• What is Elder Abuse according to California Law?
  • March 23, 2011 | Author: Rivers J. Morrell
  • Law Firm: The Law Firm of Rivers J. Morrell III A Professional Corporation - Mission Viejo Office
  • Elder Abuse defined by California law

    There are a number of state statutes that address this issue.  There is physical, mental, emotional, and financial abuse.  At first glance, we generally think that elder abuse is only related to physical abuse.  However, there are a number of laws that address different kinds of abuse, including mental, emotional and financial.  By statute, an elder is someone who is over the age of 65.  However, some of the applicable statutes also cover disabled dependents who are much younger.

    California Welfare and Institutions Code § 15657

    When the abuse is physical and/or from neglect, then California Welfare and Institutions Code § 15657 allows for the recovery of attorneys fees, and costs, if the other person is guilty of recklessness, malice or fraud.  Generally in civil cases for neglect or physical injuries, one is not entitled to recover attorneys fees and costs.  Therefore, this statute adds extra recovery for the abused plaintiff, and serves to punish the abuser with the hopes of discouraging this kind of behavior.  In addition, if there is a death involved caused by the abuse, there are additional damages that one can recover, as noted in Welfare and Institutions Code §15657(b).

    Some examples of Physical and Emotional Elder Abuse under California Welfare and Institutions Code are as follows:

    1. Physical Assault.
    2. Unreasonable physical restraint.
    3. Excessive or prolonged deprivation of water or food.
    4. Sexual Assault.
    5. The failure to provide or assist in clothing or shelter/housing.
    6. Failure to provide medical care or personal hygiene.
    7. Failure to prevent dehydration or malnutrition.
    8. Withholding of emotional support.
    9. Verbally assaulting, threatening and/or intimidating.

    10.Excessive confinement.

    California Civil Code §3345 and Probate Code §859

    There can be many physical signs that are indicative of this kind of abuse, and often it is just a matter of taking a look at the elderly person and seeing how they are doing.  If they are not doing well, then it is important to look behind and beyond the person. If the abuse is financial in nature, then we will be looking at Civil Code §3345 and Probate Code §859.  These code sections allow for the recovery of double and triple damages.  Again the purpose of these statutes is to punish the abuser and set an example for the public at large, and to show that we will not tolerate this kind of abuse against the elderly. Again, attorneys fees are recoverable, under Welfare and Institutions Code §15657.30.

    Financial Elder Abuse in California

    Financial Elder Abuse can take many forms, some of which are not obvious at first.  In general it is the theft or embezzlement of money or other property.  It includes the manipulation of an elder causing him/her to turn their money over to another.  This can occur in such activities as door to door salesmen, telemarketing, charitable donations, investments, funeral and cemeteries, internet, home repair, predatory lending, estate planning, etc.

    It is also a crime to commit Elder Abuse.  California Penal Code § 368 provides, in part, as follows:

    “Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily hare or death, 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 health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year ...”
    If the victim suffers great bodily injury, then the defendant/abuser can receive an additional term of 3 years in state prison if the victim is under age 70, and if the victim is over 70, then the additional prison terms is 5 years...There are a number of additional statutes, and many cases that specifically address elder abuse.