Cases of elder abuse, also referred to as senior abuse, has been increasing in California during the last decade. Prosecution agencies have established special prosecution units throughout the State to aggressively convict those charged with elder abuse. If you or your loved has been arrested and are facing criminal charges for elder abuse, serious consequences could follow from a conviction. Time in not on your side and since the prosecutor is determined to get you convicted, he or she may be quick to file serious criminal charges and may seize your assets. You should immediately contact an experienced defense attorney to represent you.
At Justin Lo law, our attorneys are highly experienced in this practice area. We understand that there are a variety of reasons that may prompt one to make false accusations of elder abuse. We can build a strong defense strategy to increase your chances of getting the charges dropped. Call us today at 310-284-7385.
Elder abuse is charged under California Penal Code Section 368 and is described as any unjustifiable physical pain or mental suffering inflicted on an elder adult who is 65 years or older. This penal code section also covers individuals who are dependent adults. This are people, who because of their age or a disability, are medicated, frequently confused, or are physically or mentally impaired and have to depend on others to meet their daily needs. Because of this defenselessness, helplessness, and the fact that they are unable to protect themselves, they are given special protection and the crimes are prosecuted and punished more severely. With this crime, many of the victims are abused by family members or caregivers. The crime of elder abuse encompasses both mental and physical abuse and can even include financial manipulation. You can also be charged with PC 368 elder abuse if you taunt or reduce an elderly person as it can result in emotional suffering. Leaving an elderly patient or parent without care and assistance is also PC 368 violation.
- What is Elder Abuse in California?
- Reporting and Prosecuting Elder Abuse Charges
- How Is the Choice of the Prosecuting Agency Made?
- Elder Abuse and Neglect Prosecution Under PC 368
Examples of elder abuse include:
- Intentionally withholding needful medication
- Sexual abuse of a nursing home resident
- Stealing an elderly person’s social security checks
- Fraud or financial manipulation
- Inflicting physical pain or injury
- Emotional or verbal abuse
- Neglecting an elder so as to endanger his/her health or safety
Many agencies that prosecute elder abuse have special units with specially trained prosecutors who oversee the case from the initial filing of charges to trial and sentencing. While these agencies provide their phone numbers to the special units for the purposes of reporting, most of the cases are referred to them by the police. Those who make reports include concerned family members of friends of the victim as well as doctors and other caregivers. It is upon the prosecuting agency to decide whether to file or reject the charges after receiving the report.
Not all elder abuse allegations are true and this often results in false accusations. It could be that a family member who is angry or jealous reports another family member with the intent of controlling the finances of the senior citizen. Sometimes, the alleged victim makes unfounded claims out of confusion. In some cases, a well-meaning family member or friend may report a caregiver without justifying the claims first.
There are different factors that will determine the choice, including:
- The exact type of the alleged abuse- even though emotional, financial, and physical elder abuse are criminal acts, some agencies will only deal with a specific type of abuse.
- Where the alleged abuse took place- some agencies will only handle cases that involve homes or residential treatment facilities.
- The severity of the offense (whether it's a felony or misdemeanor)- some special elder abuse enforcement units will only work on misdemeanor elder abuse cases while others will only prosecute felony allegations.
It is important to know that elder abuse in California can subject an offender to both criminal and civil penalties. Our law firm only deals with criminal elder abuse. If you are being sued for wrongful death or personal injury of a person who is 65 years or older, it is advisable that you contact a California civil attorney as well.
In order for you to be convicted of violating Penal Code 368 California’s senior abuse laws, the prosecutor must prove certain elements of the crime and they include:
- You willfully or with criminal negligence caused or allowed another person to expose an elder to mental suffering or unjustifiable physical pain
- You knew or should have rationally known that the person was 65 years or older
- You acted in a manner that was likely to endanger the health and life of the elder (misdemeanor cases) or produce great bodily or death (felony cases)
PC 368 requires the prosecution to prove that you acted either willfully or with criminal negligence. Willfully means that you engaged in the abusive conduct either purposefully or intentionally. For instance, if you hit or kick an elder adult on purpose, the conduct is considered as willful and can give rise to an elder abuse charge. Anyone can be charged regardless of whether or not they were a care custodian of the elder adult so long as their conduct is willful.
If you are a care custodian of the victim, you have a higher legal duty of care for the elder adult. The prosecution bears the burden of proof in showing that you were criminally negligent. This means that your actions were more than just a mistake or regular negligence. It also implies that you showed a total disregard for the life of the elder adult and your actions created a substantial risk of death or great bodily injury. Criminal negligence also means that you failed to recognize like any reasonable person would that your action would likely result in harm. For instance, you have the duty of giving an elder his or her medication, and constantly failing to do so can may be considered as criminal negligence.
This refers to unnecessary pain or suffering that’s excessive under the circumstances. One can inflict physical pain by punching, kicking, beating, hitting, scratching, grabbing, or throwing down someone aged 65 or older. For instance, Gerald, aged 72, is in a rehabilitation facility after having a stroke. He must request for everything he needs and cannot walk. Jane, his nurse, starts to ignore him and one day, she slaps him across the face after Gerald presses the nurse call button over and over again. In this case, Jane is guilty of elder abuse because she inflicted physical pain with the intention of causing harm.
Mental suffering on the other hand includes any mental or emotional or mental abuse. This may include conduct such as forcing an elderly person to be isolated, or yelling, threatening, harassing or belittling them. For example, Jim lives with his grandfather who is paralyzed. Jim locks him in a dark room in the basement all the time and only enters the room when bringing food to his grandfather. In this case, Jim’s actions are cruel and the conditions he provides are unlivable. He also provides inadequate care and this means he is guilty of PC 368 violation.
Under California domestic violence laws, great bodily harm or injury refers to physical injury that is substantial or significant as opposed to trivial or insignificant harm. In this element, the prosecutor is not required to show that the elder sustained great bodily harm. He or she only has to show that the situation under which the elder adult was placed in was likely to result in significant injury. For example, Jane is married to an abusive husband and also lives with her elderly father. Her husband has told Jane many times that he would harm or even kill the elderly man. The husband goes even to the extent of flashing the elderly man’s medication down the toilet. Jane discovers this and reports to the law enforcement. Her husband is arrested and he may be guilty even though Jane’s father never suffered any injury. It is presumed that getting rid of the drugs was probably likely to result in a substantial injury.
Elder abuse in California is considered a “wobbler’’, which means that it can be charged as either a misdemeanor or felony depending on your criminal history and the facts of your case. In determining this, the prosecution will consider facts such as the age of the victim, the manner in which the alleged abuse occurred, and the effects of the abuse on the alleged victim. Whether the offense is charged as a felony or misdemeanor determines the potential penalties following a conviction under California elder abuse law.
If convicted for a misdemeanor, you are likely to face:
- A fine of up to $6,000 or $10,000 for a repeat offense
- A maximum of 12 months in county jail.
- Misdemeanor (summary probation)
- Mandatory counseling
- Full restitution to the victim
If convicted for a felony, you are likely to face:
- Up to $10,000 in fines
- 2, 3, or 4 years in state prison with an additional 3 to 7 years if the victim suffered great bodily injury or death
- Mandatory counseling
- Full restitution to the victim
Under California Penal Code Section 1192.7(c)(1), a felony conviction can result in a strike on your record if the abuse results in great bodily injury or death.
When charged with elder abuse, you need a criminal defense attorney who will use a smart and effective defense strategy to fight for you. Some of the defenses that an elder abuse defense attorney can use to get the charges dismissed or reduced include:
The prosecutor is required to prove that you acted willfully and negligently. However, your elder abuse attorney can argue that you did not have the intent and the injury to the victim was the result of an accident.
It is not uncommon for false allegations to be made, especially by someone who is the true perpetrator or someone who is acting out of revenge, anger, or jealousy. In some instances, however, family members or other concerned individuals may make false allegations unintentionally if they notice that the elderly person has injuries, and they assume he or she is being abused or neglected. If you are a victim of faulty assumptions and accusation, your attorney will present the rue facts in defending your innocence
You cannot be convicted of elder abuse if the prosecutor cannot prove each and every element of the crime. Your attorney can collect strong evidence that will weaken the prosecutor’s case for instance calling in expert witnesses, receipts for prescription drugs, records from doctor visits, heating and air conditioning bills and basically anything that will show that you have more than adequately cared for the alleged victim.
It is common for primary caregivers, whether at a nursing home or at home, to be falsely accused on a case of mistaken identity. It could be that the senior was abused and other immediately assumed you were responsible just because you are the primary caregiver. For example, if you and the elderly adult were not on good terms and in the same period, the elder shows signs of abuse, the family of the elder may incorrectly assume that you were the abuser, when it was another individual who had access to the elder.
Contact Us Today for Assistance
If you’re charged with elder abuse, your freedom, professional career, family life, and reputation are on the line. As such, these cases require both urgency and sensitivity. At Justin Lo Law, we do not just read the police and prosecution’s interpretation of the facts. We will carry out our own investigation and engage experts to uncover mitigating factors that may suggest a different interpretation of what really happened. We will put all our efforts in developing a solid defense strategy for the most favorable outcome possible. You can contact us anytime 24/7 310-284-7385 for a free initial consultation concerning your case.