Elder Abuse California Penal Code 368 PC


People v. Ramos

Elder Abuse: What it Is and How California Law Deals with It

The term "elder abuse" is often discussed, particularly in the news. Everyone can agree that elder abuse is a horrific crime that can cause lifelong trauma and pain for its victims, even long after the abuse has ended. However, the legal specifics of what elder abuse is, what qualifies as elder abuse, how the courts view and handle these cases, and how victims can protect themselves are often not understood. For those falsely accused of elder abuse, the situation can be even more confusing, and it can be difficult to know where to begin in the legal process. The following information can help to clarify these issues and explain what elder abuse is from a legal standpoint.

What is Elder Abuse?

Elder abuse occurs any time someone 65 years of age or older is neglected, exploited, is subjected to "painful or harmful" mistreatment. This can include everything from physical abuse to financial exploitation. Individuals between the ages of 18 and 64 may also be seen as victims of "elder abuse" if they fall under the legal definition of a "dependent adult". Physical violence, abuse, abandonment, isolation, psychological abuse, neglect, and false imprisonment are all forms of elder abuse. However, it's not uncommon for these crimes to involve the theft, or unlawful acquiring of, a senior citizen's property or money.

Elder abuse covers a wide range of crimes encompassing everything from identity theft to assault. These crimes may be perpetuated against anyone of any age, and are devastating for anyone to experience. However, stricter legal ramifications exist for perpetrators of these crimes if their victims are 65 years of age or older.

In California, Penal Code 368 PC provides the legal definitions and ramifications for those who commit "elder abuse". This legal definition of this form of abuse covers a wide range of crimes and situations in which these crimes may be committed, including but not limited to:

  • the infliction of unjustifiable injury or pain to a senior victim (physical abuse),
  • willfully placing a dependent adult or elder in a situation that endangers his or her health or safety (neglect and endangerment),
  • the intentional manipulation of an elderly individual that is harmful to them,
  • emotional abuse via ridicule, isolation, or other means,
  • or senior fraud or elder financial abuse (including all manner of financial exploitation).

The law also provides for more specific examples of scenarios in which an individual could be charged for elder abuse in the State of California, including:

  • The sexual molestation of a resident in a nursing home by a member of the nursing home's staff,
  • An individual using his elderly aunt's senile state to his advantage by extracting her Social Security checks for his own financial gain, and
  • An adult male who willfully and knowingly withholds necessary medication from his ailing mother.

Other Examples of Elder Abuse

Unfortunately, elder abuse takes many different forms. For instance, if your caregiver or "new friend" persuades you to sign over power of attorney and then proceeds to sell your home from under you and steal the cash, that's a form of elder abuse. Or imagine if you were neglected, hungry, stranded on the floor of your bedroom while your adult daughter drains your bank accounts. Perhaps a repairman sells you on a "necessary" improvement you need to make to your home, and then never does the work upon payment. Maybe you're in a nursing home and forget to take your medication, and a member of the staff smacks you across the face. An "international lottery" calls you and says you just have to pay a small fee and you can get a free vacation, but then they steal your savings and you get nothing from them. These are all forms of elder abuse, and, sadly, they happen every day.

Domestic Violence and Elder Abuse: Are They the Same?

No, domestic violence and elder abuse are different crimes, and there are different laws that govern each. Where elder abuse does not specify certain crimes, domestic violence does. Also, the relationship does not matter within the laws of elder abuse, only the age of the victim. Domestic violence laws define certain kinds of abuse directed only towards spouses, former spouses, "dating or engagement relationships", cohabitants, domestic partners, and those whom the victim has had a child with or is related to by blood. The behavior seen in domestic violence cases is driven by the need for control, and can range from mere threats to physical hitting and unwanted sexual acts. There are no boundaries when it comes to who the victim might be; domestic violence crosses age, educational, income, and ethnic backgrounds. However, if the victim of a domestic violence incident is 65 years of age or older, the law may treat it as a case of elder abuse instead.

How Can I Protect Myself From an Abusive Spouse or Caregiver?

As always, if you are threatened by immediate danger, call 911. When the officer arrives, explain in detail what happened in chronological order. Whether elder abuse or domestic violence, the police personnel can and will contact an on-call judge or judicial officer if an Emergency Protective Order (EPO) is required. An EPO prohibits the person who abused you from coming within a certain distance of you or contacting you, and lasts for five court days, or seven calendar days. To extend your protection beyond the EPO, you may petition for a Temporary Restraining Order (TRO). Your local courthouse has forms that you can fill out to file for a TRO, and as soon as a judge signs it, the order will be given to your abuser and become effective. In certain situations these orders can be made permanent, which, in legal terms, means that it will be in effect for up to five years. You may renew these orders.

Additionally, senior citizens don't have to have suffered physical abuse or obtained injuries in order for a restraining order to be warranted. These orders can also be used to prohibit and protect victims from financial or mental and emotional abuse, as well.

That being said, it's important to remember that these restraining orders don't offer a guarantee that future violence or other types of abuse not specified will be prevented. These orders help protect you legally and are a crucial part of your protection, but it's still important to remain on guard.

Possible Penalties

In California, under Penal Code 368, those who perpetuate elder abuse can be prosecuted as having committed either a misdemeanor or a felony. Both are serious crimes, but being an accused felon often comes with more devastating effects for the defendant. The choice lies with the prosecutor, and he or she will make the decision as to which type of crime has been committed based on factors such as the defendant's criminal history, the facts of the case, and so on.

If the prosecutor decides to charge the perpetrator with a misdemeanor, the defendant can face up to a year in prison and thousands of dollars in fines. Felonies may require the defendant to be imprisoned from two to four years in a state prison, as well as other penalties that may be handed down by the judge.

What Are My Legal Defenses?

Every state handles crimes differently. While some federal laws are in place for various crimes, when it comes to elder abuse there are state-specific laws regarding its definition and how it can be prosecuted. State-specific laws also exist for those accused of committing elder abuse. California Penal Code 368 imposes very heavy penalties for perpetrators of elder abuse, and prosecutors are typically vigilant and passionate in their legal requests on behalf of their clients. Being the victim of elder abuse is a horrific experience, but so is being wrongfully accused of having perpetuated elder abuse against someone you love. Since many defendants in elder abuse cases are caregivers to the elderly, these individuals often lead very busy lives and carry a large amount of stress with them. They often have a complicated and strained emotional relationship with the person they're accused of abusing. Facing elder abuse charges is typically quite devastating to them, especially if they feel the accusations are false.

Fortunately, those accused of elder abuse also have a wealth of legal resources that can help them fight false charges, including but not limited to:

  • claiming that false accusations were made
  • proving insufficient evidence, and
  • claiming mistaken identity.

Elder abuse is a legal arena that is complex, is often flooded with false accusations and wrongful arrests. If you've been accused of elder abuse, it's crucial that you consult with a legal professional who is experienced in handling these specific types of charges and offenses.

How Can We Help?

The Law Offices of Jeff Voll have vast amounts of experience defending clients against California elder abuse crimes. Defense attorney Jeff Voll understands the system, its complexities, and the most effective ways to fight your charges. Don't leave your fate in the hands of those who aren't familiar with this very specific type of law. Call 323-467-6400 today for a free consultation to see how we can help you defend your charges.

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