A Guide to California Elder Laws
California is currently the sixth youngest state in the United States, but Stanford University projects that it will soon begin aging faster than the rest of the country. According to estimates, California’s elderly population — defined as individuals over the age of 65 — will nearly double over the next two decades from 4.3 million in 2010 to 8.4 million in 2030. This growth will primarily be driven by the aging of the Baby Boom generation; as Baby Boomers age past 65, the share of older adults in California will increase from 11% in 2010 to 19% in 2030. With such a huge expansion of this population, issues affecting the elderly will assume a larger and more prominent position in our civic discourse.
In the legal world, one of the most pressing concerns with aging populations is elder abuse, whether that abuse takes the form of physical abuse, financial abuse, or emotional abuse. California has long been at the forefront of enacting aggressive legislation to combat abuse among the elderly, whom the state recognizes as a particularly vulnerable population. It does so through a combination of criminal and civil law, some of the most important of which are explained below.
Criminal Law: California Penal Code Section 368
On the criminal side, the primary law targeting elder abuse is California Penal Code Section 368 (PC 368). This is a wide-ranging law that encompasses physical, financial, and emotional forms of elder abuse and applies to individuals aged 65 or older. Criminal elder abuse in California is considered a “wobbler offense,” as it can be charged as either a felony or a misdemeanor, depending upon the severity of the crime and the discretion of the prosecutor.
Under PC 368, felony elder abuse is abuse that could result in great bodily harm or death and consists of:
- Willfully causing or permitting an elder to suffer unjustifiable physical pain or mental suffering
- Willfully inflicting unjustifiable physical pain or mental suffering on an elder
- As a caretaker of an elder, willfully causing or permitting the person or health of the elder to be injured
- As a caretaker, willfully causing the elder to be placed in a situation in which his or her person or health is endangered
The punishment for felony elder abuse is a fine of up to $6,000 and imprisonment for one to four years. However, if the abuse results in great bodily harm, the perpetrator will receive an additional three years if the victim is under 70 years old and five years if the victim is 70 years old or over. If the abuse results in the elder’s death, the perpetrator will receive an additional five years if the victim is under 70 years old and seven years if the victim is 70 years old or over.
Misdemeanor elder abuse consists of the same behaviors as felony elder abuse but is limited to abuse that is not likely to cause great bodily harm or death. The punishment for misdemeanor elder abuse is a fine of up to $1,000 and up to six months in jail. However, upon a second conviction for misdemeanor elder abuse, the fine rises to $2,000, and the prison term lengthens to up to one year.
PC 368 also applies to financial elder abuse, which it defines as theft, embezzlement, forgery, fraud, and identity theft. The punishment for financial elder abuse depends to a great degree upon the value of the assets involved. For example, for assets that are valued over $950, the penalty is a fine of $2,500-$10,000 and imprisonment for one to four years. For assets valued at $950 and below, the penalty is a fine of up to $1,000 and up to one year in jail.
In all cases of elder abuse covered under PC 368, the criminal court may also issue a restraining order against the perpetrator of the abuse, which may be valid for up to 10 years.
Civil Protection Created by Elder Abuse Laws in California
The Elder Abuse and Dependent Adult Civil Protection Act
On the civil side, the primary source of legal authority for pursuing elder abuse claims in California is the Elder Abuse and Dependent Adult Civil Protection Act (the “Act”). Enacted in 1982, the Act was one of the first comprehensive civil elder abuse statutes in the country. Its purpose was (and is) to mandate the reporting of alleged instances of elder abuse and to provide an appropriate civil remedy for elderly individuals who suffer abuse and victimization, as criminal prosecutions of these matters were rare at the time of enactment.
While there is a great deal of overlap between the actions covered by PC 368 and the Act, there are several significant differences. PC 368 is a criminal statute for which the punishment for defendants is jail time or fines, while the Act is a civil statute, wherein the remedy for plaintiffs is monetary damages. While PC 368 applies only to willful conduct, the Act is broader and applies to negligent conduct. The Act also creates a class of mandated reporters who are required by law to report suspected incidents of elder abuse to the appropriate authorities, thereby ensuring that such abuse is more likely to come to light.
Defining Abuse and Neglect
The Act applies to an extraordinarily broad range of behaviors that are commonly understood to constitute elder abuse, including physical elder abuse, neglect, and financial abuse. The Act defines physical elder abuse as:
- Assault
- Battery
- Assault with a deadly weapon or force likely to produce significant bodily injury
- Unreasonable physical constraint
- Prolonged or continual deprivation of food or water
- Sexual assault, including:
- Sexual battery
- Rape
- Rape in concert
- Spousal rape
- Incest
- Sodomy
- Oral copulation
- Sexual penetration
- Lewd or lascivious acts
- Use of physical or chemical restraints or psychotropic medication for the following reasons:
- Punishment,
- For a period beyond that which was ordered by a physician, or
- For any purpose not authorized by a physician
The Act defines neglect as “the negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in that position would exercise.” This can include many behaviors, such as:
- Failure to assist in personal hygiene
- Failure to provide food, clothing, or shelter
- Failure to provide appropriate medical care
- Failure to protect from health and safety hazards
- Failure to prevent malnutrition or dehydration
The Act also targets financial elder abuse, which, under the Act, occurs where the perpetrator:
- Takes, secrets, appropriates, obtains, or retains real or personal property for a wrongful use or with an intent to defraud (or both)
- Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property for a wrongful use or with an intent to defraud (or both)
- Takes, secrets, appropriates, obtains, or retains, or assists therein, real or personal property by undue influence (i.e., excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will, resulting in inequity)
Civil Actions Under the Elder Abuse and Dependent Adult Civil Protection Act
A hallmark feature of the Act is that it allows victims of elder abuse or neglect to sue the alleged perpetrators in civil court and provides for enhanced damages in certain cases. However, to obtain these enhanced damages in physical abuse and neglect cases, the plaintiff must prove that the defendant’s behavior was reckless, oppressive, fraudulent, or malicious by clear and convincing evidence — the highest standard of proof in the legal system. Where a plaintiff (or the plaintiff’s personal representative) can meet that standard, the plaintiff is entitled to the following damages:
- Reasonable attorney’s fees and costs
- Pre-death pain and suffering damages in actions brought by a deceased plaintiff’s personal representative
In actions for financial abuse under the Act, the plaintiff is not held to the higher clear and convincing evidence standard; instead, they must show merely by a preponderance of the evidence that the defendant is liable.
The Act also provides a mechanism through which plaintiffs may pursue private civil actions against nursing homes based on their employees’ acts. To do so under the Act, the plaintiff must show:
- The employer had advance knowledge of the employee’s unfitness and employed him or her with conscious disregard of the safety of others,
- The employer authorized or ratified the employee’s conduct, and
- The employee engaged in oppressive, fraudulent, or malicious conduct
In nursing home abuse cases, many plaintiffs find it preferable to pursue legal action against the nursing home itself rather than the individual employee who committed the acts due to the higher likelihood of the nursing home having the resources to compensate the plaintiff fully.
Mandatory Reporting
Another key feature of the Act is that it creates a class of mandatory reporters who must report suspected elder abuse to the appropriate authorities. Generally, mandatory reporters are individuals who, within their professional capacity or within the scope of their employment, observe incidents of elder abuse, know that elder abuse may be occurring, or are told by an elder that he or she has experienced elder abuse. The most common mandatory reporters include:
- Licensed staff of public and private care facilities
- Eldercare custodians
- Healthcare workers
- Clergy members
- Employees of county adult protective services agencies
- Law enforcement
The Act’s mandatory reporting requirements help ensure that all elder abuse incidents come to light and may be dealt with in a timely manner.
Intentional Torts are Covered by California Elder Law
While the Elder Abuse and Dependent Adult Civil Protection Act is a powerful tool to combat elder abuse and neglect, it may not be appropriate in all cases, as not all plaintiffs can prove their cases with clear and convincing evidence. In many cases, elder abuse is far more insidious, occurring in secret and without direct evidence. In those cases, traditional tort law may also provide a remedy.
An “intentional tort” is one that the perpetrator commits on purpose rather than as a result of negligence. In the context of elder abuse, the most common intentional torts are assault and battery, conversion (theft), and wrongful death. Rather than being required to plead these torts using the clear and convincing evidence standard, intentional torts are subject to the traditional preponderance of the evidence standard used in most civil claims. This is a lower standard that merely requires the plaintiff to show that it is more likely than not that the defendant is liable. A successful plaintiff in an intentional tort action is entitled to all damages available at law, including medical bills, pain and suffering, disfigurement, loss of enjoyment of life, and others.
California Civil Code Section 3345
In many cases, financial elder abuse involves more than merely stealing an elder’s money or personal belongings. Some perpetrators are far more creative and employ elaborate schemes to defraud the elderly by exploiting their diminished mental capacity. In these situations, California Civil Code Section 3345 allows a court to award enhanced damages to victims of financial elder abuse when that abuse involves unfair or deceptive practices or unfair methods of competition. To do so, the court will consider:
- Whether the defendant knew or should have known that his or her conduct was directed to a senior citizen,
- Whether the defendant’s conduct caused a senior citizen to suffer the loss of their residence, employment, source of income, payments under a retirement plan or government benefits program, or assets essential to the health or welfare of the senior citizen, and
- Whether the senior citizen was substantially more vulnerable to the defendant’s conduct than other members of the public due to the senior citizen’s age, poor health, or impaired understanding
If the court finds that one or more of the above factors was at play in a scheme to defraud an elderly person, the law allows the court to award up to three times the amount of damages it would have awarded otherwise.
Criminal Laws for Financial Elder Abuse
“Financial elder abuse” is a specific crime under Penal Code 368(d) and (e) of California law. The normal criminal offenses of theft, embezzlement, forgery, fraud, or identity theft constitute an additional crime of financial abuse of an elder or dependent adult under the law. The penalty varies based on whether the perpetrator is a caretaker of the elder or dependent adult and the value of the property that was stolen but generally includes both fines and jail time.
Types of Criminal Financial Elder Abuse
There are many types of theft crimes that could constitute financial elder abuse, but three of the most common are larceny, theft by false pretenses, and embezzlement.
Larceny
Larceny is the legal term for “theft.” Under California Penal Code 484, it can occur in a wide variety of situations, including where the perpetrator:
- Steals, takes, carries, leads, or drives away the personal property of another
- Fraudulently appropriates property that has been entrusted to them
- Defrauds any other person of money, labor, or property
- Obtains credit through false pretenses
If the value of the property stolen is $950 or less, the crime is considered to be petty theft, which is charged as a misdemeanor. If the value of the property stolen is over $950, the crime is considered to be grand theft and may be charged as either a misdemeanor or a felony.
Theft by False Pretenses
Under California Penal Code 532, theft by false pretenses occurs when the perpetrator knowingly defrauds another person of money, labor, or property by any false or fraudulent representation or pretense. This can include crimes as varied as consumer fraud, senior seminar scams, telemarketing scams, phishing schemes, and identity theft. Like larceny, it can be either a felony or a misdemeanor, depending upon whether the value of the property stolen was more or less than $950.
Embezzlement
Embezzlement is much broader than employees who steal from their employers. Under California Penal Code 503, it occurs when the perpetrator fraudulently appropriates property that has been entrusted to them. This includes attorneys-in-fact under powers of attorney, caregivers, bookkeepers, trustees, attorneys, agents, administrators, and any other person who holds someone else’s property in their control. The penalty for embezzlement also varies based on whether the value of the property stolen was more or less than $950.
Criminal Penalties for Financial Elder Abuse
Criminal penalties for financial elder abuse are governed by California Penal Code 368, which also governs the penalties for physical elder abuse. If the value of the property stolen is worth $950 or less, it may be charged as a misdemeanor. If the value of the property stolen is more than $950, it could be charged as either a misdemeanor or a felony (this is known as a “wobbler”).
If convicted of a misdemeanor, the penalties include:
- Up to one year in jail
- Up to a $1,000 fine
If convicted of a felony, the penalties include:
- Probation
- Up to four years in prison
- Up to a $10,000 fine
Many theft-related statutes (including those for larceny and embezzlement) allow courts to consider the fact that the victim was an elderly person an “aggravating factor” when imposing prison terms.
