Expert Elder Abuse California

Elder Abuse in California

In probate conservatorship proceedings in California, judges appoint a conservator to care for another adult who cannot care for him/herself or his/her finances. Attorneys are increasingly turning to forensic neuropsychologists to help understand the scientific evidence involved in these complicated cases. A qualified decisional capacity expert can help make assessments, testify in probate court, and assist investigations during probate conservatorship California cases.

Elder Abuse California: Extended Information

Keep reading for more information on the laws and statistics in addition to the lawsuit and reporting procedures surrounding elder abuse California.

California Elderly Abuse Laws

California elder abuse laws encompass both criminal and civil statutes. In California, elders are defined as persons 65 years and older. Generally, elder abuse California is defined as the abuse of an elder or dependent adult, which can often cause unjustifiable physical pain or mental suffering. On the criminal side, California primarily uses State Penal Codes 368 and 422 to prosecute crimes of abuse/neglect against elderly or senior residents. On the civil side, the California Welfare and Institutions Code provisions 15610.3, 15630, and 15657 have been enacted by the California State Legislature to govern the process of identifying and reporting elder abuse.

Elder Abuse California Penal Code

The two main statutes within the California Penal Code that deal with elder abuse are Section 422 and Section 368. We discuss them in more depth below.

California Penal Code, Section 368

Section (a) of California Penal Code 368 reads:

“The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.”

To read the entire penal code, you can visit the California Legislature’s website to read it in its entirety.

California Penal Code, Section 422

Another criminal provision often cited in elder abuse cases in the State of California is California Penal Code, Section 422.

(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

Read the full text of California Penal Code, Section 422 from the California Legislature website.

California Welfare and Institutions Code 15610.3

California Welfare and Institutions Code 15610.3 is in Chapter 11 of the Welfare and Institutions Code, part of the Elder Abuse and Dependent Adult Civil Procedures Act and concerns financial abuse of elders. The entire statute reads:

(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.
(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.
(d) For purposes of this section, “representative” means a person or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.
(Amended by Stats. 2013, Ch. 668, Sec. 2. Effective January 1, 2014.)

California Welfare and Institutions Code 15630

California Welfare and Institutions Code 15630 is in Chapter 11 of the Welfare and Institutions Code, part of the Elder Abuse and Dependent Adult Civil Procedures Act. The first tenet of the statute reads:

(a) Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter.

California Welfare and Institutions Code 15657

California Welfare and Institutions Code 15630 is in Chapter 11 of the Welfare and Institutions Code, part of the Elder Abuse and Dependent Adult Civil Procedures Act. The entire statute is displayed below:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.
(Amended by Stats. 2004, Ch. 886, Sec. 3. Effective January 1, 2005.)

Report of Suspected Dependent Adult/Elder Abuse – SOC 341

SOC 341 is a report of suspected dependent adult/elder abuse in California.This form, as adopted by the California Department of Social Services (CDSS), is required under Welfare and Institutions Code (WIC) Sections 15630 and 15658(a)(1). This form documents the information given by the reporting party on the suspected incident of abuse or neglect of an elder or dependent adult.

Elder Abuse Statute of Limitations California (Lawsuits)

The elder abuse statute of limitations for lawsuits in California is filing within two years of the intentional or negligent act. This is governed by the California Code of Civil Procedure 335.1.

Elder Abuse in California

Elder abuse in California is a serious and growing issue. By 2020, it is expected that 14% of the nation’s population will live in the state of California, an increase of 15.7 million people. Elder abuse California cases will likely increase in volume in California as the elderly population is expected to grow more than twice as fast as the total population.

Indicators of elder abuse include physical signs such as malnutrition, dehydration, bedsores, unexplained weight loss, and bruises. Behavioral indicators include agitation, anxiety, confusion, defensiveness, depression, withdrawal, and non-responsiveness. You may also notice that the elder may not be given the opportunity to speak for his or her self by caregivers or family members, caregivers express negative attitudes toward the elder, and that there are conflicting accounts of incidents by caregivers or family members.

California Elder Abuse Statistics

Nationwide, approximately 1 in 10 Americans over the age of 60 have fallen victim to elder abuse, and some studies estimate as high as 5 million American elders who are abused each year. It’s approximated that only 1 in 14 elder abuse cases are reported to authorities.

In nearly 60% of incidents of elder abuse/neglect, the perpetrator is a family member. Of all elder abuse perpetrators, two-thirds are spouses or adult children, but elder abuse and neglect can be perpetrated by nursing professionals or other caregivers.

Elder abuse and neglect has a serious effect on the physical, emotional, and financial health of elderly individuals and can cause severe physical pain or mental suffering. Abused elders have a 300% higher risk of death in comparison to those who have not experienced abuse or neglect. Additionally, estimates of financial abuse and fraud costs to American senior citizens range from $2.9 billion to $36.5 billion each year.

As previously stated, California Adult Protective Services estimates there are nearly 120,000 cases of reported elder abuse in each year in the state. APS also estimates that for every case that is reported, there are four that go unreported, which would put the number of actual cases of elder abuse near 600,000 every year in California.

Elder Abuse Lawsuits California

California elder abuse lawsuits involve the abuse and neglect of seniors and those in the care of others such as assisted living facilities, nursing homes, and home care situations. Not all elder abuse cases end in litigation, but many do.

In order to become a plaintiff filing an elder abuse lawsuit in California, you must have ‘legal standing’. California Civil Code of Procedure Section 367 states “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute CCCP 367.”  That means that the living elder must be considered the primary plaintiff in the lawsuit. However, a personal representative may be allowed to assist with the lawsuit under state law.

Plaintiffs in elder abuse lawsuits may include:

• The elder who experienced the abuse
• Family members who have witnessed the abuse
• The abused senior’s spouse
• Family members vested with the power of attorney
• Conservators or guardians of an elder who has been deemed incompetent

The lawsuit can include multiple plaintiffs. For example, a lawsuit regarding elder sexual abuse may name the abused elder as the primary plaintiff, but a spouse may also file for loss of consortium damages for their suffering caused by the loss of comfort and care of the abused plaintiff.

The statute of limitations under California elder abuse laws dictates that elder abuse lawsuits must be filed within two years of the intentional or negligent act. In civil proceedings in California, the California Welfare and Institutions Code that are most commonly cited include 15610.3, 15630, and 15657.

Elder Abuse Reporting California

The standard reporting mechanism for elder abuse California is SOC 341. The Report of Suspected Dependent Adult/Elder Abuse is required under the Welfare and Institutions Code (WIC) Sections 15630 and 15658(a)(1). This form documents the information given by the reporting party on the suspected incident of abuse or neglect of an elder or dependent adult.

If a senior is in immediate danger, call 911. If you suspect that a senior is being abused or neglected, you should contact a local Adult Protective Services office, Long-Term Care Ombudsman, or the police as soon as possible.