Elder Abuse

Elder abuse refers to the mistreatment of an older person, most often by some type of caregiver. We often think of abuse as a specific action that has occurred, such as physical or sexual violence or even verbal abuse. In elder abuse, both specific actions – physical abuse, sexual abuse, verbal abuse, for instance – as well as the lack of appropriate action can constitute elder abuse. Additional actions and activities can also constitute elder abuse, such as financial exploitation, which is explained below.

The World Health Organization defines elder abuse as a one-time or repeated act as well as a lack of appropriate action that occurs inside a relationship where there is a reasonable expectation of trust that results in harm, distress, or other abuse.

Elder abuse often occurs in situations where a person is taking care of an elderly person who needs some part-time or full-time assistance. This person can be unpaid, such as a spouse or family member, or paid, like an in-home caregiver or part-time nurse.

In the State of California, Penal Code Section 368 outlines crimes against elders, including but not limited to elder abuse. State law defines an elder refers as any person aged 65 years or older. If the alleged victim is younger than 65, then charges of elder abuse cannot stand up in court, though other civil or criminal charges may be filed against you.

Elder abuse can happen in a variety of ways and situations. These are the most common types of elder abuse, including indicators or warning signs that such action may be occurring:

- Physical abuse. This can include any physical harm caused to the elder person. The most reported physical manifestations of abuse include wounds, welts, bruises, pressure sores, head injuries, dental problems, and even broken bones. More subtle examples may be signs of restraint, like marks on wrists or legs, or broken eyeglasses.

- Sexual abuse. This is a specific subset of physical abuse, wherein the caretaker may be inappropriately touching the elder or forcing the elder to partake in sexual activity that the elder does not want or agree to. As in physical abuse, signs of sexual abuse can include bruises, scratches, bleeding, inexplicable infections, and other visible bodily signs, especially around the genital area or breasts.

- Emotional abuse. This can accompany other forms of elder abuse or stand on its own as abusive behavior. Authorities estimate that this type of abuse is the most under-reported form of elder abuse. Examples include:

• Abusing the elder verbally, such as with insults or demeaning language, typically on a repeated basis
• Isolating the elder from family or members of the elder’s social network,
• Failing to treat an elder with appropriate respect

Signs that this may be occurring can include the elder person acting uncharacteristically unresponsive or uncommunicative, suspicious or fearful, or retreating socially.

- Passive neglect. This refers to the caregiver’s unintentional failure to provide the elder person with the necessary care and treatment, including but not limited to food and hydration, clothing, shelter, medical care, etc. Signs that this may be occurring can include loss of weight, inappropriate clothing, etc.

- Intentional neglect. Unlike passive neglect, this refers to the intent of the caregiver to willfully deprive an elder person from receiving all the necessary care. Though could occur through intended physical, mental, or emotional abuse as well as by denying any of the following:

• Food and hydration
• Medication
• Shelter
• Clothing
• Therapeutic or medical device
• Physical assistance

- Financial exploitation. This type of abuse can refer simply to stealing money from the elder, or more advanced exploitations, such as using the elder in a way to obtain money or financial gain, for instance through insurance and healthcare claims, government benefit schemes, and more. This form of elder abuse can be harder to detect, as it is notoriously difficult to notice that it is occurring. Financial exploitation can include questionable withdrawals from bank accounts, missing money or belongings from the elder’s home environment, unpaid bills, and even the appearance of unnecessary goods or services. 

Importantly, any type of abuse – physical or otherwise – can result or manifest in persistent physical pain and soreness, nutrition and hydration issues, sleep problems, exacerbation of existing health conditions and increased susceptibility to additional illnesses, and increased risk for premature death. These situations mean the alleged victim and his or her loved ones can notice and these can even serve as evidence in a courtroom.

General criminal action against older people do not typically constitute elder abuse. For instance, a person mugging an elder or breaking into the home of an older person is generally treated and prosecuted as the appropriate criminal activity, not as elder abuse. Other crimes like financial exploitation are likely to be treated as embezzlement, fraud, stealing, or other money-related crimes.

Elder abuse instead is focused on crimes that specifically take advantage of the elderly person, based on his or her age, incumbent social or private benefits, or incapacity or inability to respond, whether physically or mentally, to the abusive action.

Importantly, elder abuse is specific to those aged 65 years or older. Though other people may be in the custody of another caregiver, those aged 18-64 years old are considered dependent adults, and as such the laws regarding abuse or general crime against them vary significantly from elder abuse.

Any person can abuse elders, though it is generally someone who already has an existing relationship with the elder. This may include a husband or wife, partner, adult child of the elder, another family member or close friend, a neighbor, or any person that the elder depends on for particular services, such as a healthcare provider like an in-home nurse or caretaker.

Statistics on reported cases of elder abuse indicate that abusers are most likely to be a spouse, partner, or adult child, and more likely to be male. Importantly, any caregiver or other person in a trusted relationship with the elder who has a history of mental illness or substance abuse is more likely to commit elder abuse.

Other risk factors for who may commit elder abuse include people who are currently experiencing major stress or financial hardships, are socially isolated, or may have had prior trouble with the police.

Any person who is of or over the age of 65 is a target for elder abuse. However, elder abuse occurs must often with elders who rely or depend upon a caregiver for specific or holistic care. Studies do indicate certain factors that make some people more likely to be a victim of elder abuse, including:

- Gender. Women are more likely than men to be victims of elder abuse.

- Lack of social support. Elders who have a limited social network, perhaps relying only on a caregiver, with no family or friends to speak with, are more susceptible to elder abuse.

- Dementia. Some research shows that nearly half of all Americans with dementia experience some form of abuse.

- Household experience. Research shows that an elder who lives with many other people, beyond a spouse or partner, makes the elder more likely to experience abuse, particularly financial exploitation. 

Elder abuse is illegal on its own, but it can also lead to serious health consequences for the victim. In this case, an accusation of elder abuse can be further exacerbated depending on the outcome of the elder’s alleged abuse. 

Some examples include: 

- Declining functional abilities

- Increasing sense of weakness, frailty, or helplessness

- Increasing dependency on others

- Increasing stress

- Declining psychological and mental health

- Increasing depression and dementia

- Presence of malnutrition, dehydration, bed sores, and wounds and infections

- Death 

If you believe you’ll be charged with elder abuse, or already have been, you have many options. Acting quickly can help you make the best of an intimidating situation. The first thing to remember is that you are not alone. Lawyers and various support groups can help you fight this case.

Here are some common ways to get started with accusations of elder abuse:

Speak with a lawyer. Elder abuse is a subset of family law and domestic violence, and it is an area that attorneys in your area specialize in. An experienced defense lawyer can help you determine your best actions in such a scenario, based on your specific situation. Consider consulting with several attorneys who specialize in elder abuse before hiring one for your case.

Keep a log. If you suspect you may be accused of elder abuse, keep a private record of what has occurred, if possible. This can include:

- The dates, times, and locations of specific types of abuse, with as many details as possible:

- The words you and the elder used, the actions performed, any lack of action, etc.

Your log can be simple: you can store this information in your password-protected smartphone, in a computer document, or in a private handwritten journal. Importantly, these notes should not be accessible by the caregiver who you suspect or know is causing the abuse.

Obtain materials that could be used as evidence. This may accompany a log or could serve as a log in its own right. This may include photos, medical records, employer testimony of your character and work performance, contracts indicating your responsibilities (these are applicable if you are a paid caregiver, or perhaps as a contracted family friend or relative), financial records, etc.

Talk with someone you trust. Going through a case like this can be emotional and frustrating. In addition to your experienced legal team, seek out a person who can support you. This could be a family member or close, trusted friend, or you may opt for a professional counselor or therapist who could offer additional resources.

Depending on the course of your charge, you may have to go to court to fight the accusations against you. When fighting elder abuse, there are many defense strategies your lawyer can take, but here are a few common ones:

- Lack of criminal intent. The prosecutor (the lawyer fighting on behalf of the alleged victim) must prove that you acted with willful intent when committing elder abuse. That means if the event in question was accidental in nature, then elder abuse was not committed, and the case is dismissed.

- Lack of custody. Part of elder abuse laws in California require that the alleged abuser must be responsible for or custodian to the elder person. If elder abuse is alleged on behalf of a family member or relative, it is possible that your defense lawyer can show that the elder person was not explicitly in your care. This may be a harder defense strategy if you are employed as an elder care provider for the specific individual.

- The alleged victim was not of age. California law requires that an elder be 65 years or older at the time of the alleged abuse in order for elder abuse to come into play. If the alleged victim was under 65 years at the time of the incident, charges of elder abuse must be dismissed. (That does mean that the alleged victim could bring other potential charges.)

- You did not know the age of the victim. Your defense lawyer may explore the possibility that you were unaware the victim was 65 years or older, which could void the charges of elder abuse. This could mean that your actions had a less serious effect or broke less severe laws.

- Self-defense. As in many crimes regarding physical abuse, the law provides justification for any physical defense of one’s self if you can believe, within reason, that the other party attempted harm or great bodily injury against you. This can be tricky to prove, as your defense lawyer now has the onus of responsibility, wherein it typically lies with the prosecutor.

If you are convicted (judged guilty) of elder abuse, California outlines specific punishments based on the age of the victim and severity of the abuse inflicted. Crimes can result in felons, though most are often considered misdemeanors.

Lawful punishment for elder abuse are as follows:

- If you are convicted of the willful infliction of unjustifiable mental suffering or physical pain on an elder or willfully permitting the endangerment of the elder, you are punishable by any combination of the following:

• Up to one-year imprisonment in a county jail
• A fine of up to $6,000
• Imprisonment in a state prison for two, three, or four years

- If you are convicted of willfully inflicting great bodily injury on an elder, an additional imprisonment term in a state prison follows:

• Three years imprisonment if the victim is 65-69 years old at time of instance
• Five years imprisonment if the victim is 70 years or older at time of instance

- In addition, if you are convicted of elder abuse that relates to the victim’s death, an additional imprisonment term in a state prison follows

• Five years imprisonment if the victim is 65-69 years old at time of instance
• Seven years imprisonment if the victim is 70 years or older at time of instance

In the case of subsequent violations, punishment can include fines up to $2,000, imprisonment in a county jail for up to one year, or a combination of both fine and imprisonment.