Elder Abuse

ELDER ABUSE – PENAL CODE SECTION 368

Overview:

Individuals over the age of 65, as well as dependent adults between the ages of eighteen (18) and sixty-four (64) receive special protection under California law. These protections apply in several areas, including physical and mental abuse, neglect and financial exploitation. The additional protection these groups receive is not unlike the safeguards in place for children.

Anyone who engages in these acts, with respect to an elder or dependent adult, can be prosecuted under Penal Code section 368. Additionally, the person may also be charged with the underlying crime (e.g., battery or theft.)

The reason that elders and dependent adults receive this special protection is that the state of California recognizes that these groups are especially vulnerable and are subject to confusion, impairment both physically and mentally, and other conditions that contribute to their heightened vulnerability. These groups are also less likely to report crimes or provide testimony in court.

  

What is Elder Abuse:

Elder Abuse encompasses a number of acts perpetrated on someone age sixty-five (65) or above.  It includes:

  • Physical Abuse – Intentionally inflicting unjustifiable physical pain or mental suffering:
  • Psychological Abuse - Extended periods of confinement, verbal abuse, harassment, exposure to graphic or unsettling media, etc.;
  • Neglect – Placing the Elder in a situation where his or her health is endangered, failing to provide for the elder's reasonable hygiene or nutrition, clothing, shelter, etc.; 
  • Financial exploitation – theft or embezzlement in respect to an elder; fraudulent investments, extortion or abusing a position of trust for improper financial gain;
  • Abandonment - Similar to neglect, but much more severe. Essentially, ignoring the elder person completely.
  • Isolation - Preventing the elder person from having contact with friends or family via visits, phone calls, mail, etc.

As described here, elder abuse is a crime. It is also a civil wrong that can be prosecuted by a plaintiff in a civil proceeding. However, the definitions there are somewhat different, and, of course, the burden of proof is much less than it is in a criminal proceeding.

 

Specific Examples of Elder Abuse:

Elder abuse can be any theft crime, so long as the victim being someone over 65, such as robbery, auto theft, or grand theft;

  • Any crime of violence with the victim being an elder, such as assault and battery, false imprisonment, or manslaughter;
  • Allowing an elder for whom you are a caretaker to live in squalid conditions, or to go without sufficient food or water;
  • Forging the signature of an elder on a check, or misusing an elder’s credit card;
  • Doing some work on the home of an elder, but charging an unconscionable fee or not completing the work in a workmanlike manner;
  • Caring for the financial affairs of an elder and embezzling some of the elder’s money through taking money from their bank account, or writing yourself checks and having the elder sign them. 

 

Mandatory Reporting of Elder Abuse:

There are certain classes of people who are deemed to be mandated reporters of elder abuse. These individuals can be prosecuted under Welfare and Institutions Code section 15630 if they become aware of elder abuse being committed by another person, but fail to report it.

Mandated reporters include health care providers, adult care custodians, clergy members, employees working for local law enforcement, adult protective services or any other person who assumes responsibility for custody or care of elders or dependent adults.

When a mandated reporter observes behavior that appears to constitute elder abuse, or has that kind of behavior reported to them by the elder person; they are required to immediately (or as soon as reasonably possible) report that behavior to the appropriate authorities. In any case, the report must be made no more than two days after the duty to report arises.

There are some situations where a mandated report may be informed of behavior constituting elder abuse by the elder, but is not required to report it. For example, if a health care provider is informed of elder abuse by the elder, but that elder person experiences dementia or mental illness, the health care provider is not aware of any corroborating evidence of the abuse, and based on their professional assessment the abuse did not actually happen; then the mandated reporter does not need to make a report. 

Failure to report elder abuse is, in most cases, a misdemeanor. Simple failure to report is punishable by up to six (6) months in jail, and/or a fine of up to $1,000.00. If, however, the elder abuse which the mandated reporter failed to report results in great bodily injury or the death of the elder person, the criminal penalty increases. In that case, it is considered a felony and the mandated reporter can be sentenced up to one year in jail and a fine of up to $5,000.00. 

  

How Does a Prosecutor Prove Elder Abuse:

Proving that a defendant is guilty of elder abuse in violation of Penal Code Section 368, the prosecutor has the burden of proving the following elements:

  • Misdemeanor Physical Elder Abuse:
    • (1) The defendant intentionally (willfully) or negligently to a criminal degree, either subjected an elder to unjustifiable or unreasonable mental suffering or physical pain; and
    • (2) The circumstances surrounding the defendant's conduct were such that the health or life of the elder person may be endangered; and
    • (3) the defendant knew, or should have known, that the victim was age sixty-five (65) or over.
  • Felony Physical Elder Abuse:
    • (1) The defendant intentionally (willfully) or negligently to a criminal degree, either subjected an elder to unjustifiable or unreasonable mental suffering or physical pain; and
    • (2) The circumstances surrounding the defendant's conduct were such that great bodily injury or death were likely to be produced; and
    • (3) the defendant knew, or should have known, that the victim was age sixty-five (65) or over.
  • Financial Elder Abuse:
    • (1) The defendant commits any financial crime; and
    • (2) The victim of the financial crime is age sixty-five (65) or over; and
    • (3) the defendant knew, or should have known, that the victim was age sixty-five (65) or over.

The above elements for elder abuse as it relates to elders also applies to dependent adults aged eighteen (18) to sixty-four (64.) The only difference is that the defendant would need to know or should have known that the victim was a dependent adult, rather than an elder.  

 

Penalties For Violating Penal Code Section 273.6:

A violation of Penal Code Section 368 can be either a misdemeanor or a felony. Physical Elder Abuse, if charged as a felony can carry a sentence of two, three, or four years in prison.  If in committing the abuse one inflicts great bodily injury, there is a sentence enhancement of 3-5 years depending upon the age of the elder. (Under age 70, or age 70 or older).  In some cases, the Court may grant probation, with the option of sentencing up to a year in the county jail.  In deciding whether to grant probation, the Court will look at the defendant’s prior record, the severity of the loss or injury, whether there was one act, or a series of acts, and the character traits of the perpetrator.

In regards to financial elder abuse, the sentence also can be two, three, or four years in state prison.  Should there be a prison sentence, the Court will look at circumstances in mitigation and circumstances in aggravation in determining the length of the prison sentence.  If the taking from the elder is less than $950 the matter is a misdemeanor and can be punished by up to three years on probation and one year in the county jail.  If the taking is in an amount over $950 the matter can be charged as either a felony or a misdemeanor.  If the matter is charged as a felony the sentence can include prison time or time in the county jail up to one year.

As to either crime – financial elder abuse, or elder abuse involving infliction of physical suffering, there may be sentencing enhancements.  The enhancements might be if there are prior strikes, which would double any sentence, that of the age of the elder (one year enhancement if the elder is 75 years or older), and as stated previously if great bodily injury or death is the result.

 

Common Defenses to Elder Abuse: 

Because of the nature of the situation – a complaining witness of advancing years – there are often situations in which the defendant is falsely accused.  Oftentimes the elder is suffering from dementia or paranoia because of their age and as a result they misperceive situations or are suffering from delusions. Because of the possibility of mistake the cases must be thoroughly investigated – fully determining whether the elder has engaged in such behavior in the past, or has levied false charges against others.

At other times, the district attorney just does not have sufficient evidence to prove the charges.  In cases of physical injury, proper medical testimony from an expert witness can demonstrate that the injuries were not as a result of abuse, but instead were self-inflicted in an accident.

In other situations, you can demonstrate that the act may have occurred, but the Defendant otherwise had a stellar record and abuse is not likely to occur again.  In those cases it is important that your attorney gather evidence in mitigation - letters of recommendation, commendations that you have received at work, evidence that you had a drug or alcohol problem but are now seeking treatment.

 

Actual Case:

Pete, a handyman, began his relationship with Stan, a man of seventy-five (75) years old, by performing odd jobs for pay.  The relationship soon morphed into Pete running a crew to do work on Stan’s large rural property.  Also, Stan started to request that Pete run small errands for Stan such as taking him to the store or taking him to medical appointments.  Pete, feeling sympathy for Stan, complied and ran many errands for free.  Soon Stan stopped paying Pete for the work that Pete and his crew were doing on Stan’s property.  Instead, Stan worked out a barter system with Pete in which Stan would give Pete some of the antique property Stan had collected over the years.   Stan, who was suffering from dementia, soon forgot the barter deals that he had made with Pete and instead accused Pete of stealing the property from him.  After Stan reported him to the police, Pete was charged with elder abuse and theft. After extensive investigation, I was able to determine that Stan had accused many others from stealing from him in the past and had left a trail of people that he had falsely accused or from whom Stan had stolen from.  After presenting the D.A. with interview statements from the witnesses I was able to convince the D.A. to dismiss the charges against Pete.

 

How We can Help:

I have many years of experience and have handled numerous cases of elder abuse. I have gained special skills in defending elder abuse cases and have had a number of successful resolutions.  I have over 40 years in criminal defense practice, and have been a Judicial Officer with the Sacramento Superior Court for sixteen years. As a Judicial Officer I handled mainly criminal matters and gained a thorough knowledge of the system.   As a result of my experience I have developed many contacts in the criminal justice system and can use those contacts to greatly benefit you. Please let me be of assistance in getting you the best possible outcome on your case.  Call me, David Foos, at 916-779-3500, or reach me on the net at This email address is being protected from spambots. You need JavaScript enabled to view it..


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