LA Criminal Defense Lawyer Explains CA Elder Abuse Law Los Angeles Criminal Lawyer What is Elder Abuse? California law (penal code 368) defines elder abuse as “neglect, exploitation, or painful or harmful mistreatment of anyone who is 65 or older.” For example, a caregiver or family member deliberately withholding medication from an elderly individual would constitute punishable neglect under penal code 368. Elderly abuse may involve physical violence, psychological mistreatment, isolation, abandonment abduction, or false imprisonment. In addition, elder abuse includes the unlawful taking of a senior’s money or property. A caregiver in custody of an elderly individual is required to use the degree of care that a reasonable person in the same situation would have used. This standard includes: assisting the elder in personal hygiene and the provision of food, clothing and shelter; providing medical care for physical and mental health needs; protecting the elder from health and safety hazards; and preventing malnutrition and dehydration. Even if the caregiver is not the only contributing factor to the elder’s harm, she will be found liable for the harm if her conduct was a substantial factor in causing the harm. Who is Responsible for Reporting Elder Abuse? In some cases, one may be under a duty to report suspected elder abuse. Those who are responsible for an elderly individual’s care must report suspected abuse – whether that person is being paid to care for the elderly or not. This duty to report is also applicable to licensed staff and facilities caring for the elderly, as well as health practitioners, police officers, and clergy members. Those who are under a duty to report such abuse may actually face criminal charges for failing to report suspected elder abuse. Finally, to prevent financial exploitation of the elderly, officers and employees of financial institutions are under a duty to report suspected financial elder abuse, and failure to do so may result in civil penalties. What Are the Applicable California Laws on Elder Abuse? Penal code 368 is considered a wobbler. This means that it may be prosecuted as either a misdemeanor or a felony depending on mitigating or aggravating circumstances, as well as the facts of the case. In cases where the elder abuse is deliberate, egregious, or malicious – the district attorney is more likely to file the violation as a felony. Malice will be found when a defendant acts with the intent to cause injury, or when the conduct is despicable and carried out with a knowing and willful disregard of the elder’s rights or safety. As a misdemeanor, elder abuse carries a penalty of up to one year in jail, along with some hefty fines (thousands of dollars). If it is prosecuted as a felony, the conviction carries a punishment of two to four years in state prison. Other important facts in determining whether the defendant is charged with a misdemeanor or a felony is the defendant’s criminal history, and how early the defendant obtains representation. Hiring an attorney to take prompt action in contacting the district attorney with mitigating circumstances can greatly reduce the defendant’s chances of being convicted of a felony versus a misdemeanor. Defenses to Penal Code 368 (Common Defenses) Unfortunately, it is not uncommon for people to falsely accused of elder abuse. It is crucial to obtain an attorney with experience in this field of criminal law. Early attorney intervention may reduce the charges from a felony to misdemeanor, or even to an infraction or dismissal. While false accusations may be the result of familial tension, false accusations may also come from elders who may suffer from cognitive diseases. Finally, because those who are under a duty to report elder abuse may face personal liability by failing to report, it is likely that reports are filed in good faith, but without merit. Those under a duty to report are likely to report anything that may remotely indicate elder abuse. This becomes a problem when elders suffer from conditions that mimic the signs of physical abuse. Many of those who are under a duty to report are unable to distinguish the difference between actual abuse and the underlying medical condition. For these reasons, there are actually several routes in defending against a Penal Code 368 accusation. While the following defenses are not exhaustive, they are some of the more common defenses used in PC 368 cases. Mistake In some cases, the elder is actually abused. However, the defendant being accused of that abuse is not the person who did it. Primary caregivers are often the first to be scrutinized in elder abuse cases, but being the primary caregiver does not rule out the possibility that another person may be responsible. In addition, it is not uncommon for family members to bicker about who will receive the elder’s property upon death. Some family members may go so far as to accuse one family member of abuse in order to preclude any gifts to them once the elder passes away. Lack of Intent A conviction under PC 368 requires the defendant act willfully to cause unjustifiable abuse to the elder. If your attorney can prove that you did not act with the requisite mental state, then no conviction may lie under PC 368. Wrongful Accusation As discussed above, wrongful accusations under PC 368 are common. Some wrongful accusations are in good faith by those under a duty to report – while others are made in bad faith to harass or preclude the defendant from receiving any of the elder’s estate. A good defense attorney will explore this common defense. Self Defense Self defense is available when a defendant reasonably believes that self defense is necessary to protect himself or another from harm. The self defense must be reasonable and proportionate to the threatened harm. This defense is common in situations where an elder has a condition that makes them confused and physically aggressive. If the defendant believes that the force was necessary to prevent harm to himself or another, and no more force than necessary was used – this is likely to be a successful defense to a PC 368 charge. Insufficient Evidence Finally, somewhat of a “catch-all” defense is simply that the prosecutor has insufficient evidence to carry its burden of “beyond a reasonable doubt.” This defense will likely be most relevant in the very early stages. This is another reason to obtain counsel early on. If defense counsel can highlight the fact that the prosecutor has insufficient evidence to proceed, the prosecutor may decide not to pursue the charges at all. In addition, a good defense attorney may also use this defense to negotiate a favorable plea. CHILD ENDANGERMENT & ABUSE | FRAUD |VIOLENT CRIMES | THEFT CRIMES IF YOU OR A LOVED ONE HAS BEEN ARRESTED OR CHARGED WITH A CRIME, CONTACT THE LAW OFFICES OF NICHOLAS LONCAR NOW FOR A FREE CONSULTATION WITH A LOS ANGELES CRIMINAL DEFENSE LAWYER. 213-375-3775 LA SUPERIOR COURT | LAPD | LA DISTRICT ATTORNEY | LA PUBLIC DEFENDER | LA LAW LIBRARY
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