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The increasing population of aging Americans is a demographic change never before seen in this country. The large number of baby-boomers who are entering assisted living and nursing care facilities is growing every day. Thus, California enacted a powerful set of laws to help prevent abuse and neglect to its seniors. California’s elder abuse statute PC 368 applies to any harm to any person age 65 or older.

There are several criminal laws that can bring felony charges for elder abuse. Additionally, there are many civil penalties that protect vulnerable elders from neglect and harm from their caregivers. Facing a charge or investigation of elder abuse is a devastating experience. Usually, the parties involved are related in some form or another, and therefore, the situation is emotionally charged. Often an older individual will have a 24-hour care provider who assists with medical and daily living needs. Facing accusations of elder abuse can be overwhelming. Experience and understanding of the laws from an elder abuse attorney can help guide anyone who has never been involved in the legal system before.

What is Criminal Elder Abuse?

Elder abuse can involve many underlying crimes that affect victims of all ages such as theft, assault/battery, or identity theft. When the victim is 65 years of age or older, the accused could face much stricter penalties and punishment. This is a special enhancement or punishment that applies to any crime where the victim is over 65 years old. The law doesn’t require an individual to be dependent or have a mental or physical disability. Anyone over age 65 can fall within the protection of the elder abuse law.

Financial Elder Abuse

The Penal code that gives special protections to the elderly population also defines strict penalties for those who commit financial crimes. Many of the crimes covered in CA PC 530.5 such as embezzlement, theft and other fraud offenses are treated differently with elderly victims. The law gives additional protections to individuals over the age of 65 who are suffering from a financial fraud offense.

The punishment for violating the elder abuse law can bring a felony charge depending on the case. Any fraud offense involving money amounts over $950 will always be charged as felony fraud. As an example, a nurse who works in an assisted living facility accused of stealing the identity of a dependent adult and opening a fake line of credit will be charged with multiple felony offenses. The potential punishment is thousands in fines, restitution, and state prison. Caregivers and caretakers who are independent or work in nursing facilities are subject to additional financial penalties if convicted of financial elder abuse.

What is required to Prove Criminal Elder Abuse?

To be convicted of a felony under PC 368, the prosecutor must establish the following facts:

  • Either willfully or negligently:
  • You personally inflicted physical or mental suffering or allowed another person to do so
  • The circumstance was one where serious bodily injury or death was likely
  • You had knowledge or should have known the victim was over 65 years old

The difference between a felony and misdemeanor elder abuse is whether your actions or the actions of another person were likely to cause great bodily injury. Actions or neglect so serious that could lead to serious injury or death are considered felony conduct.

  • What does “willful” mean? The act must be intentional, deliberate, or on purpose. It is not willful, and therefore not abuse, if the caregiver is assisting his charge into bed and an injury occurs.
  • What is Criminal Negligence for Elder Abuse? Criminal negligence means that the act was something more than ordinary carelessness or a mistake in judgment and is so unreasonable that your actions reflect a disregard for human life.

Elder Abuse Defense Lawyer in San Diego

An elder abuse lawyer will approach any elder abuse case with a unique and skeptical understanding. Experience with cases in front of jury’s and experts give a good attorney insight into how elder abuse crimes come across to the public. Elder abuse cases are commonly charged with other serious offenses including battery and domestic violence Felony charges are possible in any situation where the serious physical injury occurred or a deadly weapon was involved. A conviction under PC 368 can be overwhelming and includes serious prison and financial penalties.

  • False Accusations: Where elder abuse is alleged emotions can often sway better judgment. When a loved one is injured or suffers there is often a rush to accuse and seek to assign blame. Accusations and arrest do not make anyone guilty. A defense against false statements and a simple mistake is always a right to anyone facing a criminal charge.
  • Mistake of Identification: Many of the most vulnerable in society are the elderly who suffer from early dementia or Alzheimer’s. Individuals who are in a nursing facility or who have multiple caregivers are often in the most need for intensive daily care. Mistake of fact and identity is entirely reasonable when a victim has suffered serious physical or emotional harm. Medical and elder care expert’s can offer significant insight as to how an accuser can mistake one person who is entirely innocent of committing a crime.
  • Lack of Evidence: The prosecution in all criminal trials must prove beyond a reasonable doubt that the evidence presented is credible and fits the allegations. Cases of injury to an elder or dependent adult occur for many reasons that do not rise to the level of a crime. Negligence and inattention by a caregiver lead to thousands of injured seniors every year. Professional negligence by a nursing home care facility that is understaffed or poorly managed. The simple fact that the elderly population is far more likely to suffer injury even when the defendant did not act with any intent to harm.

What is the Punishment for Criminal Elder Abuse?

Although PC 368 is a “wobbler” and can be charged as a felony or a misdemeanor the specific nature of every case makes every situation unique. Since many of those arrested for elder abuse work in the healthcare and nursing industry, the effect can be devastating. Even a misdemeanor conviction for an elder abuse crime will likely involve significant fines and the loss of a professional license.

Criminal Defense Lawyer Role In Elder Abuse

An experienced San Diego criminal lawyer understands that elder abuse can exist in the shadows. Victims often suffer years at the hands of people who are never arrested. The wrongfully accused and arrested can suffer for the actions of guilty parties. Financial exploitation and physical abuse of elderly is treated very seriously by the court system. A proper understanding of the legal system and elder abuse means relying on experience in court and relying on the best experts available.

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