There is an increase of cases on the abuse of older people in California that triggered the state to have various statutes that subject the abuser to civil and criminal liability. The law forbids a lack of caring for the elderly, mental, and physical abuse of the elderly. If you are accused of violating these provisions of the law, you will be charged with both criminal and civil offenses. In as much as there are genuine cases, there are those that have no merit or are misunderstood. If you are facing such allegations, you will need aggressive representation because a wrongful conviction is possible. The penalties for this offense are severe in addition to other consequences. Talking to a criminal lawyer will help you understand the offense and strategize ways for your defense. At The LA Criminal Defense Law Firm, we can represent you and fight these allegations on your behalf.

Overview of Elder Abuse Laws

The statute that defines elder abuse laws in California is found under PEN 368. This statute states that:

Any individual that knows that a person is elderly and willfully allows the elder to be placed in a position that can harm them or cause death is guilty of a criminal offense. The statute forbids one from allowing an elder to suffer unreasonable mental and physical pain. One should not knowingly place an older adult in a situation that can result in injuries or where their general wellbeing is endangered. If you are found guilty of abusing an elderly, the laws are stringent, and you will face jail time as well as a fine in addition to other penalties.

According to PEN 368, elder abuse can be carried out in various ways, as discussed below. For purposes of understanding, an elderly person in California is one that is 65 years and over. The methods of physical abuse can be inflicted include:

  • Physical abuse – This is where an elder is abused physically by inflicting injuries on their body. A perpetrator can deny the elder food, strike them, and cause physical injuries, among other ways.
  • Emotional abuse – a perpetrator of this offense can ridicule the elder, use derogatory words against them, deny them social connection, among other forms of violence. This is usually a way to inflict mental or psychological abuse on the elderly.
  • Endangerment and neglect – this happens when the perpetrator willingly puts the elderly person in a situation that endangers their health, life, or safety. For instance, during the winter, a person can leave the elderly person without warm clothing, and in a house not heated for long periods. The perpetrator can also deny the elder from accessing medical care when they fall sick or filling their prescriptions if they are suffering from a lifestyle disease. This puts them in danger of dying, and they suffer from the sickness. Other caregivers can sexually molest an older person from their homes or a nursing home.
  • Financial exploitation – this is another common form of abuse among the elderly. The person taking care of them can trick them into signing checks or forging their signatures, and taking money from their accounts. A person can also take advantage of a senior and ask them to invest in a profitable venture when they know it is not the case. They just need to access the money for themselves. Some will divert the senior’s social security payments to themselves, especially when the senior can do nothing without their help. There are many ways an older person can be exploited financially by their caregivers.

Special and Increased Protection

The California legislature has addressed elder abuse upon realizing that dependent adults are often on medication, are confused, or maybe physically or mentally impaired. The elderly are also unable to protect themselves in many circumstances as compared to younger people. Some are unable to understand the abuse against them or report it. Because of this, the legislature found it necessary to pass a law that gives exceptional protection for the seniors.

As a result, PEN 368 was enacted in 1983. This was also in response to a request by agencies of law enforcement who argued that they needed a law that would allow them to open criminal proceedings against individuals reported abusing the elderly.

The law was again amended in 1986 to expand it from only dependent adults that, due to their age, physical, and mental disability, were unable to take care of themselves. The law now included any individual that is 65 years or over, irrespective of their physical or mental abilities to be protected from abuse.

How Elder Abuse Charges are Reported and Prosecuted

Most agencies charged with prosecuting criminal offenses have a particular unit that deals specifically with elder abuse cases. These agencies put a well trained and specialized deputy prosecutor to oversee each case from the point of filing it to its trial, and finally sentencing.

Most of the agencies provide the public with an exclusive direct line to report any suspected criminal activities against an elder. However, most of the cases of elder abuse are reported by police officers.

There are plenty of sources where the police received complaints from. Some include concerned friends or family members of older adults. Adult protective services also report to the police any cases of elder abuse they come across. When an elder visits a doctor, the doctor can identify physical abuse while examining them, among other forms of abuse. A doctor and even a caregiver can also report suspected elder abuse to the police.

After receiving the report, an agency evaluates the case and decides whether to accept and reject it. When they see a case has merit or is not clear, they may request for further investigation. Some cases are not genuine and are often rejected and not pursued. This is because there are many reports of elder abuse that are directed towards innocent persons.

An elder can be confused or angry and make unfounded claims. Other times, a family member can be jealous of the relationship between the caregiver and the elderly person. They may fear they will be disinherited, or the caregiver receives special favors from the elderly. As a result, they may make false accusations so that they can gain control of the elder’s finances. There are also times where genuinely concerned family members or friends may report abuse by a caregiver when they lack evidence. They often confuse some physical signs as abuse when they are not abused at all.

Upon an agency receiving a complaint, a decision is made on which one will take the responsibility of prosecuting the case. In deciding on the agency to prosecute, a few factors are taken into consideration. These are:

  • The place the alleged abuse against the senior took place
  • How significant the abuse is; is it a felony or a misdemeanor
  • The kind of abuse alleged to have taken place

These considerations are necessary because some agencies are designed to deal with felony offenses only. Equally, some agencies are assigned to prosecute misdemeanor claims only. Others only deal with abuse from senior nursing homes or from treatment facilities that house seniors. Although there are many aspects of senior abuse, some agencies specialize in certain cases and not others. For instance, the Los Angeles District Attorney’s Elder Abuse Unit only deals with cases on financial abuse among the elderly. The financial abuse, however, involves when only substantial sums of money are taken, or the fraud was carried out at a sophisticated level.

Proving Elder Abuse Claims

As earlier stated, many reports based on lies or lack merit. However, even in the cases that proceed to trial as credible ones, the prosecutor must prove the caregiver is guilty of the offense. For one to be convicted of violating PEN 368, some aspects of the offense must be proven. These elements are:

  • The defendant willingly and negligently subjected the senior person to unnecessary pain physically or mentally. Alternatively, the defendant allowed the same to happen through another person
  • The behavior of the defendant against the elderly happened in circumstances that could have likely resulted in significant bodily injuries or even death
  • The defendant knew that the person was over 65 years

A charge on misdemeanor offense has similar elements with one significant difference. That the behavior of the defendant was carried out under circumstances that may have caused injuries or death. The difference between a felony and a misdemeanor charge is that in the crime, there were definite conditions that would have resulted in injuries or death. In a misdemeanor, there was no certainty the situation would have led to injuries or death, but it was possible.

In understanding the law on elder abuse, there are essential elements or words used to describe the factors that are important to understand. These are:


A willful act is when a person does something with full knowledge of their actions and the possible intended results. When a person willfully allows an elder to be abused, it means they did it on purpose and intended for the person to suffer the abuse.

Criminal Negligence

To be found guilty of elder abuse offense, a defendant must have been negligent in a criminal manner and acted willingly. When one is accused of criminal negligence, it goes beyond ordinary or standard negligence. A person acting negligently, in this case, is when their behavior disregards the importance of human life. However, not every person can be accused of criminal negligence. A prosecutor must show that the defendant criminal negligence if the defendant was legally required to act. This makes the offense complicated and makes it necessary to hire a criminal lawyer in your defense.

Unjustifiable or Unnecessary Pain and Mental Suffering

This is just as it is stated. There is justifiable pain and an unjustifiable one. For instance, if a doctor orders a senior to physiotherapy, the caregiver will proceed to give it, and it may be painful. This pain is justifiable. Unjustifiable pain maybe when you ask a senior to do chores that you know with their physical conditions they are unable to, and it causes them pain.

Circumstances or Situations that can Result in Significant Bodily Injuries

A substantial or significant injury, as described under the laws on domestic violence in California, are not minor injuries or trivial ones. Under the law on elder abuse, there is, however, no requirement for the elder to suffer the harm, but placing them in a situation that can cause harm is sufficient.

Penalties for Violating PEN 368 in California

Elder abuse law is a wobbler offense in California. This means a person accused of this offense can face misdemeanor or felony charges. A prosecutor in making his decision considers the facts of the crime and the criminal history of the defendant. The penalties for a misdemeanor and a felony conviction differ in severity.

When a defendant is convicted of misdemeanor charges, they can be sentenced to various penalties that include:

  • Informal or summary probation
  • County jail imprisonment not exceeding a year
  • A cash fine not exceeding $6,000 if a first offender. For any other subsequent offense on the same, the fine increases but not more than $10,000
  • Payment of restitution the abuse victim
  • Payment of counseling costs for the victim
  • The defendant can also be ordered to go for counseling.

A felony conviction carries more severe penalties for the defendant. Some of these penalties include:

  • Being sentenced to formal probation
  • Being sentenced to serve time in the state prison for between two and four years. If the victim suffered significant injuries or the abuse led to their death, the defendant would be sentenced to more prison time. This will be three to seven years imprisonment that is served consecutively with the other sentence. Additionally, the defendant earns a strike under the laws of three strikes in California.
  • The defendant will be ordered to pay a fine not exceeding $10,000
  • The defendant will be asked to pay the victim of the abuse restitution
  • The defendant may be ordered to pay for counseling for the victim and also attend counseling as well.

Legal Defenses for PEN 368 Violations

As earlier stated, there are many allegations of senior abuse that are falsified, and an innocent person is on the receiving end. There are times when the accuser is making false accusations. Other times because of the various diseases and conditions seniors suffer from, they leave signs that can be confused for physical abuse.

To make it worse, the police, doctors, and social workers do not have sufficient training that would help them differentiate the signs they see in elders. Some symptoms may be because of age, illness, or an accident. However, the law mandates them to report any suspected case of abuse.

Based on the law, a failure to report a suspected case when the law mandates them to do so may result in them being prosecuted for a criminal offense. There are no consequences for reporting a situation that may be innocent. Because of this, a lot of reports are made on elder abuse where there is no evidence, and the individuals are protecting themselves against criminal charges.

Because of all these factors, for a person who is facing criminal charges of elder abuse, it is crucial to hire a criminal lawyer to fight the allegations for them. The good news is that there are various defense strategies a lawyer can use to fight these allegations on their behalf. Some of the defense strategies a lawyer can use include:

The injuries sustained were due to an accident

When a defendant did not intentionally inflict injuries on an elderly, and their behavior that led to the injuries was not negligent in a criminal nature, the defendant cannot be convicted of the offense. For instance, a caregiver minding a disabled person may accidentally drop them while transferring them to the bath. Because of the accident, a bruise will form, and a person can assume it is from abuse. A lawyer can argue the case and demonstrate the circumstances that led to the injury. If this is established, the defendant will not be convicted of the offense.

False Accusations

As earlier discussed, many reasons exist why individuals falsely accuse others of elder abuse. A family member may be jealous of the elder’s relationship with another family member or caregiver. They feel the person benefits from caring for the senior person, and they want the benefits to come to them. Sometimes as discussed above, an injury can be a result of an accident. Or a condition the elder is suffering from. A well-meaning person can report it as abuse without all the facts of the injury.

Mistaken Identity

It is also possible for a person to be mistakenly identified as the abuser. A senior may be abused, but he or she confuses the person that abused them. Sometimes when a person is a primary caregiver, and an elder is abused, it may easily be assumed the caregiver was responsible for the abuse.

Sometimes an elder parent may have disagreements with their child. Soon after, the parent displays abuse signs. It is easy for people or other family members to assume the child is responsible for the abuse.

Insufficient Evidence

For a defendant to be found guilty of elder abuse, the prosecutor must produce sufficient evidence to convince the court of the offense. A lawyer will work at instilling doubt in the prosecutor’s evidence to discredit their case. A lawyer will engage an expert that may testify the injuries the elderly person suffered are similar to those from an illness, age, or an accident. An expert can also testify to the elder’s mental state and claim they are delusional, senile, or paranoid, making their accusations invalid.

A lawyer can show evidence on how the defendant cared for the elderly sufficiently. This can be through the showing of prescription drug receipts, bills for heating, air conditioning, and doctor’s visits. A lawyer can gather every necessary document to show that the defendant adequately took care of the senior.

With all this evidence, the prosecutor can lose their case against the defendant.

An Isolated Event Led to the Abuse

Caring for an older adult can be emotionally and physically draining. The demands by the elderly can be exhausting that they push the caregiver to an extreme point emotionally. This can result in an abusive action against the elderly person. A lawyer in arguing your case can explain the circumstances that led to the abuse as an isolated incident. A lawyer can appeal to the emotional side of the jury or judge to empathize with the defendant. If they are convinced of this, the charges against the defendant can be dropped.

Related Offenses to Elder Abuse in California

Based on different circumstances, some crimes are related to elder abuse by sharing their elements or are often committed alongside elder abuse offenses. Some of these offenses are:

Battery – PEN 242

This statute prohibits the use of violence or force intentionally against another person. If in committing elder abuse, a person deliberately strikes or attacks a senior person, the offender can be charged with two offenses.

An offender could be charged with both elder abuse and misdemeanor battery if no significant injuries were sustained. If convicted of a misdemeanor battery, the defendant can be charged a fine of not more than $2,000 and jail time not exceeding 6 months.

If significant injuries were sustained, the penalties against the defendant increase because the offense is prosecuted as a felony.

PEN 261 – Rape

If a person engages in sexual intercourse with an elderly that is not consensual, it is termed as rape. The sexual intercourse may have been forced or by use of threats against the senior. Some elders are unable to give consent because they are sick or incapacitated.

Rape charges are prosecuted as felony offenses. A conviction will lead to severe penalties that include state imprisonment for three or six or eight years, among other penalties. A rape charge can be brought against a defendant alongside elder abuse charges.

PEN 422 – Criminal Threats

Sometimes a caregiver may threaten an elderly under their care while still abusing them. For instance, he or she may tell the elders that if they find out they are not in their will, they will kill them. Others may force to see the elder write their will and threaten them with consequences if they don’t give them what they want in the will.

Find a Los Angeles Criminal Lawyer Near Me

Charges of elder abuse are substantial, with severe penalties to the offender. Because of the requirements of the offense, many people are falsely accused and can end up being wrongly convicted. For this reason, it is crucial to hire a criminal lawyer to defend you against these allegations and avoid a conviction. At The LA Criminal Defense Law Firm, we are experienced lawyers passionate about defending our clients against criminal offenses. Call us at 310-935-1675, and let us discuss your case in detail.