Elder Abuse Defense

Elder Abuse (Penal Code section 368)

With California's aging population, police and prosecutors are encountering ever greater numbers of elder abuse cases. In 1982, the California Legislature declared that elderly persons deserved special consideration and protection under the law. Penal Code section 368 was thus enacted to ensure these protections and to criminalize acts, which under this law, are defined as abusive of this specially protected class. This law also provides the same protections to dependent adults (any person aged 18 to 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). An Orange County elder abuse defense lawyer can assist you if you are accused of violating this law.

Under California law, an elderly person is defined as anyone over the age of 65. Penal Code section 368 makes it a crime to willfully cause or allow an elderly person to suffer or to needlessly inflict pain or suffering upon an elder. Even a person who does not directly cause the abuse to an elder, but is the elder's caregiver and knowingly allows the elder to be abused, can be charged with this crime. This statute penalizes not only physical abuse, but emotional abuse as well. Financial abuse, such as stealing from an elder or embezzling an elder's funds, is also a crime under this statute.

Elder abuse can be charged as a misdemeanor or a felony and under certain circumstances, discussed in greater detail below, can result in a lengthy prison sentence.

Sometimes even normally loving caregivers find themselves charged with a crime under this statute. An example of this could be a situation in which the caregiver, unable to cope with the demands of the elderly person, uncharacteristically snaps and hits the elderly person. An example of emotional abuse might be the refusal of a caregiver to let the elderly person in his or her care have contact with others. Financial abuse could be charged, for example, against a grandson who pilfered even a small amount of funds from his grandmother's bank account. The scenarios are many and varied, but what triggers these charges is the allegation that someone knowingly took advantage, neglected, or abused an elder or allowed that to happen if the elder was under the person's care.

Whatever the circumstances of the charge, elder abuse is not a trivial matter and if charged with any crime under this statute, an experienced elder abuse defense attorney in Orange County should be consulted immediately. Elder Abuse charges are often charged in situations where further investigation establishes that there is insufficient evidence to bring the charge, but you cannot count on the prosecution to drop these charges, even when they are unwarranted. As an experienced criminal defense attorney with proven results, including the defense of those charged with elder abuse, I will aggressively investigate and defend you against any charge of elder abuse. Contact me at any time to set up a confidential consultation with an Orange County elder abuse defense attorney without charge. I will work with you and your family to provide a fee structure that best suits your circumstances.

Sentencing

Elder Abuse is punished according to the circumstances of the alleged crime. It is a misdemeanor when the abuse was not likely to cause great bodily harm or death to the elder. Great bodily harm means a significant or substantial physical injury. A misdemeanor conviction under this statute could result in up to one year in jail and/or probation, fines and possible restitution to the victim.

If the abuse was likely to cause great bodily harm or death, the charge is a "wobbler," meaning it can be charged as a misdemeanor or a felony depending upon the circumstances of the crime and the criminal background of the person charged. If convicted as a misdemeanor, the sentence is up to one year in jail and/or probation, fines and possible restitution to the victim. A conviction of felony violation of this statute provides for a sentence of two, three, or four years imprisonment in state prison.

Additional sentencing terms apply when the elder does in fact suffer a substantial physical injury (great bodily injury). In such a case, three years may be added to the term of imprisonment if the elder victim was under 70 years of age or five years may be added if the elder was over 70 years of age. In a case where the elder died as a result of the abuse or neglect, the additional terms are five years and seven years respectively. What's more, the prosecution can also allege other charges besides just those alleged under the elder abuse law (such as assault, manslaughter, or even murder) with additional sentencing exposure.

When someone is charged with the false imprisonment of an elder, for example when an elder is locked in a room for a long period of time by a caregiver and not allowed to come out, the crime is a felony punishable by imprisonment for two, three, or four years. The false imprisonment under this violation must have been accomplished by the use of violence, menace, fraud, or deceit.

A person who is charged with a financial crime committed against an elder faces a potentially long prison sentence depending upon the circumstances. When the amount involved exceeds $950, the crime is a "wobbler" and can result in a sentence is up to one year in jail and/or probation, hefty fines, and likely an order of restitution to the victim. If charged as a felony, the statute provides for a sentence of imprisonment in a county jail for two, three, or four years and/or steep fines. If the amount involved is under $950, it is a misdemeanor with a potential sentence of up to one year in county jail and/or probation, fines and restitution. A financial crime against an elder includes theft, embezzlement, forgery, financial fraud, or identity theft. The prosecution may file other related charges in addition to the charges filed under the elder abuse statute. An elder abuse defense lawyer in Orange County can help you fight these charges.