify criminal negligence. This way, the prosecutors cannot prove that you are guilty.
For example, you may be lifting your elderly father from the wheelchair to place him on the bed. Accidentally, you lose your grip, and your parent falls to the ground and breaks his hip. You cannot face elder abuse charges as you did not intentionally drop your father. You did not act in criminal negligence, but it was through an accident that your father fell.
You Were Falsely Accused
You may also assert that you are a victim of wrongful arrest or a false accusation. There are many reasons as to why another person may choose to accuse you of elder abuse falsely. For instance, a family member may falsely accuse you, especially if the senior person has entrusted large sums of money on you. At other times, the false accusations may be based on jealousy and malice. At times, the accuser may mistake signs of illness with abuse.
Another Person Abused the Victim
The senior person may have undergone abuse, but not by you. Cases of mistaken identity are prevalent in cases of elder abuse. For instance, another person may visit and abuse a visitor without your knowledge. However, if you are the main caregiver, everyone would assume that you carried out the abuse.
On the other hand, you may have been in a prior disagreement with the victim of elder abuse. Family members and friends may assume that since you were in dispute with the victim, you inflicted the injury.
Lack of Sufficient Evidence
For a prosecutor to accuse you of elder abuse, he/she must prove beyond a reasonable doubt that you executed the crime. The prosecutor must prove that there is no other explanation for the injuries suffered by the elder other than you inflicted the damages on the elder.
Your attorney may seek the services of an expert to prove that the signs exhibited by the elder are not due to abuse. The symptoms may be due to an illness, aging, or an accident. The expert may also unearth some additional facts. For instance, the expert may establish that the victim is senile, delusional, or paranoid.
You may also deny allegations that you have tortured an elder. For instance, you may provide proof showing that you care for the elder. This may include receipts indicating that you purchase all the necessary drug prescriptions for the elder. You may also provide records of visits you make to the doctor with the elder. This may help to defy the accusations of elder abuse against you.
Caring for an elderly person can be emotionally draining. Caring for a senior person may lead to intense physical and emotional demands on a regular basis. In your defense, your attorney can explain to the court that your actions were unintentional and isolated. For instance, your attorney may clarify that your actions were because of emotional breakdown. This affirmation may earn you some sympathy and reduce the severity of your sentencing by the court.
Contact a Los Angeles Criminal Defense Attorney Near Me
If you are currently facing elder abuse charges, you should seek legal counsel and representation. The Los Angeles Criminal Defense Attorney can help you fight elder abuse charges. Contact us at 310-564-2605 and Speak to one of our attorneys today.