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ELDER ABUSE IN CALIFORNIA: THE BASIC LAW
Introduction:
Recognizing the increasing reported instances
of abuse of elderly people, the State of California has
passed various statues making such abuse subject to unique criminal and
civil liability. Essentially, the laws forbid the lack of care as well as
the physical or mental abuse of elderly dependent persons. Violation of
such provisions can subject the perpetrator to civil and, more
drastically, criminal liability. The definitions are contained in the
Welfare and Institutions Code and the criminal penalties in the Penal
Code.
It is important to note that many of the
statutes apply to ANY dependent adult regardless of age. It is also
important to note that failure to provide goods or services by a care
custodian, itself, may be considered elder abuse.
The Law:
Welfare and Institution Code Definitions.
Section
15610.23. (a) "Dependent
adult" means any person between the ages of 18 and 64 years who
resides in this state and who has physical or mental limitations that restrict
his or her ability to carry out normal activities or to protect his or
her rights, including, but not limited to, persons who have physical or
developmental disabilities, or
whose physical or mental abilities have diminished because of age.
(b) "Dependent adult"
includes any person between the ages of 18 and 64 years who is admitted
as an inpatient to a 24-hour health facility, as defined in Sections
1250, 1250.2, and 1250.3 of the Health
and Safety Code.
15610.27. "Elder" means
any person residing in this state, 65 years of age or older.
15610.07. "Abuse of an elder or a dependent
adult" means either of the following:
(a) Physical abuse, neglect, financial
abuse, abandonment, isolation, abduction, or other treatment with
resulting physical harm or pain or mental suffering.
(b) The deprivation by a care custodian of
goods or services that are necessary to avoid physical harm or mental
suffering.
15610.57.
(a) "Neglect" means either
of the following:
(1) The negligent failure of any person having the care or custody of an
elder or a dependent adult to exercise that degree of care that a
reasonable person in a like position would exercise.
(2) The negligent failure of an elder or dependent adult to exercise that
degree of self care that a reasonable person in a like position would
exercise.
(b) Neglect includes,
but is not limited to, all of the following:
(1) Failure
to assist in personal hygiene, or in the provision of food, clothing, or
shelter.
(2) Failure
to provide medical care for physical and mental health needs. No person
shall be
deemed neglected or abused for the sole reason that he or she voluntarily
relies on
treatment by spiritual means through prayer alone in lieu of medical
treatment.
(3) Failure
to protect from health and safety hazards.
(4) Failure
to prevent malnutrition or dehydration.
(5) Failure
of an elder or dependent adult to satisfy the needs specified in
paragraphs (1) to (4), inclusive, for
himself or herself as a result of poor cognitive
functioning, mental limitation, substance abuse, or chronic poor
health.
Both
the Courts and the various governmental agencies have held that abuse may
be defined in a broad category of actions:
·
Physical Abuse which includes but is not limited to
assault, battery, unreasonable restraints, etc. For further definition
look at California Welfare and Institution Code Section 15610.63
·
Psychological Abuse which includes but is not limited to
verbal abuse, harassment, or being confined to a room for extended
periods of time, etc. For further definition look at California Welfare
and Institution Code Section 15610.53
·
Financial Abuse which includes but is not limited to
fraudulent financial investment, extorting money from an elder, or anyone
who stands in a position of trust and uses that to their advantage, etc.
For further definition look at California Welfare and Institution Code
Section 15610.30
·
Neglect Abuse which includes but is not limited to
when an individual fails to give adequate personal hygiene, fails to
prevent malnutrition, fails to provide clothing or shelter, etc. For
further definition look at California
Welfare and Institution Code Section 15610.57(a)
·
Isolation Abuse which includes but is not limited to
an individual prevents another (or him or herself) from having contact
with other by refusing calls, mail or visitors. For further definition look at
California Welfare and Institution Code Section 15610.43
·
Abandonment which includes but is not limited to
an individual who willfully forsakes an elder. For further definition
look at California Welfare and Institution Code Section 15610.05
·
As
discussed below, the California
Penal Code Section 368
makes certain acts against an elder punishable by prison terms if
convicted in a criminal court.
·
Federal Law relating to elder abuse can be found in
The Older Americans Act, Title I, Section 102, The Older Americans Act,
Title III, Section 307, and The Older Americans Act, Title VII, Section
721.
It is in the
California Penal Code that the “teeth” of the elder abuse
laws are found. Put simply, one can go to jail if one abuses an elderly
or dependent person in California.
Penal
Code 368.
(a) The Legislature finds and declares
that crimes against elders and dependent adults are deserving of special
consideration and protection, not unlike the special protections provided
for minor children, because elders and dependent adults may be confused,
on various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or report
criminal conduct, or to testify in court proceedings on their own behalf.
(b) (1) Any person who, under
circumstances or conditions likely to produce great bodily harm or death,
willfully causes or permits any elder or dependent adult, with knowledge
that he or she is an elder or a 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, 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 two, three, or four years.
(2) If in the commission of
an offense described in paragraph (1), the victim suffers great bodily injury, as defined
in subdivision (e) of Section 12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the
victim is under 70 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 defendant proximately causes the death of the victim, the
defendant shall receive an
additional term in the state prison as follows:
(A) Five years if the
victim is under 70 years of age.
(B) Seven years if the
victim is 70 years of age or older.
(c) Any person who, under circumstances or conditions other than those likely to produce
great bodily harm or death, willfully causes or permits any elder or
dependent adult, with knowledge that he or she is an elder or a 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 may be endangered, is guilty
of a misdemeanor. A second or
subsequent violation of this subdivision is punishable by a fine not to
exceed two thousand dollars ($2,000), or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.
(d) Any person who is not a
caretaker who violates any provision of law proscribing theft or embezzlement, with respect to the
property of an elder or dependent adult, and who knows or reasonably
should know that the victim is an elder or dependent adult, is punishable by imprisonment in a county
jail not exceeding one year, or in the state prison for two, three, or
four years, when the money, labor, or real or personal property taken is
of a value exceeding four hundred dollars ($400); and by a fine not
exceeding one thousand dollars ($1,000), by imprisonment in a county jail
not exceeding one year, or by both that fine and imprisonment, when the
money, labor, or real or personal property taken is of a value not
exceeding four hundred dollars ($400).
(e) Any caretaker of an elder
or a dependent adult who violates any provision of law proscribing theft
or embezzlement, with respect to the property of that elder or dependent
adult, is punishable by
imprisonment in a county jail not exceeding one year, or in the state
prison for two, three, or four years when the money, labor, or real or
personal property taken is of a value exceeding four hundred dollars
($400), and by a fine not exceeding one thousand dollars ($1,000), by
imprisonment in a county jail not exceeding one year, or by both that
fine and imprisonment, when the money, labor, or real or personal
property taken is of a value not exceeding four hundred dollars ($400).
(f) Any person who commits the false imprisonment of an elder or
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison for two, three, or four
years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
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, but not limited
to, persons who have physical or developmental disabilities or whose
physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18
and 64 who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) As used in this section, "caretaker" means any person who
has the care, custody, or control of, or who stands in a position of
trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both this
section and Section 187 or 12022.7 or any other provision of law.
However, a person shall not receive an additional term of imprisonment
under both paragraphs (2) and (3) of subdivision (b) for any single
offense, nor shall a person receive an additional term of imprisonment
under both Section 12022.7 and paragraph (2) or (3) of subdivision (b)
for any single offense.
PRACTICAL ASPECTS
OF THE LAW:
The entire thrust
of the law is to provide for significant penalties for those who exploit
or abuse the elderly and it is to be noted that those entrusted with
their care…”care givers”…are held to a higher
standard of care and suffer greater penalties if they violate it. Whether
it is embezzling their money or failing to provide a clean and safe
environment, those who neglect or willfully abuse the elderly face stiff
penalties.
The problem,
of course, is that the elderly are often cut off from access to help and
are often dependent on the very people exploiting or abusing them.
Equally often, the elderly person recognizes that he or she is being
neglected or abused but has no one to turn to for help. A care giver once
generous in attention becomes increasingly ill tempered or abusive due to
issues that may have nothing to do with the elderly person and the victim
finds that he or she has slowly but surely become in danger.
An equally
dangerous problem is that good care providers are falsely accused or
their care is misconstrued. This writer once confronted a daughter whose
mother had claimed constant physical abuse and showed the writer fresh
bruises. The daughter burst into tears and explained that the mother
would bang her own arms against the wall in uncontrolled rages but that
no one would ever believe the daughter that such was the case. But even
as we talked I heard banging in the other room and we entered to find the
mother doing precisely that.
As with
child molestation, the issues are so emotional and the societal
condemnation so intense that fair and calm investigation is often next to
impossible to achieve. And when it is your mother or father that you
suspect of being abused by a caregiver, even a brother or sister, the
emotions can cloud all thinking and result in accusations that can
utterly destroy a family forever.
But the
danger is real and the sad fact is that as more and more people achieve
longer and longer lives we are bound to discover increasing amounts of
elder abuse and all of us…especially sons or daughters whose work
schedules require them to assign care of elderly parents to
another…should be on the lookout for this danger.
The following should be kept in mind:
·
There are many indicators for each type of
elder abuse. If you suspect elder
abuse, then you should report it to the various agencies available.
·
If the elder is in immediate danger then
your best recourse it to dial 911.
·
If
the abuse is taking place in a community setting, you should report it to
your local Adult Protective Agency.
·
In 1999, legislation was enacted to
provide services to combat and prevent elder abuse by providing a 24-hour
hotline to receive reports of abuse, response to all reports
of abuse, case management services to all victims, coordinating community
resources, emergency services, and intervention in cycle abuse. Each county is required in California
to provide such services which is mandated by SB 2199. The
number for Adult Protective Services is San Francisco is (415) 557 5230
or (800) 814 0009. Telephone information or your yellow pages will
provide the number for each and every other county in California.
Perhaps more elderly persons should remember the
stirring words of Dylan Thomas in a poem he wrote of his aging father:
Do not go gentle into that good night,
Old age should
burn and rave at close of day;
Rage, rage against
the dying of the light!
But this writer prefers the more gentle approach of
William Shakespeare:
Therefore
my age is as a lusty winter
Frosty, but
kindly.
Each elderly person is a wealth of experience and
history, a testimony as to what has gone before and an indication of
where each of us must go. It was once stated that each society must
ultimately be judged by how it treats its dependents: and that is no
truer than of how it treats the elderly.
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