Cases of elder abuse are on the rise, not just in California but all of over the United States. For this reason, the State of California has approved several laws which make such kind of abuse a civil and a criminal offense. With such statutes in place, it is easy to find yourself on the wrong side of the law as far as not caring enough for the elderly is concerned. If you are in Los Angeles, you can connect with the LA Criminal Defense Attorney whenever you are accused of elder abuse, and we’ll help you to navigate through the case.
Legal Definition of Elder Abuse in California
In California, the law forbids physical and mental abuse as well as lack of care for the elderly dependent people. Violating the rules in place can make you a civil or criminal offender to the state. Note that all the statutes in place relate to any needy adult notwithstanding their age.
According to the definitions provided by the Welfare and Institutions Code:
Section 15610.23 defines a dependent adult as any person who lives in the state and is at the age of between 18 and 64, but one who has a mental or physical limitation that limits him/her of the ability to perform regular duties as well as protect his/her rights. This includes people who have physical and developmental disabilities as well as those whose mental or physical abilities have reduced as a result of aging.
A helpless/dependent adult is also defined in Sections 1250.3, 1250.2, and 1250 as a person at the age of between 18 to 64 years, who has been admitted in a hospital and any other healthcare facility that operates round the clock.
An elder, according to Section 15610.27, is any person living in the state and is of the age of 65 years and above.
Elder abuse, according to Section 15610.07 can mean either of the following:
- Physically abusing an elder, causing them physical or mental harm or suffering
- Neglecting the needs of an elder, resulting in physical or psychological distress
- Abusing an elder financially
- Abandoning an elderly person
- Isolation, abduction and any other treatment that could bring harm to an elder
- Depriving a dependent elder goods and services required for his/her physical or mental health.
Negligence, as used in elder abuse can mean any of the following:
Failure of a person in the safekeeping of an elder or one who is responsible for caring for an elderly or dependent adult, for exercising the amount of care that is reasonable for that kind of person.
It could also be used to mean failure by a dependent adult or an elder to exercise the amount of personal care that is required for such a person as him/her.
When Can You Be Charged With Negligence of the Elderly?
Many instances could show negligence on your part as far as elder abuse is concerned:
- If you fail to assist an elder in personal sanitation, or in providing them with clothing food and shelter
- If you fail to provide the needed medical care for an elder for their mental and physical health
- If you fail to protect an elder under your care from any safety or health hazards
- If you fail to protect an elder against dehydration and malnutrition
If an elder fails to satisfy his/her needs as listed above for him/herself as a consequence of mental limitation, reduced cognitive function, prolonged poor health or substance abuse.
Forms of Elder Abuse in California
Elder abuse is a broad term, which can incorporate one or more of the following:
This includes assault, unreasonable restraint, battery among others. Assault, in this case, could be with a deadly weapon or use of excess force on an elder or dependent adult. Prolonged or continuous deprivation of food or water is also a form of physical abuse. Sexual assault is also a form of physical abuse and can be used to mean sexual battery, rape, sodomy, and incest among others. The use of psychotropic medication for punishment or for a period beyond that which the medicine was supposed to be administered is another form of physical abuse.
This form of abuse may be manifested in the form of harassment, verbal abuse or confining an elder to an area for prolonged periods among other things. Anything that will result in the mental suffering of an elder is a form of psychological abuse. This includes some of the things that will cause them fear, confusion, agitation, severe depression, and any emotional distress.
Any intimidating behavior, harassment, threats as well as any deceptive acts or misleading utterances that are maliciously performed to frighten, confuse, agitate or cause severe depression as well as emotional distress of an elder, or dependent adult will all be categorized as psychological abuse.
This can be manifested in the form of a financial investment that was fraudulently made to extort money from a dependent adult or elder. This is mainly an action performed by someone who was trusted enough by the elder but who ended up taking advantage of their situation to steal from them. When a person or an entity obtains a personal property of an elder or a dependent adult for the wrong kind of use with an intention to defraud the elder, this will be a straight case of financial abuse. Anyone seen to assist in defrauding an elder will also be charged with financial abuse.
This entails failure by a person to give proper personal hygiene, clothing, and shelter, and to protect against malnutrition among other things when mandated to taking care of an elder. If an elder is in your care and custody, there are certain things the law requires of you as far as the welfare of such a person is concerned. Failing to meet the requirements of an elder in the degree that a reasonable person in your position would, can see you facing a charge of neglect abuse.
An elder or an adult person may face a similar charge too if they fail to exercise the degree of self-care that is deemed reasonable for a person in a state like theirs. If a person that is left in the care of an elder fails to provide medical care needed for his/her mental and physical needs, this too will be charged as neglect abuse. This form of abuse also includes failure by a person to protect an elder from health and safety hazards as well as prevent malnutrition or dehydration.
This happens when a person stops another or him/herself from having some form of contact with other people, for instance, by refusing to take calls, emails or even accepting visitors. If a person that is left in the care of an elder intentionally prevents him/her from receiving his/her mail, calls or visitors, that person is committing isolation abuse. This could also include telling a prospective visitor that the elder is not available or does not wish to talk to anyone when it is not true. Isolation abuse could also mean false imprisonment, whereby the elder is restrained in one place to prevent him/her from meeting with other people.
This form of abuse applies to a person who deliberately forsakes an elder when they are required to provide care and custody to that elder. If you are in a situation whereby a reasonable person would continue to provide and care for an elder or dependent adult, and you desert them, you may be charged with abandonment.
Elder Abuse as a Felony and a Misdemeanor
Depending on how severe the action was, elder abuse can be treated as a felony or misdemeanor. Each of these categories will carry a different form of penalty and punishment, which range from simple fines to jail terms or even long-term imprisonment.
The question as to whether elder abuse is a felony or a misdemeanor is quite tricky because this form of abuse in itself is grave. For the case to be a felony, the person responsible for caring for an elder must have seriously violated his/her legal duty and as a result, conducted in a manner that caused severe bodily harm or even caused the death of an elder. Misdemeanor charges, on the other hand, are much less severe and can be used on those cases whereby the actions of a caregiver affected the health or an elder but to a less degree.
In the end, it is the judge who will make the final decision on whether the case is a felony or a misdemeanor, based on the circumstances of the individual and the severity of the matter.
In a case of negligent abuse, for instance, criminal negligence will be the kind of carelessness that goes beyond the norm. This will mean that the caregiver failed to exercise reasonable care or conduct and acted in a manner that showed pure indifference to human life. If for instance, the caregiver was unable to provide the basic needs the elder needs for survival, say food and medical treatment, and as a result, the life of the elder was endangered, this could be charged as criminal negligence.
The same will apply to a case whereby a person caused great bodily harm or acted in a manner that directly endangered the life of an elder. The circumstances that created the likelihood of such injury will be considered in determining whether the case will be a felony or a misdemeanor. A caregiver who, for instance, leaves bedsores to get an infection or a person who locks up an elder for days without food or water will be guilty of felony elder abuse.
Elements of Felony Elder Abuse
To be charged for a felony, there must be proof that:
- The accused intentionally or willingly and with criminal negligence, subjected or allowed another person to submit an elder or a needy adult to mental suffering or physical pain that is unjustifiable;
- The accused had a lawful obligation to care for the plaintiff;
- The accused exhibited behavior that was expected to result in serious physical harm or death of the elder in his/her care;
- The accused knew or should have reasonably been aware that the plaintiff was an elder of age 65 years and above.
Elements of Misdemeanor Elder Abuse
For a case to be charged as a misdemeanor, the following has to be proven:
- The accused intentionally, willingly with criminal negligence subjected a senior adult or allowed another person to cause an elder physical agony or some mental suffering that is unjustifiable;
- The defendant knew that he/she had a lawful responsibility of taking care of the victim;
- The defendant exhibited behavior that could have put the life and/or the wellness of the victim in danger.
Unjustifiable mental suffering or physical pain, as used here, will mean any pain, whether physical or mental, which has been unnecessarily or remarkably inflicted on the victim.
Punishments for Elder Abuse in California
Elder abuse in California is a serious crime that is covered under Section 368. The offense is a wobbler, and so, it can be treated as a misdemeanor or as a felony as indicated above. There are many types of people who can be accused of elder abuse, as long as you have been suspected or caught in the act of violating the elder abuse laws. Some examples of this offense include:
- Employees in nursing homes who are distrusted of instigating emotional, sexual or physical harm to an elder in their care. These may include nurses, doctors, and other healthcare workers;
- Relatives who are not providing the necessary care needed for better health and emotional state of an elder in their care;
- Relatives who divert checks from National Social Security written to an elder in their care or those who cause any other kind of financial harm to an elder;
- An adult who could be a spouse or a child who is deliberately withholding medicines and physical needs like water and food from a spouse or a parent, thereby causing them physical pain.
Just like the offense itself, penalties for elder abuse can be severe in California. For anyone that is facing similar charges, this can be a stressful experience. Depending on the circumstances surrounding your case and how much defense you put up during the trial, the prosecutor could charge you with a felony or a misdemeanor.
For a misdemeanor elder abuse charge, you might face a county jail term for a period of not more than one year, plus a fine not exceeding $6,000.
A felony elder abuse charge will be a more severe crime, and so, if found guilty, you may end up in state prison for a period not exceeding four years. If the elder had suffered severe harm on his/her body and is of the age below 70 years, your prison time may be increased by about three years. If, on the other hand, there was serious bodily harm and the victim is over the age of 70 years, you could get more years in state prison by about five years. If on the other hand, the abuse resulted to the death of the elder, your prison time will be increased by five years if the victim was below the age of 70 years, and by seven years if the elder was above the age of 70 years.
Possible Legal Defenses for Elder Abuse
Fortunately, there are several legal defenses that one can use to counter claims of elder abuse, which your criminal defense lawyer can use to help with your case. These are:
False accusation: This is the most common defense that most people use when faced with an elder abuse case. The law requires social workers, healthcare providers, and even law enforcers to report any suspected form of elder abuse and they can face a misdemeanor charge if they do not do that. If signs of injury have been seen, or some deep depression or any of these individuals have heard some puzzling comments made by an elder, they are required to report the matter immediately. Sometimes elder abuse can be informed if a social worker or a healthcare provider feels that an elder could be mistreated or has been neglected. That is why it is uncommon to find such reports without some form of evidence or support.
However, false accusation could hold ground if there was no form of coercion or threats in such cases as financial abuse on an elder. If for instance a caregiver was given money by an elder to buy their gifts or as a gift, this may not appear as ethical, but it cannot be treated as financial abuse since there is no evidence of physical harm or threats forcing the elder to give those gifts.
Lack of willful intentions: For an elder abuse case to hold, the defendant must have shown willfulness or a plan to cause harm to the elder. If for instance the injuries sustained were created by accident, there will be no evidence of a violation, and so, the defendant may not be charged under Section 368. If for instance it is a case of a caregiver who only got carried away for an instant and the elder fell, sustaining severe injuries such a broken limb, the caregiver may not be guilty of elder abuse.
Lack of sufficient evidence: In every case, there must be adequate evidence to prove that a defendant is guilty of the offense. If for instance, the prosecutor is unable to confirm that an injury you caused is what resulted to the bodily harm, or you acted out of pure negligence to cause physical or emotional damage to an elder, you may not be charged. It is important to note that just because harm occurred and the defendant was the caregiver, it is not sufficient to criminalize a person.
In the case of an elder who had dementia or could not recall the events accurately, there must be enough evidence that he/she was hurt or he/she was not given the necessary care or medication for a considerable amount of time. There must be proof that the elder is malnourished too or had open sores or wounds that cannot be ignored. If there is enough circumstantial evidence, you will not be able to prove to the judge that you indeed took proper care of the elder. This will apply even if you have records showing that you bought adequate food for them, or you took them to hospital or medical checkups and anything else that shows sufficient care on your part.
Offenses Related to Elder Abuse
Battery offense as per Section 242, whereby the battery is used to mean aggressive behavior towards another person or use of excessive force or violence against another person. This charge can be applied on a caregiver who allegedly slapped or punched an elder, choked them, or pushed them down, and it can be charged alongside elder abuse charge. If the injury sustained as minor, the charge would be a misdemeanor, and so, the defendant will face a jail sentence of up to 6 months and a fine not exceeding $2000. If the injuries were severe and maybe the elder sustained a scarring or a broken bone, the offense will be a wobbler. If it is a misdemeanor, it will be charged as above but is it is a felony, and the defendant could be sentenced to up to four years in state prison.
Other offenses include rape (Section 261), criminal threats (Section 422) and domestic violence/battery (Sections 243 and 273.5).
If you are being charged with a crime feel free to contact our Los Angeles Criminal Defense Lawyer for a free consultation.