As the youngest of the baby boomers turn 60 this year, issues affecting the elderly are sure to become more prominent.
One of the most pressing concerns for seniors is elder abuse. As many as 5 million older Americans experience abuse every year, according to the National Council on Aging.
Under California law, elder abuse is defined broadly and can result in civil or criminal penalties. If the abuse rises to the level of criminal abuse, the charges can be misdemeanors or felonies.
Today’s column explains why it’s important to understand what constitutes elder abuse, and how and when to report it.
Criminal elder abuse
The California Legislature determined that “adults whose physical or mental disabilities or other limitations restrict their ability to carry out normal activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.”
Accordingly, Penal Code Section 368 encompasses not just physical abuse, but also financial and emotional abuse.
Felony elder abuse
Felony elder abuse includes actions that result or could result in great bodily harm or death to a person age 65 or older, including:
—Willfully causing, inflicting, or permitting an elder to suffer physical pain or mental suffering
—A caretaker willfully causing or permitting injury to the person or health of the elder
—A caretaker willfully causing the elder to be placed in a situation in which their person or health is endangered
These acts are punishable by imprisonment in a county jail not exceeding one year, by a fine not to exceed $6,000, or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.
In addition, if the victim suffers great bodily injury, the defendant will receive additional time in the state prison: (A) three years if the victim is under 70 years of age, and, (B) five years if the victim is 70 years of age or older.
Finally, if the abuse proximately causes the death of the victim, the defendant gets even more time in prison: (A) five years if the victim is under 70 years of age, and (B) seven years if the victim is 70 years of age or older.
Misdemeanor elder abuse
The same behaviors defined as felony elder abuse but not likely to cause great bodily harm or death will be considered misdemeanor elder abuse.
Misdemeanor elder abuse is punishable by a fine of up to $1,000 and/or up to six months in jail. If there’s a second conviction, the jail term lengthens to one year, and the fine can be up to $2,000.
Criminal financial elder abuse
A person who is not a caretaker and who violates the law through theft, embezzlement, forgery, fraud, or identity theft is punishable by fines ranging from $1,000-$10,000 or jail time of various amounts, according to the law.
Civil elder abuse laws
In addition to the criminal laws, California enacted one of the first comprehensive civil elder abuse statutes in the country. The Elder Abuse and Dependent Adult Civil Protection Act mandates certain people — generally healthcare providers, social workers, law enforcement and daycare providers — must report instances of elder abuse. The law also provides civil remedies for the victims.
The felony and misdemeanor criminal laws involve willful behavior of the defendant, but the elder act is broader and covers negligent behavior. It defines abuse and neglect to include not just assault and battery, but unreasonable physical constraint, use of physical or chemical restraints for punishment or beyond that which was ordered by a physician, failure to assist in personal hygiene, failure to provide food, clothing, shelter, or appropriate medical care, failure to protect from health and safety hazards and failure to prevent malnutrition or dehydration.
The law also allows victims of elder abuse or their legal representative to sue the alleged perpetrators and provides for damages. Under certain circumstances, the victim may also sue a nursing home or other facility whose employee perpetrated the elder abuse.
Reporting elder abuse
Mandated reporters include healthcare providers, licensed or unlicensed social service providers for vulnerable adults, paid or unpaid caretakers, care custodians, the clergy and other professionals in a position of trust who suspect elder or dependent adult abuse or neglect, including self-neglect.
California law requires these mandated reporters immediately report cases of suspected abuse or neglect of an elder or dependent adult to Adult Protective Services.
But any individual who is the victim of elder abuse or who believes someone else is the victim of elder abuse can report to APS by calling 1-833-401-0832. When prompted, enter your 5-digit ZIP code to be connected to the APS in your county, seven days a week, 24 hours a day.
If an elder or dependent adult is in immediate physical danger, call 911 immediately.
Teresa J. Rhyne is an attorney practicing in estate planning and trust administration in Riverside and Paso Robles, CA. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I)” and “Poppy in The Wild.” You can reach her at Teresa@trlawgroup.net
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