Elder abuse comes in many forms and can be perpetrated by family members, friends, caretakers or nursing home facilities. It is usually physical but emotional and financial abuse or exploitation is just as harmful if not more devastating. The main feature of this crime is that the victim must be at least 65 years of age. Because senior citizens are particularly vulnerable to harmful or offensive acts by others, and are helpless or unaware of how to report criminal conduct, Penal Code 368 was promulgated to offer special protection and severe penalties for those who commit such crimes against the elderly.

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Elder abuse is a “wobbler” offense so that the DA has the discretion to charge you with a misdemeanor or felony.

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Elder abuse includes:

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• Physical abuse including any kind of physical injuries or sexual abuse, neglect or abandonment

• Emotional abuse such as bullying, making threats of physical harm or comments that are belittling, degrading, racist or otherwise offensive

• Financial abuse or theft or fraud in stealing or gaining access to assets

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Every criminal offense has certain elements, each one of which requires the prosecution or DA to prove beyond a reasonable doubt. These elements are different depending on whether your actions constituted a misdemeanor or a felony.

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For felony elder abuse, the elements are:

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1. You intentionally or willfully, or with criminal negligence, personally subjected the senior to unjustifiable physical pain or mental suffering or permitted another person to do so

2. You had a legal duty to care for the elder

3. You exhibited conduct that was likely to produce great bodily harm or death

4. You knew, or reasonably should have known, that the victim was 65 years of age or older

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For misdemeanor elder abuse, the DA needs to prove:

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1. You intentionally or willfully, or with criminal negligence, personally subjected the senior to unjustifiable physical pain or mental suffering or permitted another person to do so

2. You knew, or reasonably should have known, that the victim was 65 years of age or older

3. You had a legal duty or obligation to take care of the elderly victim

4. You exhibited conduct that may have endangered the life or health of the senior or elder

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Criminal Negligence

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Criminal negligence is more than ordinary negligence where a person fails to exercise due care or that care or conduct that a reasonably cautious person would have exercised under similar conditions. Criminal negligence is behavior that is callous or so unreasonable as to reflect a disregard for human life.

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An example is neglecting someone you are caring for and who is dependent on you for their basic needs by deliberately not giving them food, medications or treating their sores or open wounds so that they become seriously dehydrated or contract a life threatening disease or infection.

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Unjustifiable Physical Pain or Mental Suffering

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This refers to pain or mental anguish or suffering that is unnecessarily inflicted or which is extreme.

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Likely to Cause Great Bodily Harm—Felony Elder Abuse

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This element is satisfied if the elder is placed in a condition or circumstance that is likely to cause or does cause great bodily harm. It is not necessary for the elder to have suffered physical pain for the defendant to be found guilty of felony elder abuse. If you willfully withhold food and water or necessary medication, you have committed an act that likely would have led to great bodily harm.

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Penalties 

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Penalties and sentencing for elder abuse largely depends on the facts and circumstances of each case or if the conduct that caused the suffering was especially egregious or callous as well a consideration of your criminal history.

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Misdemeanor Elder Abuse

A typical sentence may include the following or some portion of these penalties:

• Up to one year in county jail

• Or summary probation along with some jail time

• A fine up to $1000

• Participation in a court-approved class or program or counseling

• Restitution to the victim for medical or other expenses incurred as a result of the harm

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Felony Elder Abuse

• State prison time of 2 to 4 years

• Additional 3 to 7 years if the victim did suffer great bodily harm

• Fine up to $10,000

• Counseling or mandatory attendance at court-approved program

• Formal probation

• Strike on your record pursuant to PC 667 if great bodily injury occurred

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There are legal defenses to elder abuse that a defense attorney can utilize in your defense, including challenging each element of the crime. A common defense in these cases is that of being falsely accused:

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False Accusations

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Health care providers, law enforcement and social workers are required by law to report suspected instances of child and elder abuse or face misdemeanor charges if they fail to do so. Often, these individuals make reports if they observe any signs of injury, deep depression, cryptic comments made by the senior or if they feel the senior has been neglected or mistreated in some fashion. It is not uncommon for these suspicions to be unfounded or unsupported. Financial exploitation or wrongdoing might be alleged if the elderly person gives a caretaker money or buys gifts for them. While the caretaker should consider the ethics or the appearance of impropriety in accepting money or gifts, it is not a crime unless there is evidence of coercion, threats or physical violence that forced the senior to give these gifts or largesse.

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Lack of Willful Intent

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You must have exhibited willfulness or an intent to cause harm. If the injury was an accident, there is no violation of PC 368. Sometimes a nursing staff employee had looked away for a moment and the senior resident had fallen or broken a hip or limb. Without more, the employee would likely not be charged.

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Lack of Evidence

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The DA must prove there was either an injury or that you placed the elderly person in a dangerous position or condition that was likely to lead to great bodily harm. Merely because an injury occurred and you were the caretaker is not enough to convict you. If the victim has dementia or some other mental illness and is unable to corroborate the DA’s accusations or lacks credibility, then there must be proof that the person was poisoned, not given the required medication for long periods of time, was malnourished or dehydrated or had open wounds or sores too obvious to have ignored. Otherwise, the ravages of age, illness or an accident were just as likely to have caused the condition.

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Evidence that you did care for the person would counter any circumstantial evidence. This might include records that you took the person to medical visits, recreational activities, for walks, and can produce receipts for meals and medications and any other evidence of adequate care.