New California Laws Elder Financial Abuse Who Can Bring Suit

Updated September 6, 2021

Penal Code 368 - Elder Abuse - A erstwhile DA explains

Penal Lawmaking 368 PC defines the California crime of elderberry corruption as inflicting physical or emotional corruption,fail, orfinancial exploitation upon a victim who is 65 years of age or older. The criminal offense tin be prosecuted as a misdemeanor or afelony, and is punishable by up to 4 years of jail or prison.

We will quote the total text of the code section and then provide a detailed analysis below:

368. (a) The Legislature finds and declares that elders, adults whose physical or mental disabilities or other limitations restrict their ability to acquit out normal activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.

(b) (one) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions probable to produce groovy actual harm or expiry, willfully causes or permits any elder or dependent developed to suffer, or inflicts thereon unjustifiable concrete pain or mental suffering, or having the care or custody of any elder or dependent developed, willfully causes or permits the person or wellness of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent developed to be placed in a situation in which his or her person or wellness is endangered, is punishable by imprisonment in a county jail non exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for 2, three, or four years.

(2) If, in the committee of an offense described in paragraph (ane), the victim suffers great bodily injury, as defined in Section 12022.7, the accused shall receive an additional term in the state prison as follows:

(A) Iii years if the victim is under lxx years of age.

(B) Five years if the victim is 70 years of age or older.

(3) If, in the commission of an offense described in paragraph (1), the accused proximately causes the decease of the victim, the accused shall receive an additional term in the state prison house as follows:

(A) Five years if the victim is under 70 years of age.

(B) 7 years if the victim is lxx years of historic period or older.

(c) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or weather other than those likely to produce great bodily harm or decease, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or wellness of the elderberry or dependent adult to be injured or willfully causes or permits the elderberry or dependent developed to be placed in a situation in which his or her person or wellness may be endangered, is guilty of a misdemeanor. A 2d or subsequent violation of this subdivision is punishable by a fine not to exceed two 1000 dollars ($two,000), or past imprisonment in a county jail non to exceed 1 year, or by both that fine and imprisonment.

(d) A person who is not a flagman who violates whatsoever provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elderberry or a dependent adult, and who knows or reasonably should know that the victim is an elderberry or a dependent adult, is punishable as follows:

(1) Past a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding ane yr, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($x,000), or by imprisonment pursuant to subdivision (h) of Department 1170 for 2, 3, or four years, or past both that fine and imprisonment, when the moneys, labor, goods, services, or existent or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).

(2) By a fine non exceeding one k dollars ($i,000), by imprisonment in a canton jail non exceeding i year, or by both that fine and imprisonment, when the moneys, labor, appurtenances, services, or existent or personal belongings taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).

(e) A caretaker of an elderberry or a dependent adult who violates whatever provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying data of that elderberry or dependent adult, is punishable as follows:

(1) By a fine not exceeding two g five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding 1 year, or by both that fine and imprisonment, or past a fine non exceeding ten one thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or iv years, or past both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal belongings taken or obtained is of a value exceeding nine hundred fifty dollars ($950).

(two) By a fine not exceeding one 1000 dollars ($ane,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or existent or personal holding taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).

(f) A person who commits the imitation imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or cant is punishable past imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(g) Equally used in this section, "elder" means a person who is 65 years of historic period or older.

(h) As used in this section, "dependent adult" means a person, regardless of whether the person lives independently, who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, simply not limited to, persons who accept physical or developmental disabilities or whose physical or mental abilities have diminished because of age. "Dependent adult" includes a person between the ages of 18 and 64 who is admitted equally an inpatient to a 24-hour wellness facility, equally defined in Sections 1250, 1250.two, and 1250.iii of the Health and Safety Code.

(i) As used in this department, "caretaker" ways a person who has the care, custody, or control of, or who stands in a position of trust with, an elderberry or a dependent adult.

(j) Nothing in this section shall preclude prosecution under both this section and Department 187 or 12022.7 or any other provision of law. However, a person shall non receive an additional term of imprisonment under both paragraphs (two) and (3) of subdivision (b) for a single offense, nor shall a person receive an boosted term of imprisonment nether both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for a single offense.

(k) In any case in which a person is convicted of violating these provisions, the courtroom may require him or her to receive appropriate counseling every bit a condition of probation. A defendant ordered to be placed in a counseling plan shall be responsible for paying the expense of his or her participation in the counseling program as determined by the court. The court shall take into consideration the ability of the accused to pay, and no defendant shall be denied probation because of his or her inability to pay.

(50) Upon confidence for a violation of subdivision (b), (c), (d), (e), or (f), the sentencing courtroom shall besides consider issuing an lodge restraining the defendant from any contact with the victim, which may be valid for upwards to 10 years, as determined by the courtroom. It is the intent of the Legislature that the length of whatsoever restraining order exist based upon the seriousness of the facts earlier the courtroom, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the courtroom whether the defendant is sentenced to land prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.

Examples of elder corruption crimes

not feeding an lxxx-year-quondam parent who cannot care for himself.
a caretaker ridiculing an elder patient for being wheelchair-spring.
a person using fraud to convince a 90-twelvemonth-erstwhile neighbor to make him the sole beneficiary in the elder'southward will.

Defenses

A defendant can fight an elder abuse charge with a legal defense. Common defenses include:

no willful act,
no abuse, and/or
falsely accused.

Penalties

A violation of this statute is charged as either;

amisdemeanor, or
afelony

depending on the facts of the case.

Amisdemeanor conviction is punishable by imprisonment in canton jail for up to one twelvemonth.

Afelony conviction is punishable by custody in state prison house for up to four years.

In lieu of jail time, a guess can accolade either:

misdemeanor (or summary) probation, or
felony (or formal) probation.

Our California criminal defense force attorneys will answer the post-obit 10 fundamental questions in this article:

elderly man with head bowed in apparent distress - elder abuse is a crime in California under Penal Code 368 PC

Penal Code 368 PC is the California statute that makes it a crime for a person to abuse anyone 65 years of historic period or older.

ane. How does California law ascertain elder abuse?

A prosecutor has to show different things under 368 PC:

depending on whether he wants to captive a accused of,
misdemeanor elder abuse orfelony abuse.

Annotation also that questions often arise under this statute on the meaning of:

"abuse," and
"willfully" and "criminal negligence."

1.1. Misdemeanor elder abuse

A prosecutor has to prove the following to convict a person ofmisdemeanor elder abuse:

the accusedwillfully or with criminal negligence subjected an elderly person tounjustifiable physical pain or mental suffering,
the deport could have endangered thelife or wellness of the elderly person, and
the accusedknew or should take known that the victim was 65 years sometime or older.¹

"Unjustifiable physical pain or mental suffering" means:

pain or suffering that,
isnot necessary or that isexcessivenether the circumstances.^two

i.2. Felony elder corruption

A prosecutor must prove the post-obit to convict a person offelony elder abuse:

the defendantwillfully or with criminal negligence subjected an elderly person tounjustifiable physical pain or mental suffering,
the deport was likely to produce great bodily injury or death, and
the accusedknew or should have known the victim was 65 years sometime or older.³

"Unjustifiable physical pain or mental suffering" means the aforementioned as with misdemeanor abuse.

1.iii. Abuse

"Elder abuse" can hateful any of the following:

concrete abuse (which is infliction of unjustifiable pain or injury on a senior victim),
emotional abuse (which tin take the form of isolation or ridicule),
fail and endangerment (which means placing the senior in a situation that endangers his health and rubber), an
financial exploitation (which is likewise known assenior fraud orelder financial abuse).⁴

Note that a prosecutor must prove the following to convict a person offinancial abuse:

the defendant committed afinancial criminal offense (eastward.g., theft, fraud, or embezzlement),
the property stolen belonged to a person who is65 or older, and
the defendant was a caretaker for this person orknew that the victim was elderly.^five

Example: Roman works in a nursing home where all the residents are over the age of 65. Roman occasionally takes loose money that he finds in the drawers of the residents.

Hither, Roman is guilty of financial elder corruption. He unlawfully took coin from seniors when he knew that all the victims were 65 or older. And it does not matter that this theft did not involve banking concern accounts or financial institutions. Simply taking modest amounts of cash is financial abuse.

1.iv. Willfully and criminal negligence

For purposes of this statue, "willfully" means to practice something:

deliberately, or
on purpose.^{half dozen}

"Criminal negligence" means that:

a person acts and then unreasonably that,
his actions reflect a disregard for human life.^vii

Instance: Janis's 79-yr-old mom lives with her. The female parent cannot move or feed herself due to extreme Alzheimer's disease. For almost ii weeks, Janis does not giver her mom any food or h2o. The mother almost dies from dehydration.

Hither, the facts show that Janis actions rise to the level of criminal negligence,

Note that a prosecutorcannot bear witness criminal negligence unless:

the defendant had,
a legal duty to act.⁸

Case: Bob is an elderly stroke victim that lives with his son Richard. Bob'south daughter, Susan, used to be his caretaker only she no longer is. But she still visits with Bob and Richard.

On a few occasions, she expresses concern virtually the care her brother is providing to her dad. One day Bob is found expressionless in his bedroom in Richard'southward house. He died of septic shock that was caused by bedsores, malnutrition, and dehydration. Police abort Susan and charge her with elder abuse.

Here, Susan is not guilty of a crime. She had no legal duty to take care of her male parent or control her brother's behavior.

attorney speaking with judge at sidebar

Particularly trained deputy prosecutors will prosecute most senior abuse cases

2. Who prosecutes senior abuse cases?

Many prosecuting agencies (like a county's District Attorney'due south Part) accept:

special units,
that handle elder abuse cases.

This ways that aspecially trained deputy prosecutor volition prosecute most senior abuse cases.

Local law enforcement will refer a instance to these units then a prosecutor volition decide whether to:

file charges,
rejectthe case, or
instruct a detective toinvestigate the allegations farther.

Certain factors will determinewhich agency prosecutes a senior abuse example. Some of these include:

where the alleged corruption took identify,
whether the criminal offense was a misdemeanor or a felony, and
the exact type of abuse that is alleged.

3. Are there defenses to Penal Code 368?

A defendant may assert alegal defense to challenge an abuse accuse.

Three common defenses are:

no willful human action,
no abuse, and/or
falsely accused.

iii.1. No willful human activity

Recollect that in many of these cases a prosecutor has to prove that a accused actedwillfully. This ways information technology is always a defense for an accused to say that he did non act deliberately. Perhaps, for example, a senior was injured as a result of the defendant'southward adventitious conduct.

iii.ii. No corruption

Too call back that at that place has to be sometype of corruption in these cases, like fail. Information technology is a defence force, therefore, for an accused to say that:

a senior did non suffer from,
any blazon of abuse or harm.

Once again, for example, peradventure an accident caused physical harm to an elder, and not an calumniating act.

3.3. Falsely defendant

Faux accusations do take place under these laws. Sometimes jealous family memberswrongfully accuse caregivers of abuse. Hateful spirited neighbors also falsely accuse siblings of elder corruption. This ways an accused tin can raise the defense that he wasunjustly blamed.

4. What are the penalties?

Misdemeanor elderberry abuse is punishable by:

custody in county jail for up to one year,
a maximum fine of $vi,000, and/or
restitution to the victim.⁹

Felony elder corruption is punishable by:

imprisonment in state prison for upward to four years,
a maximum fine of upwardly to $ten,000, and/or
restitution.¹⁰

Further, if a felony, and the victimactually suffers great bodily impairment, then:

the defendant can get,
anadditional 7 years in prison.^xi

v. Are there immigration consequences?

A 368 PC convictionmay take negative immigration consequences.

Depending on the facts of the example:

the corruption of a senior may,
get labeled as a crime involving moral turpitude (CIMT).¹²

This is a problem because a CIMT can result in a not-citizen being either:

deported, or
marked as inadmissible.

Therefore, a PC 368 confidence could have damaging immigration consequences.

half-dozen. Tin a person get a conviction expunged?

A persontin get an expungement of an abuse conviction, just:

only if convicted of misdemeanor abuse,
and non felony abuse.

Felony convictions cannot be expunged if the person was sentenced tostate prison.

However, a misdemeanor conviction tin can get expunged provided that the defendant:

successfully completes probation, or
successfully completes a jail term (whichever is applicative).

7. Does a conviction affect gun rights?

A conviction under Penal Codemaynegate a defendant's gun rights.

California constabulary says that information technology is illegal for convicted felons to:

own a gun, or
possess a gun.

This means that:

if a defendant is convicted offelony senior abuse,
he volition be stripped of his gun rights.

8. What are some resources for victims of elder abuse?

There are many resources available for victims of senior abuse. Some of these are:

the Heart of Excellence on Elderberry Abuse and Neglect,
Recognizing and Reporting Elder Abuse article,
A Guide for Preventing Abuse in Long Term Care Facilities, and
the website of the California Advocates for Nursing Abode Reform.

The following websites are also helpful:

Victim Connect,
Eldercare Locator, and
California'southward Victim Bounty Board.

9. Can victims file civil lawsuits?

An elder abuse victimcan file a civil lawsuit against an abuser. A suit can get filed perCalifornia Welfare and Institutions Code 15600.

This statute says the following parties can sue if abused:

any person65 years of age or older, or
a "dependent" adult betwixt the ages of xviii and 64.

A "dependent adult" is anyone that:

has concrete and mental limitations that,
restrict his power to carry out normal activities.

Notation that for either of these parties to take a ceremonious claim, the following must be true:

the defendant hadcare or custody,
of theelderly or dependent developed.¹³

Most of these suits get filed against health intendance providers. If a accommodate issuccessful a plaintiff may recover:

compensatory damages, and
castigating damages (in some cases).

10. Are there related offenses?

At that place are three crimes related to elder corruption. These are:

battery – PC 242,
rape – PC 261, and
criminal threats – PC 422.

10.1. Battery – PC 242

Penal Code 242 PC is the California statute that defines the crime of battery.

Simple battery consists of:

whatever willful and unlawful utilize of force or violence,
on someone else.

The offense tin occur even if the accused didn't cause the "victim" hurting or injury of any kind.

Battery of a senior would constitute as elder abuse.

10.2. Rape – PC 261

Penal Code 261 PC is the California statute that defines the criminal offence of "rape."

A person commits this crime if he/she has nonconsensual sexual intercourse with another person by means of threats, force or fraud.

Like elderberry abuse, people get unjustly blamed for this criminal offence. Therefore, a defense for this crime is that the accused was falsely defendant.

10.3. Criminal threats – PC 422

Penal Code 422 PC is the California statute that defines the crime of "criminal threats."

A "criminal threat" is when a person threatens to kill or physically harm someone and:

the "victim" is thereby placed in a country of fear,
the threat is specific and unequivocal, and
the defendant communicated the threat verbally, in writing, or via an electronically transmitted device.

For additional assistance…

call center at criminal defense law firm

Contact our law house for legal advice. Nosotros offer free consultations.

Facing charges for abuse of an elder? For boosted guidance or to discuss your case or your loved ane's case with a criminal defense chaser, nosotros invite y'all to contact us at Shouse Law Group. We have police offices in Los Angeles, San Diego, San Francisco, and throughout the state of California.

As well meet California'southward Adult Protective Services (APS). To report abuse, telephone call the hotline 1-833-401-0832.

In Colorado? Learn about elder abuse laws (CRS 18-6.5-103).

In Nevada? Learn about elder abuse laws (NRS 200.5099).

Legal References:

moatsarefirle.blogspot.com

Source: https://www.shouselaw.com/ca/defense/penal-code/368/