Elder abuse is also known as senior abuse under California law. The crime of elder abuse is outlined under Penal Code 368. This statute covers many criminal offenses that could happen in different circumstances to 65 years or older victims. The regulation does protect not only senior citizens but also dependents. The law protects any dependent person with a physical or mental limitation that could impair their ability to carry out their daily activities. The crime of elder abuse attracts hefty fines and a jail term. If you face elder abuse charges in Bakersfield, the Koenig Law Office could help you create a defense against your charges.

Overview Of Elder Abuse

The crime of elder abuse is common in the United States. Most elder abuse cases involve caregivers and family members. Hundreds of elder abuse cases are reported annually, whereby a significant percentage of elders suffer abuse at some point in their lives. Since many Americans are above 65 years, additional cases of elder abuse keep coming up.

An elder is an elderly or disabled individual who relies on other people to meet their basic needs. An elder cannot be self-reliant because of disability or age. Usually, elders, like children, have no strength to defend themselves against abuse. They cannot also understand and report the crimes of abuse against them. This made the Legislature in California come up with a strategy to enhance security for the elders in 1983. The Legislature enacted Penal Code 368 to protect elders after the Santa Ana Police Department filed a request to accord the elderly special legal protection.

In 1986, the Legislature amended the scope of Penal Code 368 to cover all the elderly, including those with sound mental capacities. Therefore, this statute was enacted purposely to enhance security for people aged 65, regardless of their mental or health abilities.

Definition Of Elder Abuse Under California Law

Elder abuse could be any of the following:

  • Financial exploitation, often referred to as elder financial abuse or senior fraud
  • Endangerment and neglect that entails exposing a senior person to a circumstance that endangers their safety and health
  • Emotional abuse that can take the form of ridicule and isolation
  • Physical abuse that means inflicting unjustifiable pain or injury on a senior person

If the prosecutor accuses you of elder financial abuse, he/she must prove the following elements:

  • You committed a financial offense like embezzlement, fraud, or theft
  • You stole property belonging to a person aged 65 years or older
  • You were a caretaker for the person, and you were aware that he/she was elderly

Financial elder abuse can occur in the following ways:

  • Inappropriate changes made to accounts or property
  • Caregiver, friend, or family member steals or uses bank funds belonging to an elder
  • Theft of personal belongings of the elderly
  • Undue influence applied to change a trust or will
  • Trustees misuse or steal funds from a trust
  • Caregiver or family member takes advantage of the mental capacity of the elderly

Willfully And Criminal Negligence

Under California law, the meaning of ''willfully'' is doing something on purpose or deliberately. ''Criminal negligence'', on the other hand, means acting unreasonably so that your actions disregard human life. However, you cannot be guilty of criminal negligence unless you have a legal responsibility to act.

The crime of elder abuse is defined in various ways under California law, including:

Misdemeanor Elder Abuse

If the prosecutor accuses you of misdemeanor elder abuse, he/she must prove the following elements for you to face charges:

  • You willfully or with criminal negligence exposed an elderly person to unjustifiable physical pain or mental suffering
  • Your behavior could have put the life or health of the elderly person in danger
  • You were aware, or you should have been aware, that the victim was 65 years or older

The meaning of unjustifiable physical or mental suffering is pain or suffering that is excessive and unnecessary under the circumstances.

Felony Elder Abuse

If the prosecutor accuses you of felony elder abuse, he/she must prove the following elements for you to face charges:

  • You willfully or with criminal negligence exposed an elderly person to unjustifiable physical pain or mental suffering
  • Your behavior was likely to inflict significant bodily injury or cause death
  • You were aware, or you should have been aware, that the victim was 65 years or older

Examples Of Elder Abuse Offenses In California

The following are the common examples of elder abuse under California law:

  • A person using fraud to convince a 90-year-old neighbor to make them the sole beneficiary in the elder’s will
  • A caretaker ridiculing an elderly patient for being wheelchair-bound
  • Failing to feed an 80-year-old parent who cannot care for himself/herself

Prosecution Of Elder Abuse Cases In California

Several prosecuting agencies are available. For example, the county District Attorney’s Office has special units that convict elder abuse cases. The local police take cases to special units. The prosecutor decides whether to reject or approve the cases, file the charges, or order the detectives to investigate the accusations further.

Several factors could determine if an agency charges or dismisses an elder abuse case. Some of the factors include:

  • The exact type of abuse that you are accused of
  • Where the said abuse took place
  • Whether the crime is a misdemeanor or a felony

Penalties For Elder Abuse In California

Prosecutors often charge a violation of Penal Code 368 as a misdemeanor or a felony, depending on the facts of your charges and criminal record. For example, if the prosecutor charges you with misdemeanor elder abuse, you could face the following penalties:

  • Restitution to the victim involves reimbursing the elder abuse victim any expense he/she could have incurred because of your abuse. For example, reimbursement could include counseling expenses the elder incurred when undergoing counseling for trauma suffered during the abuse. It could also include medical treatment costs the elder incurred in seeking treatment for injuries sustained during the abuse.
  • You could face a fine that does not exceed $6,000. However, if you are a repeat elder abuse offender, you could face an enhanced fine that does not exceed $10,000
  • A jail term that does not exceed one year in a county jail
  • Informal probation or summary probation — You will not need to regularly meet or report to the probation officer.

If the prosecutor charges you with felony elder abuse, you could face the following penalties:

  • Restitution to the victim
  • A fine that does not exceed $10,000
  • A jail term of two to four years in a state prison
  • An additional jail term of three to seven years if the alleged victim sustains great bodily harm or death
  • You could also face a strike on your record in line with California's Three-Strike law if the victim sustains a significant bodily injury.
  • Felony formal probation — The judge could order you to serve formal felony probation. The terms of probation could include meeting with a probation officer regularly.

If the prosecutor convicts you of elder abuse in California, you could face adverse effects on your gun rights. Felony senior abuse charges could strip you of your gun rights. Under California law, convicted felons are not allowed to own or possess guns. 

You could also face negative immigration consequences if the prosecutor charges you with elder abuse. The prosecutor will charge you depending on the facts of your charges. Elder abuse qualifies as an offense involving moral turpitude. If you are a U.S. non-citizen, you could be marked as inadmissible or be deported.

However, if the prosecutor charges you with misdemeanor elder abuse, you could have your charges expunged, provided you do the following:

  • Complete your jail term
  • Complete probation

Defenses Elder Abuse Charges

You can employ several legal defense strategies to contest your elder abuse charges in California. A competent criminal defense attorney can help you create an effective defense. The common defenses include:

Lack Of Substantial Evidence

If the prosecutor accuses you of elder abuse, Penal Code 368 requires that the prosecutor provide substantial evidence showing that you committed the offense. In addition, the prosecutor must provide ample evidence showing no other cause of the injuries sustained by the elder other than your abuse. However, despite the evidence against you, your attorney can help you find a medical professional to prove that the elder's injuries are unrelated to the alleged abuse. For example, the injuries could have arisen because of an accident, age, or ailment. The medical professional could also be able to reveal some facts, like the elderly could be paranoid, senile, or delusional.

You could also refute the claims that you tortured the elderly. You can do this by providing evidence revealing that you took good care of the elderly. For example, you could present receipts showing you bought the required drug prescriptions for the elderly. Presenting records of your regular visit to the physician with the elder could also help you refute elder abuse claims filed against you.

You Were Not Criminally Negligent

The prosecutor must prove that the elder was under your care and you were criminally negligent or you willfully violated PC 368 at the time of injury or abuse. The prosecutor must prove your criminal negligence by showing that you acted in a manner that created a high likelihood of injury to the elder. You cannot face charges under Penal Code 368 if the elder was under your care, but you were only careless when he/she got injured. For example, as a caregiver in a nursing home, you could unknowingly knock an elderly person's leg on a bed while transferring them from the wheelchair to the bed. In this case, if the elder suffers a broken leg, the injury was caused by ordinary carelessness rather than criminal negligence. This incident does not warrant a conviction. Your attorney could help you be acquitted of the charges.

The Victim Was Not 65 Years, Or You Were Not Aware That The Victim Was 65 Years

The victim must be 65 years old under Penal Code 368 at the time of the alleged abuse, and you must have known that he/she was at least 65 years old for you to face the charges. You cannot face charges for this crime if the victim is not 65 years old unless he/she is a dependent adult. In addition, you cannot face charges for elder abuse if the victim did not look 65 years old and you had no reason to believe the victim was at least 65 years old.

Mistake Of Identification

The most vulnerable people in the community are the elders who suffer from dementia or Alzheimer’s. Elders in nursing facilities or those with multiple caregivers always need intensive daily care. Therefore, a mistake of identification and fact is entirely valid if the elder has suffered severe emotional or physical harm. Elder care and medical professionals can offer necessary insight into how the elder can mistake an innocent person for the perpetrator of elder abuse.

Self Defense

In some cases, you could prove you were acting in self-defense or defense of someone else. For example, there are occasions when a dependent person or an elderly becomes physically aggressive and exposes you to the risk of suffering harm. You could prove that you had to use immediate force to avoid the threat and that you did not apply more force than necessary.

False Allegation

Often, many innocent people face elder abuse charges in California. In most cases, the alleged victims of elder abuse lie. With the help of your attorney, you could claim that there is little evidence to support the accusations.

Accidental Injury

In some cases, you could claim that the victim's injury was an accident and you did not have the intent to harm them.

If Victims Of Elder Abuse Can File Civil Lawsuits

Under California Welfare and Institutions Code 15600, a victim of elder abuse can file a civil lawsuit against the defendant. The people covered by this statute include:

  • A dependent adult between the ages of 18 and 64
  • Any individual aged 65 or older

A dependent adult has mental and physical incapability that hinders them from carrying out regular duties. A person who falls under this category can file a civil lawsuit against you if he/she is or has been under your care when the abuse occurred. Most healthcare providers in California face these lawsuits. The elderly or dependent adult could recover the following damages if he/she succeeds with the case:

  • In some cases, the victim could recover punitive damages
  • Compensatory damages

Elder Abuse Statute Of Limitations

An elder can act immediately by reporting elder abuse and filing a lawsuit. Usually, an elder has two years under the California statute of limitations to file an elder neglect or abuse case in court. However, some factors could reduce the period of this limitation. Some of the factors include:

  • Whether the defendant is a healthcare provider
  • Whether the elder intends to raise other causes of action against the defendant
  • Whether the defendant is a government entity

Generally, the elder abuse statute of limitations begins when the abuse happened or when the elder knew about the abuse. Unfortunately, this can be hard to ascertain because most elder abuse crimes in California do not involve one single event. In most cases, elder abuse is ongoing. Additionally, most elders suffer from cognitive impairment, which further complicates the timelines. If the elderly fail to file the lawsuit in time, he/she risks losing the opportunity to recover compensation.

If a victim files elder abuse charges against you after the expiry of the statute of limitations, you use it as the basis of your defense. You can point out that the claim is invalid since it’s not within the statute of limitations.

Related Offenses

Several offenses are related to elder abuse in California. The offenses include:

Battery — Penal Code 242

In California, the offense of battery is outlined under Penal Code 242. Simple battery constitutes any willful and unlawful use of violence or force on another person. Therefore, you could be guilty of this crime even if you did not cause pain or injury to the alleged victim.

Rape —  Penal Code 261

The crime of rape is explained under Penal Code 261 of California law. You could be guilty of this crime if you engage in nonconsensual sexual intercourse with someone else using force, threats, or fraud. Unfortunately, most people in California are often falsely accused of this offense, just like elder abuse. Therefore, a falsely accused defense could be valid to contest your charges.

Criminal Threats – Penal Code 422

The offense of criminal threats in California is defined under Penal Code 422. You could commit this offense by threatening to physically harm or kill another person and:

  • The victim is placed in a state of fear
  • You communicated the threat in writing, verbally, or through an electronically transmitted device
  • The threat is unequivocal

Find A Criminal Defense Attorney Near Me

If you are facing allegations of elder abuse, you should consult a criminal defense attorney immediately. Elder abuse cases are complex, and retaining an attorney with experience in these cases is critical to the outcome of your case. At Koenig Law Office, we have a team of experienced attorneys with a track record of success in defending our clients against elder abuse charges. We can negotiate with the Bakersfield prosecutor to secure a plea bargain and a fair hearing. Contact us at 661-793-7222 to talk to one of our attorneys.