San Diego Elder Abuse Lawyer
Defense for Lawsuits Alleging Elder Abuse in California
Abuse and neglect of the elderly – persons age 65 and older – is a serious offense punishable by both criminal and civil penalties in California.
According to the California Welfare & Institutions Code Section 15610 – known as the Elder Abuse and Dependent Adult Civil Protections Act – elder abuse can be:
- Physical abuse
- Financial abuse
- Other treatment resulting in harm, pain, or mental suffering
Penal Code 368: California's Elder Abuse Law
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 a San Diego elder abuse attorney can help guide anyone who has never been involved in the legal system before.
Quite often, the loved ones and family members of abused elders seek justice by pursuing a civil lawsuit against the perpetrator. If you or your organization has been the target of a civil action from someone alleging elder abuse, the Law Office of George Gedulin can represent you. Our San Diego elder abuse lawyers crafts strong, informed, and personalized defense strategies for every case we take on.
Defending a Civil Claim Under the Elder Abuse Act
In order to qualify for a civil elder abuse cause of action under the Elder Abuse Act, the plaintiff must prove that you, the defendant, had care or custody of the elder and that you accepted total responsibility for the elder’s basic care needs.
At a minimum, they must establish that you:
- Were responsible for supplying necessities, including food, hydration, hygiene, or medical care
- Were aware of the conditions that made the elder unable to obtain those necessities on his/her own
- Denied these necessities with knowledge that it would harm the elder
In this situation, the plaintiff has to meet a high burden of proof. Our elder abuse attorneys in San Diego understand the various defense strategies we can employ to prove a lack of negligence or that you or your organization were not solely responsible for the elder’s basic care in the first place.
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 in CA?
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.
Defenses for Elder Abuse Cases
Our San Diego 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.
Representation for Your Elder Abuse Charges in CA
Allegations of elder abuse are serious – to protect yourself and your organization, it is vital that you seek legal representation. At our firm, we offer representation for both civil and criminal elder abuse allegations. With our help, you have a better chance of mitigating, reducing, or avoiding the harsh penalties of an unfavorable judgment.
Contact our San Diego elder abuse attorneys at (858) 281-4605now.
16 Counts, Unlawful Sexual Intercourse with a Minor Sentence Reduced, All Other Charges Dropped
Client charged with multiple sexual assault offenses, facing 16 years in prison. Convicted of One Count of Sex with a Minor, 2 years Jail, All other charges dismissed.
24 Count, Insurance Fraud Conspiracy, Grand Theft in excess of $250,000 Reduced Sentence, Other Charges Dropped
Client charged as head of conspiracy to present false claims to insurance companies, losses over $250,000. Client facing 22 years in State Prison. Convicted of two counts of insurance fraud, sentenced to 2 years in jail, remaining charges dismissed.
Assault with semi-automatic Firearm, Criminal Threat, Domestic Violence Dismissed Charges
Charges exposed client to 8 years in State Prison and two serious strike felonies. Court dismisses all gun related charges at preliminary hearing, client pleads to domestic violence charge only, no custody.
Felony Domestic Violence Arrest All criminal charges dismissed
After arrest, defense investigation reveals that spouse was aggressor and caused harm to client, all criminal charges dismissed.
Felony Gun Possession, Felony Child Abuse Charges Dismissed
Client charged with felony gun possession and endangering life of a child being in illegal possession of loaded weapons in the home. Potential 6 year Prison sentence. Child endangerment charges dismissed, NO Custody.
Possession of 5KG of Methamphetamine while Armed with Loaded Gun Probation and Other Charges Dismissed.
Client facing 4 counts of possessing large quantity of Methamphetamine for sale and a loaded gun with no serial number. District Attorney offer of 6 years in State Prison. Ultimate resolution was a plea to gun possession only, probation and credit for time served with no additional jail time. All other charges dismissed.
Restraining Order, Accusations of Sexual Assault Case Dismissed
Defense Victory at trial for restraining order, Judge dismissed complaint against client, finding victims allegations and testimony not-credible.
Shoplifting from Naval Commissary Case Dismissed
Case Dismissed, record sealed in Federal Court
Welfare Fraud No Custody, Case Dismissed Following Probation
6 Counts of Fraud by Misrepresentation and Perjury. Possible 4 year prison sentence maximum. Defense negotiated with prosecution for Diversion Program.
Marijuana Possession for Sale/Transportation Plea to Simple Possession, Probation and Fines,
½ pound of Marijuana, $5,000, baggies, scales and Marijuana storage paraphernalia, potential 4 years in jail, Defense argued insufficient evidence to prove sales of Marijuana or Drug Trafficking and filed motion to return all seized property.