What Is Elder Abuse And How To Respond

By Law Offices | Felicia Yates & Associates

 

This is Part Seven in a series of blog articles on California Personal Injury (PI) law.

The month of May has been officially designated by our nation as Older Americans Month (OAM).  The U.S. Department of Health and Human Services, Administration for Community Living, is responsible for spearheading our country's annual observance of OAM - #OlderAmericansMonth.  An older or elder American is typically defined as anyone 65 years of age and older.  The American Rescue Plan Act, signed into law on March 11, 2021 by U.S. President Joe Biden, enhances the Elder Justice Act, and guarantees that Adult Protective Services can be utilized to protect the safety of all adults throughout the aging process.

In California, elder (or dependent adult) abuse can be punished as both a Criminal wrongdoing, and a Civil (Tort) wrongdoing.  

Penal Code Section 368 generally defines the criminal offense of elder or dependent adult abuse, and states in part as follows:

"A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years."

For example, Nursing Home Neglect is defined as a failure, intentional or not, to provide a person with the care and services necessary to ensure freedom from harm or pain; a failure to react to a potentially dangerous situation resulting in resident harm or anxiety. 

California Welfare & Institutions Code Section 15610 generally defines the civil offense of abusing an elder or dependent adult as follows:

• Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm, pain, or mental anguish;
• The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; 
• Financial abuse, as defined in Section 15610.30;

Note: While an elder adult is defined as anyone 65 or older, a dependent adult is defined by California law as anyone between the ages of 18 and 64 "...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..."

California also mandates the reporting of elder or dependent adult abuse under the Welfare & Institutions Code.  Mandatory reporting is expected under the following circumstances:

• The victim reports that abuse has occurred, or you have knowledge of abuse;
• The mandated reporter observes the actual abusive incident;
  
• When an injury or condition reasonably leads the mandated reporter to suspect that abuse has occurred - even though the actual abuse was not observed;

If you have direct contact with an elder or dependent adult (which would include those who care for their day to day medical needs, assist or handle finances, or otherwise perform care needs), you are required to report any and all forms of abuse (e.g.  physical, neglect, sexual, mental suffering, financial, abandonment).  This would also include secondary caretakers such as family members and outside medical providers.  You should report and file a complaint against an abusive party by contacting the California Department of Public Health, and when appropriate, notify local authorities such as Adult Protective Services, Sheriff's Department, and the County District Attorney's office.  A failure to report an abuse that ultimately leads to death or great bodily injury, would result in both county jail time and a hefty fine amount ($5,000.00) under California law.

The Statute of Limitations (the amount of time you have to file a lawsuit) in California for elder or dependent adult abuse is generally two (2) years from the date of the injury, or four (4) years from the date of discovery if the abuse involves a financial wrongdoing.  If the abuse ends in a wrongful death claim, then you would have to file your lawsuit within one (1) year of the victim's passing.

Signs of elder abuse can run the gamut from anxiety, depression, malnutrition, lack of personal hygiene, and avoidance of certain caretakers at a facility, as examples.  The victim will oftentimes not be able (or willing) to report the abuse, and family and friends should be diligent in monitoring and observing whether or not certain conditions or signs of abuse exist.  Pay close attention to any complaints that a loved one raises in private, and take these accounts seriously.

Since everyone's case is unique to that individual and the specific circumstances, you should consult with a competent Elder Law attorney to determine your best course of action.  Our office has expertise in this area of the law, and we encourage you to reach out for a free consultation.  Attorney Felicia Yates has been practicing law for over 35 years in California and may be contacted at (702) 817-4661, via e-mail at attorneyfeliciayates@gmail.com, or via website at https://www.attyfeliciayates.com.