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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:
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.
Elders are frequently medicated and may suffer from various mental and/or physical impairments that impede their ability to protect or care for themselves as well as recognize and/or report criminal activity. California state policy essentially considers elders to be a vulnerable population who need specific and special protections under Penal Code 368. This is because elders are frequently dependent on others, primarily their caretakers and/or family members, to fulfill their basic needs.
This special legal protection is nearly identical to how California law treats minors (any person under the age of 18). Minors are also considered to be a vulnerable population who need specific provisions in the law to protect them from abuse and/or neglect.
Elder abuse is generally treated as a form of domestic violence as it is usually perpetrated by someone who is close to the elder. However, this is not always the case and the relationship between the victim and defendant does not have to be close or intimate. It is absolutely crucial to understand that PC 368 protects all elders, not just those who rely on caregivers. Even if the defendant is a total stranger to the elder being abused, the charge of elder abuse could still be applied to the defendant. California law is very unambiguous as to who constitutes an “elder” (any person over the age of 65) and PC 368 was written explicitly to protect elders.
The elder abuse statute is what is known as a “wobbler” crime. This means that the prosecuting agency, usually the DA’s office, can charge it as a misdemeanor (less severe offense) or a felony (a more severe offense). In other words, the elder abuse statute “wobbles” between the two classifications of misdemeanor and felony. It is up to the prosecutor’s office to decide which type of charge they will pursue. They will generally try and apply the most stringent interpretation of the law, though the specific facts of the case as well as the defendant's criminal record will influence how they decide to prosecute.
When the DA decides to prosecute the elder abuse as a misdemeanor, the potential punishment can consist of up to one (1) year in the county jail and/or a fine of six thousand dollars ($6,000). If the DA decides to pursue a felony charge of elder abuse, then a conviction may entail a sentence of two (2), three (3), or four (4) years and a fine of up to ten thousand dollars ($10,000).
Furthermore, if great bodily injury is suffered by the victim, then the term in prison could increase by three (3) years when the victim is under seventy (70) years old or it could increase by five (5) years when the victim is over seventy (70) years. If the victim died due to the alleged felony elder abuse then the sentence in the state prison could increase by five (5) years when the victim is under seventy (70) years or it could increase by seven (7) years when the victim is seventy (70) years old. “Great bodily injury” is specifically defined under California law and includes any injury that is permanent or severe.
If the offense is neglect, abandonment, and/or reckless behavior, then the DA will generally pursue a misdemeanor charge. This is also true if the offense put the elder in danger but did not actually injure them. This is also a “gross misdemeanor”; this is an offense that is more serious than a simple misdemeanor but not serious enough to merit a felony charge. However, if the instance of elder abuse was an active assault or it resulted in great bodily injury, then more serious felony charges will be filed by the DA.
Furthermore, elder abuse is a type of domestic violence. That means it is related to a large group of other offenses that can encompass physical and mental assault as well as financial abuse. Some related charges include assault (California Penal Code, Section 240), domestic battery (California Penal Code, Section 242), theft by fraud, deceit, or trick (California Penal Code Section, 484), theft from an elder or dependent adult (California Penal Code, Section 368(d)), grand theft (California Penal Code, Section 487), and embezzlement (California Penal Code Section, 503). There is considerable overlap between these related charges and the DA will pursue every charge that the defendant allegedly perpetrated during the commission of the crimes.
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:
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.