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The crime of elder or senior abuse as described in California Penal Code section 368 is any type of unjustifiable pain or suffering that is caused to someone aged 65 or older.  With this particular crime many of the victims are abused or neglected by family members or caregivers. The crime of Penal Code section 368 elder abuse encompasses both physical and emotional abuse and can even include the exploiting of an elderly person financially, by manipulating or tricking them into giving you something of value or money.  If you taunt or ridicule an elderly person, you can be charged with the crime of elder abuse, Penal Code section 368.  If you are in charge of caring for an elderly parent and you leave them without care or assistance, you can also be charged with this crime.  Elder abuse is looked upon as an extremely egregious crime because of the very fact that the victim is older and is often very vulnerable.  In many instances, seniors are ill or confused and have to depend on others for their physical and emotional needs. Because of this helplessness, defenselessness and lack of ability to care for and protect themselves, elders receive a special protection in state of California and the crime tends to be prosecuted and punished more severely than when the victim is not a senior.

Many courts have special units with specially trained prosecutors that handle certain elder abuse cases. In order for the prosecution to attain a conviction of elder abuse, he or she must prove the following elements of the crime beyond a reasonable doubt:

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Elements of Elder Abuse

  • A person willfully causes or permits any elder or dependent adult to suffer, or inflicts upon the elder unjustifiable physical pain or mental suffering, or,
  • A person who is responsible for caring for an elder or dependent adult, willfully causes another person to injure or harm the elder, or
  • A person willfully causes or permits the elder or dependent adult to be placed in a situation wherein his or her health is endangered.
  • The person knew that the victim was an elder or dependent adult, and
  • Misdemeanor – The person’s conduct occurred under circumstances likely to hurt or endanger the elder person’s health
  • Felony – The person’s conduct occurred under circumstances likely to produce great bodily harm or death.

WillfullyThis means that the act was done on purpose or intentionally.  But be aware that elder abuse under Penal Code section 368 can also be committed with criminal negligence. This means that your actions were more than just regular negligence or a mistake; it means that you acted in a way that showed a total disregard for the life of the elder person.  Furthermore, in order for the there to be criminal negligence for the crime of elder abuse, the person had to have had a legal duty to care for the elder and acted with criminal negligence to cause the harm or death.  

Unjustifiable Physical Pain – This is any intentional injury inflicted upon someone aged 65 or older such as punching, hitting, kicking, scratching, beating, throwing down, or grabbing, etc.  Example: Robert, aged 69, is in a physical rehabilitation facility in the hospital after having a stroke. He moves very slowly and must request help with almost everything he does. The nurses get tired of dealing with him and start to ignore him. Robert presses the nurse call button over and over again because he needs help and when the nurse finally responds she slaps him across the face. This is elderly abuse because the nurse intentionally inflicted physical force against Robert with the intention of causing harm.

Mental Suffering – This includes any intentional mental or emotional abuse inflicted upon someone aged 65 or older, which may include forcing an elderly person to be isolated or made fun of.  An example depicting this: Sam lives with his grandfather who is paralyzed from the waist down. Sam locks his grandfather in a room in the basement in the dark all day and night only opening the door to give his grandfather his meals because he doesn’t want to take the time necessary to care for him adequately. This is elder abuse because Sam is intentionally inflicting cruel and unusual harm on his grandfather through inadequate care and unlivable conditions.

Endangerment or NeglectThis means not attending to the elderly person’s needs. It could include causing an elder person them to be uncared for, withholding food or medications, or any situation in which the elderly person’s safety is in jeopardy.  Example: Alexander works at a nursing home and cares for several patients on his own. He often ignores the patients calling for him to be cleaned up or fed so that he can hang out and relax in his office alone. This is elder abuse because Alexander is intentionally withholding necessary care from elders in a cruel and willful manner.

Financial Exploitation – As mentioned above, the crime of elder abuse under Penal Code section 368 can also be taking advantage of an elderly person in order to obtain a financial gain.  Sharon takes care of an elderly woman with Alzheimer’s disease. Sharon knows that the woman often forgets things.  Sharon takes her to the bank because the woman needs to withdraw money to pay her bills.  Two hours later Sharon asks the woman if she needs to go to the bank to withdraw money for her bills. She takes the money and assures her that she is making the monthly payments, but instead she pockets the money. Aside from possibly being charged with other crimes, she can be charged with elder abuse because Sharon knowingly took advantage of the woman’s memory problems to get money from her.


Penalties for Elder Abuse

Elder abuse under Penal Code section 368 is considered a wobbler.  If a charge is considered a wobbler, it means that you can be charged with either a misdemeanor or a felony depending upon the facts and circumstances of the case and whether or not you have a prior criminal history.  The prosecution takes all of this into account when preparing the case to be filed.  Elder abuse is a serious offense and is treated very harshly within the justice system.  If convicted of elder abuse as a felony you may be sentenced to two to four years in state prison and an additional three to seven years if the senior dies from the injuries you caused, or if he or she suffers great bodily injury.  There is also a potential for a strike. The judge may also impose a maximum of $10,000 in fines, as well as restitution.  You may also receive formal probation and an order to attend counseling.

If you are convicted of elder abuse as a misdemeanor you can face a maximum of one year in county jail, informal probation, a maximum fine of $6,000 for a first offense. The judge can also order that you pay restitution and attend counseling sessions.   


Defenses for Elder Abuse

It’s important to be aware that many people charged with elder abuse are actually innocent of the alleged crime.  Because of the fact that many seniors are confused and mentally debilitated, there are oftentimes claims of elder abuse when nothing, in fact, occurred.  Family disagreements, mistrustfulness or jealousy also causes unfounded reports of elder abuse to be made. As such, it is crucial that you speak with a California criminal defense lawyer if you are charged with the crime of elder abuse.

At the Criminal Defense Law Office of Leah Legal, your case will be examined and evaluated in its entirety to see if any appropriate defenses apply.  There are several common defenses that Attorney Leah Naparstek can utilize, including but not limited to false allegations, insufficient evidence to prove elder abuse beyond a reasonable doubt, and mistaken identity.

Lack of Willfulness – If the actions that gave rise to the elder abuse charge were accidental and not willful, the charges cannot stand.

False Allegations - The elder abuse laws cover a wide variety of circumstances so it is not uncommon for false allegations to be made, especially. If this is the case, your attorney will present the true facts of the case to the prosecutor and judge and defend your innocence.

Evidence is Insufficient – If the prosecutor cannot prove each and every element of the crime of elder abuse beyond a reasonable doubt, you cannot be convicted. Often your attorney can present evidence that weakens the prosecutor’s case and shows that the elements have not been met. 

Mistaken Identity - Another common occurrence within elder abuse cases are situations where identities are mistaken for the alleged accuser.  Example: Daniel is an elderly man who lives at home alone. He receives daily care through a caretaker agency. The agency sends a caretaker every day to assist Daniel, however the same person is not always sent. One of the caretakers does not treat him well and Daniel informs the agency.  However, he cannot remember the name of the person that specifically took care of him the day he was mistreated. A caretaker who is believed to have been assigned to him that day is charged with Penal Code section 368, however he is not the one responsible for the abuse. These types of situations occur often with elder abuse cases.