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Elder Abuse

What Constitutes Elder Abuse in California?

Senior or elder abuse has risen in the United States and impacts persons from every social, economic, geographic and ethnic stratum. Reports of elder abuse are more than likely to rise along with the older US population, whether or not the allegations lead to conviction or dismissal. Up to 14% of seniors are believed to have suffered from elder abuse, victimization, or dependent adult mistreatment.

Elder Abuse, according to Penal Code 368(a), defines crimes committed against elders— including adults dependent upon others for their care and well-being—and legislates particular legal guidelines for their protection from abuse. While it is sad that California legislature would even need to set laws against elder abuse, the reality is that some dependent elders need legal safeguards from senior abuse in much the same way minor or underage children also need them. Persons who take advantage of susceptible elders with harm commit the criminal conduct known as ‘elder abuse'.

Penal Code on ‘elder abuse' and harm to ‘dependent adults' came about through the California legislature proposing an extensive definition of adults with physical or mental impairment(s) in the early 1980s. That culminated in the formalization of code for prosecution, as first requested by the Santa Ana Police Department in 1983. Thus, California legislature enacted code 368 to prosecute elder abuse as criminal conduct. Seniors less able to protect themselves or to report abuse should, the new legislation stated, receive special legal protection across the state.

Sections (b)(1)(2)(3) offer specifics that detail physical pain and mental agony inflicted on the victim, under such conditions that could lead to either significant bodily injury or even death. Elder abuse code also designates the perpetrator's willfulness in inflicting or allowing the continuation of unjustifiable suffering to a dependent adult. The severity of harm determines the prosecution type and sentencing terms of elder abuse, whether as a felony or a misdemeanor.

In most cases, disadvantaged adults or dependent elders are vulnerable and in need of protection due to some type of disability resulting from disease, medications, treatment, incompetence, physical incapacity, mental health issues, memory loss, cognitive confusion, etc. Those suffering from elder abuse typically find themselves under the primary care of an individual demonstrating neglectful or criminal intent, whether it be a trusted adult child, relative, sole friend, assumed medical professional or facility staff. Persons trapped in the situation often lack the ability or resources within themselves to defend themselves, to grasp the extent of criminal behavior, to recognize and report abuse, or to testify of elder abuses against them that they may recognize.

California Code also states the penalties of elder abuse convictions to incur minimum county jail or prison terms and maximum fines, with additional sentencing terms and greater fines based on: the age of the abused elder (> or < 70 years old), the gravity of bodily injury, and/or the demise of the victim suffering elder abuse (b); elder abuse crimes involving theft, fraud or

embezzlement (c); indications of sexual assault (Code 289, Section 15610.63); assault and battery (245), and sustained fear under threat of harm, crime, or death (422); among other provisions, including elder abuse misdemeanors and felonies committed by care facilities; plus (under Welfare and Institution Code 15630), elder financial fraud and even failure to report elder abuse to authorities.

Commission of misdemeanor elder abuse could result in summary probation, a 1-year county jail sentence (max.), fines to $6,000 or $10,000 (per previous/subsequent offense), victim restitution and therapeutic counseling, either individually or in combination, if convicted. Commission of felony elder abuse could result in formal probation, a 2- to 4-year (max.) state prison sentence, a 3- to 7-year imprisonment extension based on injury or death, ‘strike three' sentencing (prior/subsequent offense), fines to $10,000, victim restitution and therapeutic counseling, either individually or in combination, if convicted.

The punishment for failure to report elder abuse—a misdemeanor—could result in sentences of not more than six months in the county jail, monetary fines (to $1,000), or both imprisonment and fines.

Mandated reporting of elder abuse is required from any person or service provider having executed either their full or intermittent duty of custody care for an elder or another disabled or dependent adult, regardless if that service person receives remuneration or not. Those persons could include any licensed staff of a public, private, or county adult protective facility and its administrators and managers; elder adult care custodians, members of a religious order or organization, health care professionals; or, state agency or a local law enforcement agency.

Mandated reporters within a Skilled Nursing Facility (SNF), who suspect elder physical abuse that entails serious bodily injury, must call in their report within 2 hours of observation to local law enforcement, followed by a written elder abuse report on the incident (Form SOC341) submitted to Local Law Enforcement, Department of Public Health, and Ombudsman. Welfare and Institutions Code 15610.67 defines ‘serious bodily injury' as that which results in extreme physical pain, medical intervention, hospitalization, surgery, physical rehabilitation, protracted loss of faculties (mental, bodily or organ function) including but not limited to impairment, or substantial risk of death. If the abuse has occurred in any place other than a long-term care facility, a state developmental center, or a state mental hospital, then the report should be made to the local law enforcement agency or adult protective services agency.

Relatives, friends or caretakers concerned about possible elder abuse should look for indications of 1-to-10 pain levels, outside or emergency medical interventions, lack of mobility in extremities (toes and fingers), neurological exam progress or regress, depth of injuries (cuts), skin and wound discoloration, possibility of unseen fractures, and the extent of allegations by other nursing or care staff, etc.

For those facing elder abuse charges, the experience and process of legal defense can also be devastating. California Penal Code allows very serious penalties for elder abuse. Prosecution of suspected elder abuse cases tends to be equally aggressive. Defendants, who tend to be family members or trusted caregivers of seniors, typically have a complicated and emotional relationship to the alleged elder abuse victim and high interest in the prosecution of the elder abuse conviction.

Given the rigors of California elder abuse legislation, prosecution charges are sometimes prone to false accusations, lack of substantial evidence, the question of willful intent, or even mistaken identity. Having proper legal counsel experienced in defense and prosecution of varied elder abuse offenses cannot be overemphasized. Criminal defense attorneys should be consulted for either the prosecution of senior abuse charges or the defense against alleged abuse.

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