According to 2018 data from the international nonprofit World Health Organization, one in six people over the age of 60 experienced some form of abuse in community settings in 2017, with alarmingly high rates of abuse occurring in what should be safe environments such as nursing homes and long-term care facilities. With the global elderly population set to hit roughly 2 billion people worldwide by 2050, the physical, psychological and emotional damages wrought by elder abuse couldn't be a more serious – or more wide-reaching – epidemic.
That's where California elder abuse laws step in. Primarily governed by Penal Code Section 368, these laws aim to help prevent harm to those who often lack the power or resources to sufficiently defend themselves. As our nation's elderly all too often fall victim to unfortunate marginalization, these laws attempt to empower older generations; while some older people may be dependent on the care and attention of younger folks, they can also depend on California law to fight for their rights.
What Is Elder Abuse?
The law of the land in California defines an elderly person as someone who is 65 years of age or over. Many California elder abuse laws also apply to "dependent adults," which the state's Welfare and Institution Code defines in Section 15610.23 as "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."
Abuse toward elders may include the infliction of physical or mental harm, abandonment, financial exploitation (also known as senior fraud, which costs senior victims over $2.6 billion per year, according to the Downtown L.A. Law Group) and neglect, among other wrongdoings. The nonprofit California Advocates for Nursing Home Reform notes that elder abuse can result in a wide range of consequences, including physical injury, malnutrition, weight loss and behavioral problems such as depression, withdrawal and anxiety, among many other hurtful consequences. Emotional elder abuse, which is typically harder to spot than physical or financial harm, includes verbal abuse, humiliation and threats, among other offenses. If such abuse includes threats of death, abusers can also be charged with the felony violation of criminal threats under California Penal Code Section 422.
The state of California legally categorizes elder abuse in two different groups: Civil elder abuse and criminal elder abuse.
Read More: How to File Charges for Elder Abuse
California Elder Abuse Law: Civil
In the State of California, much of the civil law regarding elder abuse is laid out in the civil code contained in the Welfare and Institutions Code, Section 15610.
According to the Code, civil elder abuse includes abandonment, abduction, financial abuse (such as telemarketing fraud, misappropriation of assets, Social Security diversion, forging signatures or failure to provide care upon payment), isolation (including preventing an elder from receiving mail, phone calls or visitors), neglect, physical abuse or any other sort of mistreatment that results in physical or mental pain or suffering. This may also include threats or intimidating behavior, or the failure of an elder's custodian to provide care, if such deprivation results in physical or mental harm to the elder. This latter form of abuse is often referred to as neglect in legal guidelines.
Neglect abuses often deprive seniors of basic necessities, such as food, shelter, hygiene, health care, clothing or necessary protection against health and safety hazards.
California Elder Abuse Law: Criminal
When it comes to detailing California elder abuse laws, Penal Code 368 PC serves as the state's primary governing guide, and it does so in great detail. This section reiterates many of the same forms of elder abuse covered under the civil law in the Welfare and Institutions Code – casting a wide net of warning against unjustifiable physical pain and mental suffering inflicted upon elders – but it expands on the definition of elder abuse. According to Penal Code Section 368, when someone willfully commits physical or psychological elder abuse or willfully puts an elder in a situation in which their physical health or mental well-being is in danger (or knowingly allows these situations to occur via neglect), they are committing criminal elder abuse. The will to abuse serves as a key distinction between criminal and civil elder abuse in California.
As defined by the State of California Department of Justice, criminal elder abuse may also include murder, rape and sexual penetration, lewd or lascivious acts, theft and embezzlement. Similarly, aiding or encouraging a suicide, which is detailed in California Penal Code Section 401, may fall under the category of elder abuse if a caregiver, relative or custodian of a senior encourages or assists their suicide. This crime is defined as a felony.
Reporting Elder Abuse
While any concerned citizen in the Golden State may report elder abuse to state or local authorities, many cases rely on the crucial testimony of people legally known as mandated reporters. These mandated reporters may include elder care facility staff, adult care custodians, healthcare professionals, clergy, adult protective service agency employees or local law enforcement personnel. Mandated reporters are obligated by law to report any suspected elder abuse in the state of California. These reports may be filed via form SOC 341 – a confidential Report of Suspected Dependent Adult/Elder Abuse form – obtained from the California Department of Social Services. But the reach of the law is far longer than the DSS in Cali.
In addition to the Department of Social Services, Californians have a whole host of institutions equipped to receive reports of elder abuse and start putting the gears of justice into motion. Alongside state and local law enforcement agencies, the Department of Public Health, Long-Term Ombudsman Program and Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA) at the Office of the State Attorney general can all lend a helping hand when abuse occurs in elder care facilities. Meanwhile, BMFEA and the Health Insurance Counseling Advocacy Program stand at the ready to cover health-related abuses. For elder financial abuse, violations may be reported to the county office of the District Attorney, the federal Consumer Financial Protection Bureau, the State Insurance Commissioner's Office or, in cases of mortgage scams, the United States Federal Trade Commission.
Under California law enacted in 1999, all Adult Protective Services agencies in the state are required to offer hotlines for individuals to report elder abuse, and these hotlines must remain in service 24 hours per day, seven days a week. Likewise, each county in California is legally required to maintain an APS agency to respond to abuse reports, offer community engagement initiatives, emergency services, case management for victims and, whenever possible, abuse intervention.
Punishment for Elder Abuse
Mandated reporters who fail to report elder abuse or otherwise inhibit reporting are subject to a misdemeanor charge, including six months in county jail and a $1,000 fine. If the failure to report is willful or results in death or extreme injury, that jail time may increase to up to one year, and the fine balloons to $5,000.
In the West Coast's biggest state, prosecutors may choose to treat elder abuse as a felony or a misdemeanor, prosecuting based on the unique details of the case and the criminal history of the defendant. In casual legalese, offenses that may be charged as either a misdemeanor or a felony are known as "wobbler" offenses. That said, state penal codes do attach charges to specific types of crimes.
Per Penal Code Section 368, those found guilty of physical or mental elder abuse that does not produce "great bodily harm or death" are subject to misdemeanor charges; when the abuse does result in significant bodily harm, punishment may include one to four years in county jail or state prison and a $6,000 fine. Jail time may increase to five years if the victim is 70 years of age or older. By the law recorded in Penal Code Section 187, murder charges result in 25 years up to a life sentence in prison without the possibility of parole, or may result in the death penalty. Elder abusers are often charged with battery under California Penal Code Section 242, which – as a misdemeanor – doles out fines of up to $2,000 and up to six months in county jail, or both. If battery results in serious bodily harm, abusers may be charged with a felony and up to four years in prison. Those who aid or encourage an elder's suicide are liable to face up to three years in state prison.
California's Penal Code Section 261 states that rape charges are punishable by three, six or eight years in state prison. Lewd or lascivious acts are considered felonies, and guilty parties may face five, eight or 10 years in state prison plus a $10,000 fine or up to three years in county jail.
Also detailed in Penal Code 368, legal punishment for financial crimes against elders varies based on whether or not the financial criminals are elder caretakers. For non-caretakers, consequences include a year in county jail and a $1,000 fine or two to four years in state prison when the value of the property taken exceeds $950. For crimes resulting in less than $950 in stolen or embezzled property, the punishment is a year in county jail and a $1,000 fine. Caretakers guilty of exceeding the $950 mark may face the $1,000 fee in addition to two, three or four years in state prison.
When abusers are related to their elder victims, their offenses often fall under the legal umbrella of California's domestic violence laws. Spouses, significant others, children and grandchildren, for instance, may face increased penalties due to their relationships with senior victims.
California Elder Abuse Law: Statute of Limitations
California elder abuse statutes do impose some limitations on charges. Financial elder abuse charges, such as theft or embezzlement, fall under a statute of limitations of five years from the date the offense is discovered (as stated in Penal Code Section 803). Penal Code Section 801 also imposes a statute of limitations of five years on elder abuse charges that don't involve theft or embezzlement. Unlike financial abuses, the five-year period begins on the date of the offense itself, not on the date of the offense's discovery. Wrongful death claims in the state of California carry a statute of limitations of one year.
According to the California Code of Civil Procedure Section 335, however, negligent acts have a statute of limitations of only two years from the date of the act. The state's Elder Abuse and Dependent Adult Civil Protection Act, part of the Welfare and Institutions Code, potentially increases that time frame to three years for elder abuses by way of the California Code of Civil Procedure Section 338, although the Downtown L.A. Law Group reports that no courts have ruled based upon this theory as yet.
- World Health Organization: Elder Abuse
- California Advocates for Nursing Home Reform: What Is Elder Abuse?
- California Department of Social Services: Report of Suspected Dependent Adult/Elder Abuse
- State of California Department of Justice: Elder Abuse Laws (Criminal)
- Shouse California Law Group: California Elder Abuse Laws Penal Code 368 PC
- Chambers Law Firm: Elder Abuse FAQs
- Wallin and Klarich: Punishment for Elder Abuse in California
- Lawyers.com: What Constitutes the Crime of Elder Abuse in California?
As a freelance writer and small business owner with a decade of experience, Dan has contributed legal- and finance-oriented content to diverse sources including Chron, Fortune, Zacks.com, Motley Fool and MSN Money, among others.