Elder Abuse California: What the Law Says?

Recognizing the growing number of reported cases of elder abuse California has enacted a number of legislation that make such abuse punishable by both criminal and civil penalties. Essentially, the rules prohibit both a lack of care and physical or mental maltreatment of elderly dependents. Violations of such requirements may result in civil and, in extreme cases, criminal responsibility. The definitions are found in the WIC, whereas the criminal punishments are found in the Penal Code.

It’s worth noting that many of the laws apply to all dependent adults, regardless of age. Also, note that a care custodian’s failure to give products or services may be deemed elder abuse. Let’s learn more about the idea of elder abuse in California and what the law says about it.

Definitions

 (a) Any person who is 18 to 64 years old and lives in this state and has mental or physical limitations that make it hard for them to do normal things or protect their own rights is called a “dependent adult.” People who have physical or mental disabilities, as well as those who have gotten older, can also be “dependent adults.”

(b) “Dependent adult” refers to any individual between the ages of eighteen and sixty-four who is hospitalized as a patient to a 24-hour health institution, as specified in the Health and Safety Code sections.

(c) “Elder” refers to any individual sixty-five years of age or older who resides in this state.

(d) Elder abuse indicate either of the following:

  • Bodily abuse, neglect, financial abuse, abandonment, seclusion, abduction, or any other treatment that causes physical hurt, agony, or mental anguish

  • The denial of commodities or services by a care custodian that are required to avert bodily injury or emotional distress.

(e) “Neglect” indicates:

  • The negligent failure of an individual in charge of an older or a dependent adult to exert the level of care that a sane individual in a similar situation would exercise.

(f) Neglect encompasses, but is not limited to, the following:

  1. Failure to help with personal hygiene or the supply of food, clothes, or shelter.
  2. Failing to provide medical treatment for physical and mental health requirements. No one will be considered neglected or mistreated just because he or she freely depends on spiritual care via prayer alone in place of medication.
  3. Failure to defend against threats to one’s health and safety.
  4. Failure to protect against dehydration and malnutrition.
  5. The inability of an older or dependent adult to meet the requirements described in paragraphs (1) to (4) for himself or herself due to low cognitive functioning, mental disability, drug addiction, or persistent bad health.

Classification of Abuse

Classification of Abuse
source:nursinghomeabusecenter.com

Both the courts and numerous government organizations have determined that abuse may be characterized as a wide range of actions:

  • Physical abuse encompasses, but is not restrained to, assault, battering, arbitrary constraints, and so on.
  • Psychological abuse encompasses, but is not restrained to, verbal abuse, harassment, and being limited to a room for lengthy periods of time, among other things.
  • Financial Abuse covers, but is not limited to, financial fraud investments, extorting money from an older person above 65, or anybody who stands in a relation of trust and utilizes that to their benefit, and so on.
  • Neglect Abuse encompasses, but is not confined to, when a person fails to offer basic personal cleanliness, fails to prevent starvation, fails to provide clothes or shelter, and so on.
  • Isolation Abuse occurs when a person restricts someone (or himself or herself) from having touch with others by denying calls, letters, or visits.
  • Abandonment encompasses, but is not limited to, a person who willingly abandons an older.

As explained further below, some offenses against an older person are punishable by jail terms if the person is convicted in a criminal court under California Penal Code Section 368.

The “teeth” of elder abuse statutes may be found in the California Penal Code. Simply said, if you mistreat an old or dependent person in California, you may go to prison.

Penal Code 368

Penal Code 368
source;elderlaecenterofwisconsin.com

(a) Legislature says that crimes against the elderly and the disabled should be given extra attention and protection, just like crimes against minor children. This is because older and disabled people may be confused, incompetent, physically or mentally impaired, on different medications, and they may not be able to protect themselves, understand or report crimes, or testify in court on their behalf.

(b)

(1) A person who, under conditions that are probable to result in great injuries or death, willfully induces or enables any elder or dependent adult to endure, or inflicts upon them indefensible mental suffering or physical pain, or who, while in the custody or care of any dependent adult or elder, willfully permits or causes the individual or health of the dependent adult or elder to be injured, or who willfully allows a dependent adult or an elder to face a situation in which his/her health or life gets endangered is certainly punishable through imprisonment sentence in a county jail for not more than 1 year, or by a fine of not more than $6,000, or by both the imprisonment and fine, or by imprisonment in state prison for 2, 3, or 4 years, depending on the severity of the situation.

(2) If the victim suffers significant physical harm while the defendant is committing an act mentioned in paragraph (1), the defendant will be sentenced to an extra time in state prison as follows:

  • If the victim is under the age of 70, the sentence is 3 yrs.
  • If the victim is 70 or older, the sentence is 5 yrs.

(3) If, while committing an act listed in paragraph (1), the defendant imately causes the victim’s death, the offender shall be sentenced to an extra time in state prison as follows:

  • If the victim is under the age of 70, the sentence is 5 yrs.
  • If the victim happens to be 70 or older, the sentence is 7 yrs.

(c) Any individual who, under conditions or circumstances other than those probable to result in death or severe bodily harm, willfully permits or causes any dependent adult or elder to endure, or inflicts unjustifiable mental suffering or physical pain on the elder or dependent adult, or having custody or care of any dependent adult or elder, willfully permits or causes the elder or dependent adult’s person or health to be injured or harmed A subsequent or second violation of the said subdivision is penalized by a fine of no more than two thousand dollars ($2,000), imprisonment in a county jail for no more than one year, or both that amount and imprisonment.

(d) Any individual who’s not a caretaker and violates any provision of law prohibiting embezzlement or theft with regards to the property of a dependent adult or an elder, and who is aware or reasonably should be knowing that the victim is a dependent adult or an elder, is to be punished by imprisonment in county jail for not more than 1 year, or in state prison for 2, 3, or 4 years, if the personal or real property, labor, or money taken is worth more than $400.

(f) Anyone who commits false detention of a dependent adult or an older person by the use of violence, threat, fraud, or deception faces two, three, or four years in state prison.

(g) “Elder” refers to anybody above sixty-five years of age or above.

(h) “Dependent adult” refers to any person between the ages of eighteen and sixty-four who has mental or physical limitations that limit his or her ability to perform normal activities or protect his/ her rights, including, but not restrained to, people with physical or developmental disabilities or people whose mental and physical abilities have deteriorated due to age. Any individual between the ages of eighteen and sixty-four who is admitted as a patient to a 24-hour health institution.

(i) The term “caretaker” as used in this section refers to anybody who has custody, care, or control of or is in a state of trust with, a dependent adult or an elder.

(j) Nothing in this section precludes prosecution or any other law provision. However, a person must not be sentenced to extra time in prison for the same crime, nor may a person be sentenced to additional time in prison.

Practical Aspects of Elder Abuse Law

Practical Aspects of Elder Abuse Law
source:bighearts.com

The sheer purpose of the law is to impose severe penalties on those who abuse or exploit the elderly, and it should be noted that those who are entrusted for their care,”caregivers”, are meant for a higher standard of custody and care, and are subject to greater penalties if they fail to adhere to this standard of care. The elderly are subject to severe fines if they are neglected or abused, whether via financial exploitation or failure to maintain a clean and safe environment.

The difficulty, of course, is that the elder people are often blocked off from access to assistance and are frequently reliant on the same persons who are using or abusing their situation. The elderly person is also often aware that she or he is being ignored or mistreated but does not know who to turn to for assistance in this situation. Because of difficulties that might have nothing in connection with the old person, a caregiver who was formerly generous in attention becomes more irritable or aggressive, and the victim discovers that she or he has slowly but steadily placed himself or herself in jeopardy.

The false accusation of excellent care providers, as well as the misinterpretation of their treatment, is an issue that is equally hazardous. Once, this writer faced a girl whose mother had stated that she had been subjected to regular physical abuse and had shown the writer new injuries. A tearful daughter said that her mother would scream uncontrollably and smash her arms against the wall, but no one used to believe her that this was the fact. But even as we were talking, I heard pounding in the other room, and when we went in, we discovered that the mother was doing just that.

As is the case with child molestation, the concerns are so emotionally charged, and the public censure is so strong, that conducting a thorough and impartial inquiry is almost difficult. Moreover, when it is your father or mother who you accuse of being mistreated by a caregiver, whether or not it is a sister or brother, the emotions may obscure all reasoning and result in allegations that can ruin a family for all time.

Nonetheless, the threat is real, and the unfortunate reality is that as the population grows older, we will undoubtedly discover greater and greater amounts of elder abuse. As a result, all of us, particularly sons and daughters whose work timings require them to delegate the care of elderly parents to others, should watch out for signs of elder abuse in our own families.

Keep the following points in mind:

  • Each sort of elder abuse has its own set of indications. If you suspect elder abuse, you must report it to the appropriate authority.
  • If the senior is in urgent danger, the best plan of action is to call 911.
  • If the abuse occurs in a public area, you should contact your local Adult Protective Services.
  • In 1999, legislation was passed to prevent and combat elder abuse by establishing a 24-hour hotline number to receive the reports of abuse, responding to all reports of abuse, providing emergency services, coordinating community resources, case management services to the victims, and intervening in cycle abuse. According to SB 2199, each county in California is obligated to offer such services. Adult Protective Services may be reached at (800) 814 0009 or (415) 557 5230. Telephone information or the yellow pages will supply you with the phone number for every other county in California.

How to Recognize Elder Abuse

How to Recognize Elder Abuse
source:womenshealth.gov

1. Possible Neglect Indicators and Physical Abuse

The following are hints for detecting neglect or physical elder abuse. This is not meant to be an all-inclusive list.

  • Bedsores, malnutrition, and/or dehydration Unknown cause of weight reduction.
  • Unseen but assumed bodily injury: Reactions to touch that are painful.
  • Bruises, skin rips, and fractured bones or teeth are all possibilities.

2. Indicators of Financial Abuse

  • Unusual banking or financial transactions
  • Accounts had money missing.
  • Transactions made with an inoperable ATM or credit card
  • Changes to estate planning papers or property deeds that were not anticipated
  • Misplaced possessions

3. Behavioral Indicators

  • Non-responsive or implausible excuses
  • Fearful or hesitant to talk
  • Depressed or withdrawn
  • Defensiveness
  • Confusion or disorientation
  • Anger
  • Agitation

4. Abuse indicator for Caregiver or Family Member

  • The senior is not permitted to speak for himself/herself.
  • The caregiver’s disinterest or hostility toward the senior.
  • Social isolation or excessive limits on the elder’s activities
  • Inconsistent explanations for situations by family members or caretakers.

Gambling or drug addiction issues among family members or caregivers

Mandated Reporting

Mandated Reporting
source:columbian.com

Who Are Mandated, Reporters?

Certain people are required by law to produce reports. There is a long list of mandatory reporters. Any licensed staff, supervisors, and Administrators of a private or public facility that gives care or services for elders; any dependent adult or elder care custodian, a health practitioner, a clergy member, or an employee of a county APS agency or a law enforcement agency; and any person who has taken intermittent or full responsibility for the custody or care of a dependent adult, whether or not compensated. Financial institution officers and staff are required to report financial abuse of elders.

What is to be Reported?

Suspected or actual physical abuse, isolation, financial abuse, abandonment, or neglect that is witnessed, obvious, or described must be reported by mandated reporters.

Required Report Forms: The mandated report must complete and sign Form SOC 341.

When Mandated Reporters Should Make Their Reports?

These reports must be made as quickly as possible by phone, followed by an internet report or written report using the confidential Internet reporting facility within 2 working days. If the claimed or suspected abuse is physical and happened in a long-term care institution, a complaint must be filed to both the ombudsman and police enforcement. When there is significant physical harm, the mandated reporter must call law enforcement within 2 hours and file a report with the ombudsman within 24 hours. Within 24 hours, reports of non-serious physical harm are sent to law enforcement and ombudsmen. The sole exception to dual reporting is when a person has committed maltreatment but no significant physical harm has occurred. In certain cases, the reporter must report to either ombudsman or the law enforcement.

Failure to Report

Failure to report or delaying a report of neglect, financial abuse, isolation, abduction, abandonment, physical abuse of an elder is a felony punishable by 6 months in county prison and a $1,000 fine.

Any required reporter who wilfully fails to report neglect, financial abuse, isolation, abandonment, physical abuse of an elder that ends in death or grave bodily harm may be penalized by up to one year in county prison and a $5,000 fine. Failure of an employee or officer of a financial organization to report financial abuse is punishable by a $1000 punishment and a $5000 fine if the failure is willful.

What if you aren’t a Mandated Reporter?

There isn’t any justification for elder abuse! Anyone may and should report elder abuse. Report elder abuse to the authorities if you know or believe it is happening. CALL 911 IMMEDIATELY IF YOU ARE IN IMMEDIATE DANGER!

Criminal Negligence

Criminal Negligence
source:dowsleyassociates.com

Understanding Criminal Negligence

Criminal negligence is a lot more than ordinary carelessness when a person fails to take reasonable care or action that a reasonably prudent person would have done under comparable circumstances. Criminal negligence is defined as action that is cruel or illogical in such a way that it shows a disrespect for human life.

Neglecting people you are caring for and those who are reliant on you for basic necessities, such as not providing them food, medicines, or cleaning their sores or open wounds, may result in their being severely dehydrated or contracting a life-threatening sickness or infection.

What is Unjustifiable Mental Suffering or Physical Pain?

This refers to needlessly inflicted or excessive pain, mental distress, or suffering.

What Causes Great Bodily Harm?

This need is met if the elder is put in a situation or situation that is likely to or does cause serious physical injury. The older does not have to have endured bodily pain for the defendants to be pronounced as guilty of felony elder abuse. 5. If you purposely withhold food, drink, or medicine, you have done an act that may have resulted in serious physical injury.

Elder Abuse: Legal Defenses

Elder Abuse Legal Defenses
source:jsafirm.com

Under criminal code 368, there are legal arguments to claims of elder abuse that a defense counsel may employ in your case, including disputing each aspect of the offense. Being wrongfully accused is a frequent defense in several cases.

False Accusations

Police require health care practitioners, law enforcement, and social workers to report suspected cases of elder and child abuse or risk misdemeanor penalties if they do not. These people often file complaints if they see any evidence of damage, profound despair, cryptic words made by the elder, or if they believe the senior has been ignored or abused in any way.

These concerns are not uncommon to be baseless or unjustified. If an old person contributes money or buys presents for a caregiver, financial exploitation or crime may be accused. While the caregiver should consider the ethics or appearance of impropriety while collecting money or presents, it is won’t be a crime unless there is proof of coercion, threats, or physical abuse that compelled the senior to offer this largesse or gifts.

Lack of Willful Intent

You need to have shown willfulness or a purpose to inflict damage. If the harm was caused by an accident, PC 368 is not violated. Sometimes a nursing staff member would glance away for a second, and the elderly citizen would fall or break a limb or hip. Without more, the person would most likely not be charged.

When there is a Lack of Evidence

The dependent adult must establish that there was either a quest or that you put the old person in a risky position or situation that was likely to result in serious bodily damage. Simply because an accident happened and you were the caregiver is not enough to condemn you.

What if the Victim has Dementia or can’t recall events properly?

If the elder person (victim) has mental illness or dementia and he fails to corroborate the DA’s lack of credibility and accusations, there must be a proof that the person got hurt, was not given the necessary medication for longer periods of time, was dehydrated or malnourished, or had open wounds or sores that were too obvious to have been ignored.

Any circumstantial evidence would be countered by proof that you did care about the individual. This might include documentation indicating you brought the individual to medical appointments, leisure activities, and walks, as well as receipts for food and prescriptions and any other proof of proper care.

Record Expungement

Record Expungement
source:filtermag.org

California law provides for the erasure of certain criminal records, which removes the limits and hurdles that ex-felons experience while looking for and getting employment, housing, and public benefits.

However, an expungement does not restore all civil rights.

Individuals convicted of a crime who spent time in state prison are ineligible for expungement under PC 1203.4. There are various situations in which a conviction does not result in you spending time in the prison of the state, such as being in probation or county jail time, home monitoring or community service.

Some offenses allow for the whole sentence to be spent in county jail rather than state prison.

If you were convicted of elder abuse, it was either a crime or a misdemeanor.

What happens when a conviction is a misdemeanor?

If you have been convicted of a misdemeanor but were not sentenced to state jail, your conviction may be expunged.

What If the Conviction Was A Felony?

Had you been convicted of a felony for elder abuse but did not serve any state jail time, you may still be eligible.

There are certain limitations to what a criminal record expungement may do.

Expungement Erase & Prior Convictions?

It does not totally remove your conviction, so if you re-offend, it may be used as a previous crime to increase your sentence for the current felony charge.

If a member of the public, including private businesses and individuals, does a criminal background check, they will not be able to access your record of conviction.

Under the following conditions, you must reveal your conviction as well as that it was expunged:

  • Apply for a pro license or a job in the public sector
  • If you want to run for office,
  • When submitting an application to the State Lottery Commission for a license or contract

Qualifications For Expungement

Qualifications For Expungement
source:recorderaser.net

If you were convicted under Penal Code 368, you may still be eligible for expungement if you fulfill the following criteria:

  • You have been sentenced to formal probation or spent no time in state jail.
  • Your sentence was served in a county jail.
  • All of the terms of your sentence and your probation have been met.
  • There have been no new felony crimes committed.
  • There are no criminal charges pending.
  • There were no probation breaches.

Probation Violation

If you violated your probation for a small infraction, this does not imply you are no longer eligible. The court will consider your criminal history and the necessity for the expungement to assist you in finding acceptable work and supporting yourself and your family.

  • Allow your probation to be terminated early.
  • If the crime was a wobbler, your felony conviction should be reduced to a misdemeanor

Should you try to get a reduction in charges?

Reducing the charge to a misdemeanor restores your ability to possess a handgun and makes it simpler to get a pro or public license. You do not have to declare the expunged conviction if it had been a misdemeanor and not a felony in other situations, such as when running for public office or applying for public employment.

Also, even if you are required to wait after completing the whole term of your probation and the conviction isn’t reduced to a misdemeanor, you may still submit the Petition for Dismissal.

Stop Senior Abuse

You are not alone if you had trusted a nursing home, supported living institution, or residential care facility to facilitate care for family members or loved ones and now suspect mistreatment.

Unfortunately, elder abuse is all too widespread.

Abuse may manifest itself in a variety of ways, ranging from neglect to physical violence. Elders with dementia or impairments may be more vulnerable to abuse. Nursing home abuse, in whatever form it takes, is criminal and must be prevented. According to a poll on Elder Abuse, seniors who have been mistreated have a 300 percent greater risk of mortality than those who have not been abused.

Abuse incidents are seldom reported to the appropriate authorities. Residents may be hesitant to report for fear of revenge or shame, and the victim’s relatives and friends may be ignorant of the usual warning signals.

Conclusion

Each aged person is a treasure trove of experience and history, a testament to what has come before, and a guidepost for where each of us must go. It was once said that a society is ultimately assessed by how it treats its dependents, and this is especially true when it comes to the elderly.

If you witness any elder abuse California case, please inform the authorities immediately.

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