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.