Last Updated on February 20, 2025
When people imagine elder abuse, they typically imagine dark, shabby nursing homes staffed by people who are inexperienced and underpaid and filled with residents who have been shuttered away by cheap, greedy relatives who don’t want to spend money on quality care. But elder abuse and neglect can happen in the nicest facilities and even in the seemingly kindest family homes.
Reports indicate the problem is becoming increasingly common. Allegations of mistreatment in many SoCal cities have doubled or even tripled since 2005, and The National Adult Protective Services Association says that one in nine elders has been reportedly abused, neglected, or exploited in 2019 —though they suspect the true numbers may be even higher. Even Stan Lee, the legendary comic book artist, is believed to have been a victim of elder abuse in his final years. Unfortunately, San Diego elder abuse criminal attorneys know that when there are more accusations of abuse, there are also more false accusations.
Elder Abuse Under California Law
When most people hear about abuse, they assume it involves physical assault or battery that may cause visible injuries or even wrongful death to the victim, but that is just one of the many ways senior citizens are routinely victimized. Victims may also suffer from sexual abuse, neglect, abandonment, isolation, psychological abuse, and financial exploitation.
California Penal Code 368 (PC) covers the majority of elder abuse laws in the state, with sexual assault crimes handled separately. 368 (PC) is broken up into sections based on the type of criminal activity. For example:
- Section (b) applies when someone willfully causes or permits an elderly person or dependent adult to suffer physical pain or mental suffering, as well as neglect that endangers the victim’s health, and that abuse or neglect is likely to result in serious bodily harm or death
- Section (c) is used for abuse and neglect cases where serious bodily harm was unlikely
- Section (f) prohibits the false imprisonment of an elder or dependent person through the use of violence, menace, fraud, or deceit
As stated above, sexual abuse of the elderly is charged under other penal codes. For example, lewd or lascivious acts (commonly called molestation) committed against a dependent person are filed under 288 (PC).
Financial Abuse of Seniors
Financial exploitation is the most common type of elder abuse. It may involve criminal acts ranging from a family member tricking their loved one into paying their college tuition to robo callers that convince the senior to provide personal information later used for identity theft. Financial abuse is twice as common as physical crimes against seniors, and experts believe only 1 in 44 cases are reported.
These crimes are covered under Penal Codes 368(d) and 368(e) (PC). Section (d) is filed when the suspect is not a caregiver, and (e) is charged when they are.
Unfortunately, fiscal abuse is also among the most misreported forms of elder abuse. It’s all-too-common for a stable-minded senior to give money to or change their will to benefit a nurse or friend, only for the family to claim fraud occurred after their loved one dies or starts to lose their faculties. If there’s enough circumstantial evidence to prove this is the case, the police and prosecutors may get involved and the new beneficiary may need to defend their rights with the help of a criminal defense lawyer experienced in elder abuse crimes.
Who is Protected by Elder Abuse Laws?
Under California law, an elder is someone over 65 years old. Elder abuse laws were enacted to help protect this population since so many individuals lose their physical strength or mental acumen after this age. However, these laws also protect those under 65 with physical or mental disabilities that limit their ability to defend their rights, which is why “dependent adults” are also covered under 368 (PC).
These laws cover all elders and dependent adults, whether they live in a 24-hour residential facility, with family members, or by themselves.
Elder Abuse Penalties
As you may imagine, the sentencing for elder abuse in California varies based on the specific penal code section the defendant was charged with. Abuse or neglect likely to result in serious bodily injury or death (filed under Section (b)) can be a misdemeanor or a felony. As a misdemeanor, this offense is punishable by no more than a year in jail, but as a felony, the maximum sentence is up to four years.
If the victim suffered great bodily injury, an extra three years will be applied to the penalty if the victim was under 70, but if they were over 70, this enhancement rises to five years. If the abuse or neglect caused the victim to die, the defendant will have an extra five years added to their sentence if the victim was under 70, and seven years if they were over 70. An elder abuse lawyer in San Diego can sometimes have these penalty enhancements dropped from the sentence.
When abuse or neglect was unlikely to cause serious bodily harm, the charges will be filed under Section (c). These charges are a misdemeanor.
While the specific charge for financial abuse of the elderly varies based on whether or not the defendant was a caregiver of the victim, the penalties are the same either way. When more than $950 worth of property was taken, the maximum penalty is up to four years imprisonment and $10,000 in fines, but if less than that was stolen, the penalty is no more than one year in county jail and a fine of $1,000. Whatever the charges, anyone convicted of this offense must also pay the victim restitution equal to what was stolen.
False imprisonment of an elderly or dependent person is punishable by up to four years in prison.
Related Charges
Those accused of elder abuse frequently face other criminal charges as well. If someone is suspicious about how a loved one died, they may accuse caregivers of wrongful death, which could result in manslaughter charges. Sexual abuse accusations often also include rape allegations. Threats of violence can also result in criminal threat or assault allegations, while actual physical abuse will be battery. Financial abuse may be filed alongside wire or mail fraud, forgery, or other white collar crimes.
Fighting Elder Abuse Crimes
False accusations of elder abuse are surprisingly common. Patients of caretakers occasionally make up false claims of abuse because they wish for increased independence or sometimes because they suffer from mental disabilities such as dementia. In cases involving family members’ claims, false allegations often stem from their being upset about seeing the physical or mental decline of a loved one or from jealousy over gifts the relative makes to a caregiver. Sometimes, a person may even accuse another to attempt to bring attention away from their own abusive acts, such as domestic violence.
On the other hand, abuse and neglect are sometimes all too real, and the defense attorney’s job is to mitigate their client’s responsibility. For example, just because someone was an orderly in an abusive nursing home doesn’t mean they were the one harming the patient. Similarly, if the victim was starving, their caregiver may not have been aware they were hiding, rather than eating, the food brought to their bed. If you find yourself in a similar situation, an elder neglect attorney in San Diego can make you appear sympathetic, which could result in a jury siding with you or help you secure the most beneficial plea bargain available.
These cases vary significantly in their scope and complexity. In some situations, evidence is flimsy and revolves around one family member claiming their relative was defrauded financially. Even so, elder monetary exploitation or fraud charges can be very complex. When hiring a San Diego attorney to handle a financial-related elder abuse case, ensure he has expertise with complicated monetary transactions.
While many accusations are based on limited evidence, in some cases, ample evidence points to abuse. It takes someone highly experienced in handling these crimes to craft a defense based on your circumstances. If the case against you is too strong, your attorney may instead work with the prosecution to negotiate a plea bargain that will minimize the potential sentence you could face.
If you have been accused of elder abuse in San Diego, attorney Peter M. Liss can help. Please call (760) 643-4050 or (858) 486-3024 to schedule a free consultation.
