Elder Abuse

The elder abuse laws in California consist of a wide variety of crimes and can be perpetrated in various scenarios. The legal definition of an “elder” in California is any person who is over sixty-five (65) years of age (also referred to as a “senior”). It is a serious crime and it is aggressively prosecuted by the District Attorney (also known as the DA). It is delineated in the Penal Code of California in section 368 PC, also referred to as the elder abuse statute. Officially, it is the act of willfully perpetrating physical and/or mental suffering of an elder as well as allowing a scenario where an elder is abused. Essentially that means the elder abuse charge is when the defendant both directly abuses the elder and/or indirectly abuses the elder.

Elder abuse is a crime that is often perpetrated by a caretaker/caregiver (which state law defines as an adult in charge of caring for an elder). The caretaker’s duties are wide-ranging and can include even the most basic tasks which are necessary for the elder’s health and survival. However, it can also be perpetrated by a stranger or someone who is not the primary caretaker, such as a nurse or physician. Elder abuse can also be perpetrated by a stranger.

The forms of elder abuse are as follows:

1. Physical abuse, which includes inflicting harm or pain, sexual assault, and physically restraining or using chemicals to restrain the elder. This type of abuse is seen frequently when a caretaker “punishes” the senior for their behavior (usually the result of senility and/or dementia).


2. Emotional abuse, which includes causing undue mental anguish (such as agitation, confusion, or fear) via threatening, menacing, and/or harassing the elder. This includes actively isolating the elder from anyone else and the prevention of receiving mail, phone calls, or visitors.


3. Abandonment, in which the caretaker deserts the elder and willfully puts them in a situation where the elder’s health or sense of safety is actively threatened.


4. Neglect, in which the caretaker fails to fulfill their fundamental responsibilities. These include providing shelter, clothing, and food as well as taking care of the elder’s personal hygiene and protecting them from dangers or hazards. Dereliction of these duties may result in malnutrition, exposure, or even death in some situations. The DA will try to prove that the defendant was guilty of “criminal negligence” in these cases.


5. Financial abuse/exploitation, in which the caretaker commits a form of fraud and exploits the financial assets, property, and/or funds of the senior. This also includes the exploitation of the elder’s social security, pension, and/or disability checks. Caretakers and family members frequently have comprehensive access to an elder’s finances and bank accounts and can take advantage of the elder if they are no longer competent enough to handle their own finances.

Elder abuse can also take the form of denying fundamentals like food and water as well as medical care. This can include the misuse of medications as elders are a population that takes disproportionately higher numbers of medicines as compared to the general population. This is because elders, as an overall group, suffer from higher rates of disease and medical impairments.

The elder abuse statute was signed in to law in the 1980’s as instances of the crime have steadily increased. Consequently, it is a fairly common crime, with some studies estimating that 1 out of every 7 senior citizens are the victims of elder abuse. This has influenced district attorneys all over the state of California to prosecute the crime as vigorously as possible. There are various district attorneys’ offices that have even developed dedicated Elder Abuse Units to both prosecute and investigate crimes of elder abuse. Furthermore, the prosecution will pursue both criminal and civil charges and California law treats elders as a group afforded special protections.

To be found guilty of any type of crime, the prosecutor must prove that the defendant acted with what is referred to as mens rea; in other words that they acted with "criminal intent”. Criminal intent means that the defendant made deliberate and/or intentional decisions to act a certain way in order to attain criminal results. Furthermore, the district attorney (DA) has to prove certain facts in order to secure a conviction

These facts, also referred to as “elements of the crime”, consist of the following:

1. Unjustified physical and/or mental pain and anguish was willfully inflicted by the defendant or the defendant allowed another person to subject the elder to unjustified physical and/or mental pain and anguish.


2. The circumstances under which the defendant knowingly acted were likely to result in great bodily injury and/or death in the victim.


3. The defendant was aware that the victim was an elder, defined as a person over sixty-five (65) years old, and the defendant acted specifically to take advantage of the elder’s vulnerability.

These elements of the crime are what the DA consider in a felony elder abuse charge. If it is a misdemeanor elder abuse charge, then these elements are nearly identical except for two crucial differences. The first is that the elder abuse happened as a result of criminal negligence rather than an active assault. Criminal negligence is defined under California law as the act of disregarding risks to safety and life that are known and obvious to any person of sound mind.

Additionally, misdemeanor charges are pursued if the circumstances under which the defendant knowingly acted were likely to endanger the health or life of the elder. This is distinct from the felony charge, in which the circumstances are likely to produce great bodily injury or even death. That means that the DA can still pursue charges if the defendant only endangered, either actively or passively (via criminal negligence), the victim without any injury or negative consequence occurring.

The DA must also prove that the victim acted willfully, meaning that their actions were done deliberately or with an explicit sense of purpose. This means that a mistake in judgment, typical carelessness, or honest error do not constitute actual crimes. The crucial aspect of the prosecution’s case is whether the defendant was criminally negligent versus having committed the crime willfully and/or with malicious intent. Furthermore, California law places higher expectations on caretakers to provide a safe and healthy environment for the elders under their care.

The elder abuse statute also applies in cases where a caretaker is responsible for what is known as a “dependent adult”. California law defines a “dependent adult” as anyone between the ages of eighteen (18) and sixty-four (64) who are in need of care due to some physical or mental disability. The law was essentially written to protect the lives and health, as well as the financial security and assets, of vulnerable populations of elders and dependent adults.

That means that the elder abuse statute is an all-encompassing law that covers a lot of ground. It is also likely that the DA will include various related charges in an attempt to buttress their case and secure a conviction. The law is complex and the very best attorneys and experts are needed to develop an effective legal defense.

There are various tactics to fight elder abuse charges. These depend on the specifics of the case like the overall context as well as the elements of the crime. It is possible to argue that there is insufficient evidence to prove that the crime occurred, or that the police and/or district attorney unlawfully gathered evidence. Getting pieces of evidence dismissed, due to improper protocol and evidence-gathering methods, before they are presented to the jury is a fundamental strategy in a criminal defense. This includes the police using coerced confessions due to police misconduct.

Furthermore, a skilled attorney could very effectively call in to question the testimony of the accuser. They can argue that the elder suffers from senility and/or dementia. Since paranoia is one of the primary symptoms of dementia, the defense can argue that the accuser is being paranoid and is no longer in control of their mental faculties. This makes them susceptible to confusion, agitation, paranoid thinking, and false accusations.

Overall, this is a crime that has a higher rate of false accusations than other offenses. An elder suffering from the mental impairments that come with age is prone to various lapses in judgment and perception. This can easily render their testimony invalid and their memories of events highly suspect. There is also a preponderance of family conflict in regards to an elder’s finances. Various factions in the wider family can make false accusations against one another in order to gain control of the elder’s finances or assets or to influence the elder’s decisions in regards to a will or an inheritance. This is particularly true in cases where the elder has significant assets or is the recipient of various forms of income such as disability, social security, and/or veterans’ benefits.

If the alleged elder abuse consisted of an allegation of physical abuse, then the defense can argue that the defendant acted in self-defense or in defense of someone else. Dementia and senility also cause people to frequently become violent and unreasonable. It is also not uncommon in a hospital setting to have to use some form of restraint to placate an elder who has become physically violent due to the agitation and paranoid thinking associated with dementia and/or senility.

If there are allegations of criminal negligence, then the defense can argue that the defendant was not criminally negligent but rather made an error in judgment or an honest mistake. If, for example, there are allegations that the defendant purposefully withheld the accuser’s medications and are now being charged with misdemeanor elder abuse (due to criminal negligence), then the defense can argue that it was simple carelessness.