Elder Abuse

ELDER ABUSE

If you or a loved one have been accused of elder abuse and are facing criminal charges in the state of California, serious consequences could follow from a conviction. It is imperative that you waste no time in finding an experienced defense attorney to represent you.

At Los Angeles Criminal Attorneys, we have extensive experience in this practice area and understand that many false accusation of elder abuse are made for a variety of reasons. We can build you a solid defense on your behalf and increase your chances of a favorable outcome.

HOW DOES CALIFORNIA DEFINE “ELDER ABUSE?”

In Section 368 of the California Penal Code, "elder abuse" is defined as any form of neglect, exploitation, or mistreatment of someone aged 65 or over.  Examples of elder abuse include:

  • Inflicting physical pain and/or injury.
  • Neglecting an elder so as to endanger his/her health or safety.
  • Intentionally withholding needful medication.
  • Emotional or verbal abuse.
  • Fraud or financial manipulation against a senior citizen.
  • Stealing an elderly person's social security checks.
  • Sexual abuse of a nursing home resident.

Also note that "elder abuse" in California can also apply to any dependent adult, between the ages of 18 and 64.  The rationale and principle behind this provision is that non-senior dependent adults can also be victims of "elder abuse" because they too are particularly vulnerable.

Dependent adults are those who rely on others for their daily needs and/or have physical or mental impairments. Dependent adults, those 65 or older, and children all receive special protections under California law, which is why punishments for crimes committed against them are particularly severe.

Also note that elder abuse is not equivalent to "domestic violence," although the two crimes can overlap. In domestic violence, the relationship between the perpetrator and the victim is definitive, but elder abuse can be committed against a total stranger. Domestic violence is limited to physical harm and threats of inflicting physical harm, but elder abuse is much more wide-ranging in its definition.

WHAT MUST THE PROSECUTOR PROVE

In order to prove you guilty of FELONY elder abuse under Penal Code section 368, the prosecutor must establish beyond a reasonable doubt the following:  1) you inflicted unjustifiable physical pain or mental suffering on an elder, or you allowed another person to do so; 2) you acted willfully or with criminal negligence; 3) you knew or reasonably should have known that the person on whom the harm was inflicted as an elder (i.e., was 65 years or older); 4) you acted under circumstances likely to produce great bodily injury or death.

If you are charged with MISDEMEANOR elder abuse, the prosecutor has to prove all of the above, except that he need not show that your conduct was likely to produce great bodily injury or death. This requirement is replaced with the requirement that your conduct occurred under circumstances that may have endangered the life or health of the elder.

“Willfully”

It is not necessary that you intended the harm itself or that you knew the act in which you had engaged was illegal or constituted elder abuse.  All that the prosecution needs to show is that you acted willingly—that is, you purposefully and intentionally engaged in an act that resulted in pain and suffering to the elder.

“Unjustifiable pain or suffering”

For the pain that you allegedly inflicted to be characterized as “unjustifiable,” it has to be unnecessary or excessive under the specific conditions in which it was inflicted. 

Likely to produce great bodily harm

This element of the code section requires that the harm likely to result be more than trivial or insignificant.  Note, however, that it is not necessary for the prosecutor to prove that the elder actually suffered great bodily harm.  All that the prosecutor has to prove is that the elder was placed in a situation where he or she was likely to suffer great bodily harm.  For example, Jill places her elderly father in the care of her physically abusive husband who has frequently told Jill that he would harm or even kill her father if given the chance.  One day, Jill’s father suffers a concussion as a result of a physical blow inflicted upon him by Jill’s husband.  Jill knowingly placed her father in a situation that she knew was likely to produce great bodily harm upon her father.

Criminal Negligence

You act with criminal negligence if all of the following are true: 1) you conduct was a drastic departure from the way an ordinary person in your situation would have acted; 2) your actions revealed an indifference or disregard to human life; 3) a reasonable person in your situation would have known that acting in the way you did would have resulted in harm to the child. What is NOT criminal negligence is any act that was based on just carelessness or a lapse in judgment.

Note that, unless you had a legal duty to act, you cannot be found guilty of elder abuse by criminal negligence.  For example, Jill and her elderly mother live together.  Jill has been her mother’s caretaker for years.  Jill’s son, Jack, lives elsewhere but visits Jill’s mother frequently.  One day, Jill’s mother becomes severely ill due to malnutrition and dehydration.  It appears that she has been a victim of severe neglect.  Prosecutors charge both Jill and Jack with elder abuse.  Though Jack frequently visited his grandmother, she was not in his regular care and he was not her caretaker.  Therefore, while Jack had a moral duty to report any neglect, he had no legal duty to control Jill’s treatment of his grandmother.  Therefore, Jack cannot be found guilty of elder abuse.

HOW ARE ELDER ABUSE CASES INVESTIGATED

There are many special government agencies devoted to collecting complaints of possible elder abuse and prosecuting cases they conclude have merit.  Most cases come from law enforcement officers, but some also come in on "elder abuse hotlines." A family member, a friend, or the doctor/nurse of the alleged victim are often the sources of allegations.  Each report of elder abuse is scrutinized by prosecuting agencies to determine whether they will drop the case, formally file charges, or continue the investigation.

POSSIBLE PENALTIES FOR ELDER ABUSE

Elder abuse can be charged as either a misdemeanor or a felony, depending on the particulars of the case and your criminal history.

As a misdemeanor, elder abuse is punishable by:

  • Summary probation
  • Up to 12 months in county jail.
  • A fine of up to $6,000, but as high as $10,000 for repeat offenders.
  • Full restitution to all victims.
  • Mandatory counseling.

As a felony, elder abuse is punishable by:

  • Formal probation.
  • Two to four years in state prison, but three to seven years in cases where serious injury/death resulted.
  • A $10,000 fine.
  • Full restitution and counseling.

At Los Angeles Criminal Attorneys, we are fully familiar with the most common defenses to elder abuse and will tailor our defense strategy to the specifics of your case.  Common defenses to elder abuse include:

  • False accusations: Sometimes, a false accusation is made on purpose by the true perpetrator or by someone holding a grudge against the defendant. But false accusations can also be made unintentionally, as when an elderly person suffers from a medical condition that is misconstrued as the result of abuse or neglect. Since doctors, police, and others are required to report all suspected abuse or run the risk of being charged with "failure to report," they are susceptible to drawing faulty conclusions or assumptions.
  • An accident occurred: Sometimes, an elder will suffer physical harm from an accident. This can lead to suspicions of elder abuse, especially if you were alone with the elder when the accident occurred.
  • Mistaken identity: Many times, a primary caregiver, whether at home or at a nursing home, is immediately assumed to be the perpetrator. In many elder abuse cases, however, the culprit is not the primary caregiver but another individual who had access to the elder.
  • Lack of evidence: There may be insufficient evidence to prove beyond reasonable doubt that abuse took place.

HOW CAN WE HELP

As with every case, Negin does not take at face value the police and prosecution’s interpretation of the facts.  She engages in her own fact finding and research to uncover mitigating factors or details that may suggest a different scenario or interpretation than that reached by the government.  Even in cases where a dismissal or acquittal is unlikely, Negin will artfully and relentlessly litigate your case to attain the most favorable outcome possible.

For a free legal consultation with one of our experience defense lawyers, contact us anytime 24/7 at 424-333-0943.

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