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By Morton J Grabel Esq
Law office of Morton J. Grabel, Esq. APLC 

Elder abuse in California: know the basic law

 

Last updated 5/15/2019 at 2:20pm

The state of California has passed statues making elder abuse subject to criminal and civil liability. Essentially, the laws forbid not only the lack of care but also the physical or mental abuse of elderly persons.

While the remainder of this article may at first blush appear repetitive, there is a “take-away” that ought to be considered; violations of such provisions can subject the perpetrator to both civil and criminal liability at the same time.

The definitions are contained in the Welfare and Institutions Code and the criminal penalties in the Penal Code.

It is important to note that many of the statutes apply to any dependent adult regardless of age. It is also important to note that failure to provide goods or services by a care custodian, itself, is also elder abuse.

Welfare and Institution Code Definitions

Sections

15610.23. (a) “Dependent adult” means any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict their ability to carry out normal activities or to protect their rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.

(b) “Dependent adult” includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2 and 1250.3 of the Health and Safety Code.

15610.27. ”Elder” means any person residing in this state, 65 years of age or older.

15610.07. “Abuse of an elder or a dependent adult” means either of the following:

(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with resulting physical harm or pain or mental suffering.

(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

15610.57. (a) “Neglect” means either of the following:

(1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing or shelter.

(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse or chronic poor health.

Both the courts and the various governmental agencies have held that abuse may be defined in a broad category of actions:

Physical abuse, which includes but is not limited to assault, battery, unreasonable restraints, etc. For further definition look at California Welfare and Institution Code Section 15610.63.

Psychological abuse, which includes but is not limited to verbal abuse, harassment or being confined to a room for extended periods of time, etc. For further definition look at California Welfare and Institution Code Section 15610.53.

Financial abuse, which includes but is not limited to fraudulent financial investment, extorting money from an elder, or anyone who stands in a position of trust and uses that to their advantage, etc. For further definition look at California Welfare and Institution Code Section 15610.30.

Neglect abuse, which includes but is not limited to when an individual fails to give adequate personal hygiene, fails to prevent malnutrition, fails to provide clothing or shelter, etc. For further definition look at California Welfare and Institution Code Section 15610.57(a).

Isolation abuse, which includes but is not limited to an individual prevents another person from having contact with other by refusing calls, mail or visitors. For further definition look at California Welfare and Institution Code Section 15610.43.

Abandonment, which includes but is not limited to an individual who willfully forsakes an elder. For further definition look at California Welfare and Institution Code Section 15610.05.

As discussed below, the California Penal Code Section 368 makes certain acts against an elder punishable by prison terms if convicted in a criminal court.

It is in the California Penal Code that the “teeth” of the elder abuse laws are found. Put simply, one can go to jail if one abuses an elderly or dependent person in California.

Penal Code 368.

(a) The legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent and therefore less able to protect themselves, to understand or report criminal conduct or to testify in court proceedings on their own behalf.

(b) (1) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an elder or a dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which their person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, by a fine not to exceed $6,000, by both that fine and imprisonment or by imprisonment in the state prison for two, three or four years.

(2) If in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in subdivision (e) of Section 12022.7, the defendant shall receive an additional term in the state prison as follows:

(A) Three years if the victim is under 70 years of age.

(B) Five years if the victim is 70 years of age or older.

(3) If in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:

(A) Five years if the victim is under 70 years of age.

(B) Seven years if the victim is 70 years of age or older.

(c) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that they are an elder or a dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which their person or health may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed $2,000, by imprisonment in a county jail not to exceed one year or by both that fine and imprisonment.

(d) Any person who is not a caretaker who violates any provision of law proscribing theft or embezzlement, with respect to the property of an elder or dependent adult, and who knows or reasonably should know that the victim is an elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three or four years, when the money, labor, or real or personal property taken is of a value exceeding $400; and by a fine not exceeding $1,000, by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the money, labor, or real or personal property taken is of a value not exceeding $400.

(e) Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft or embezzlement, with respect to the property of that elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three or four years when the money, labor or real or personal property taken is of a value exceeding $400, and by a fine not exceeding $1,000, by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the money, labor, or real or personal property taken is of a value not exceeding $400.

(f) Any person who commits the false imprisonment of an elder or dependent adult by the use of violence, menace, fraud or deceit is punishable by imprisonment in the state prison for two, three or four years.

(g) As used in this section, “elder” means any person who is 65 years of age or older.

(h) As used in this section, “dependent adult” means any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict their ability to carry out normal activities or to protect their rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. “Dependent adult” includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2 and 1250.3 of the Health and Safety Code.

(i) As used in this section, “caretaker” means any person who has the care, custody or control of, or who stands in a position of trust with, an elder or a dependent adult.

(j) Nothing in this section shall preclude prosecution under both this section and Section 187 or 12022.7 or any other provision of law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for any single offense, nor shall a person receive an additional term of imprisonment under both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for any single offense.

Let’s review the practical aspects of the law.

The entire thrust of the law is to provide for significant penalties for those who exploit or abuse the elderly, and it is to be noted that those entrusted with their care, the “care givers,” are held to a higher standard of care and suffer greater penalties if they violate it. Whether it is embezzling their money or failing to provide a clean and safe environment, those who neglect or willfully abuse the elderly face stiff penalties.

Keep these following things in mind if elder abuse is suspected.

It should be reported to the various state and county agencies and entities, including Adult Protective Services, local police and call the local county department of health and the district attorney’s office.

If the elder is in immediate danger, the best remedy is to dial 911.

The Office of Morton Grabel, APLC, represents elder abuse and negligence victims in nursing homes, health care facilities and home-care in their homes under civil tort law. This office has recovered millions of dollars for clients in Riverside County.

Please note by reading the information above and herein, no attorney-client relationship has been created. Moreover, the information provided herein is not be relied upon as legal advice for your specific legal needs. Should you have legal questions feel free to contact attorney Morton J. Grabel in Temecula at (951) 695-7700. Grabel, originally from Philadelphia, attended an ABA Law School, has an MBA, a Real Estate Broker’s License, a California Nursing Home Administrator’s License and is a member in good standing of various local chambers of commerce.

 

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