California Elder Abuse Defense Lawyer – Penal Code 368 PC

How My Rights Law Group Can Help You Beat PC 368 Elder Abuse Charges

The consequences of an elder abuse conviction are severe and can follow you around for the rest of your life, especially if you lack a skilled attorney at the onset. An experienced violent crimes attorney will defend and protect your interests. My Rights Law have a proven track record of success. To schedule a free, confidential consultation, call (888) 702-8882 or reach out through our secure web form.

According to the Nursing Home Abuse Center, approximately 1 in 10 elders are abused by nursing home staff or family members every year. Elder abuse is not limited to physical violence against an elder. It can include neglect and financial abuse. In fact, according to Consumer Affairs, elders lose approximately $3 billion each year to financial abuse, and more than 3.5 million elders are the victims of financial exploitation each year. While everyone may be the target of scammers, those over 60 years old are often more vulnerable, and victims over 80 years old report even higher financial losses. California law defines elder abuse as physical or emotional abuse, neglect, or financial exploitation of a victim 65 years or older.

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How Does California Define Elder Abuse?

Under California Penal Code 368 PC, elder abuse can be considered a misdemeanor offense or a felony offense, depending on the circumstances of the abuse.

Misdemeanor Elder Abuse

If a prosecutor can prove the following elements, a defendant will be convicted of misdemeanor elder abuse:

  1. The defendant willfully or with gross negligence subjected an older adult to unjustifiable physical pain or mental suffering,[1]
  2. The conduct could have endangered the life or health of the older adult, and
  3. The defendant knew or should have known that the victim was 65 years or older.[2]

Felony Elder Abuse

If a prosecutor can prove the following elements, a defendant will be convicted of felony elder abuse:

  1. The defendant willfully or with gross negligence subjected an older adult to unjustifiable physical pain or mental suffering,
  2. The conduct was likely to produce great bodily harm or death, and
  3. The defendant knew or should have known that the victim was 65 years or older.[3]

What Are The Forms Of Elder Abuse PC 368?

There are seven distinct types of elder abuse. They are usually committed by someone that an elder knows and trusts. The seven different forms of elder abuse are:

  1. Elder Physical Abuse
  2. Elder Sexual Abuse
  3. Elder Emotional Abuse
  4. Elder Financial Abuse
  5. Elder Neglect
  6. Elder Abandonment

Elder Physical Abuse

Elder physical abuse occurs when a person purposely uses physical force that may cause pain, injury, or impairment to an elder. Physical abuse can also include confining or restraining an elder, such as locking them in a room or tying them to a chair to prevent them from falling. Even if you think you do things for the elder’s safety and “good,” it may be considered a violation of their rights and considered abuse.

Elder Sexual Abuse

While you would think sexual abuse is clear, and it is in most situations, such as a paid caregiver raping or molesting an elder, a spouse forcing unwanted intercourse or sexual contact, or forcing them to watch inappropriate graphic images. However, it becomes more convoluted when an elder has dementia or other conditions affecting their mental capacity because it is harder to determine if they consented or not.

Elder Emotional Abuse

Emotional abuse, also known as psychological abuse, includes emotionally distressing activities such as yelling, threatening, intimidating, ignoring, or using hurtful words. Emotional abuse can also include isolating elders from their friends and family.

Senior Financial Abuse

As discussed above, elders lose approximately $3 billion worth of wealth per year. Financial abuse crimes include [4] [5]:

  • Theft
  • Scams
  • Fraud
  • Identity Theft
  • Changing names on insurance, wills, financial accounts, or property titles
  • Healthcare Fraud

Healthcare fraud is a specific type of financial abuse that occurs when healthcare providers engage in unethical activity. These activities include billing for services not rendered or prescribing inappropriate treatment for their financial gain.

Elder Neglect

Elder neglect occurs when a caregiver fails to fulfill their obligations and meet their elder’s needs. It can be either passive or willful deprivation. Passive occurs when the caregiver is unaware of the elder’s needs. Willful deprivation occurs when a caregiver withholds good assistance or medical care.

Elder Abandonment

Elder abandonment occurs when someone who has assumed responsibility for care or custody of an elder leaves them without arranging an appropriate replacement.

What Are The Penalties For Elder Abuse PC 368?

According to California law, as discussed above, someone accused of elder abuse may be charged with a misdemeanor or a felony. The punishment for a misdemeanor is up to one year in jail, a fine up to $6,000, or both. In addition, if financial abuse occurs, the victim will receive restitution.

If the defendant is charged with a felony, they may receive up to four years in prison, a fine of $10,000, or both. However, if the victim actually suffers great bodily harm, then the defendant can get another seven years in prison.

What Are The Defenses To Elder Abuse Charges PC 368?

If you are charged with elder abuse, a defendant may assert a legal defense to challenge an abuse charge. To prove elder abuse, the prosecutor must show that there was willful abuse. Therefore, two common defenses include no willful act and no abuse.

No Willful Act

A prosecutor must prove that a defendant acted willfully, meaning that there is always a defense to say the defendant did not act deliberately. For example, if the defendant caused an accident that injured the elder, it cannot be considered elder abuse.

No Abuse

Moreover, the accused may say that the senior did not suffer from abuse or harm. If the prosecution cannot prove beyond a reasonable doubt that elder abuse occurred, the charges will be dropped.

What Is The Statute Of Limitations For Elder Abuse PC 368?

Under California law, the statute of limitations for elder abuse is two years. The period begins at the date of the injury or when someone detected abuse. Sometimes it is difficult to determine when the clock should have started running.

Hiring An Elder Abuse Defense Attorney In California

If you have been charged with the crime of elder abuse, it is essential that you hire an experienced criminal defense attorney to represent you. Elder abuse laws are complex and challenging to navigate without the help of an attorney. At My Rights Law, our experienced elder abuse defense lawyers can help protect your rights and ensure you get the lowest sentence possible or drop the charges altogether. Call (888) 702-8882 or reach out through our secure form to schedule a free, confidential consultation.

Other violent crimes we defend include Animal Cruelty, Manslaughter

FOOTNOTES
[1] People v. Curtiss (1931) 116 Cal.App.Supp. 771.
[2] California Penal Code 368 PC.
[3] California Penal Code 368 PC.
[4] People v. Heitzman (1994) 9 Cal.4th 189
[5] California Penal Code 368 PC