Under California elder abuse law, it is a crime to willfully cause an elder to suffer physical or mental abuse. And though this may sound clear enough, there are a wide variety of ways either of these types of abuse can take place.
Any individual who cares for an elderly person in a nursing home or assisted living facility is bound by Penal Code 368 PC to uphold high standards of living and prevention of any type of senior abuse. If your loved one has been harmed, the offender may have committed a crime.
The Basics of Penal Code 368 | California Elder Abuse Laws | 368 PC
Anyone who is aged 65 years or older is considered an elder under California elder abuse law. Under these laws, elder abuse can lead to charges in either civil or criminal court. Criminal law specifically focuses on violations of California’s Penal Code 368 PC.
Criminal abuse occurs when someone willfully allows or causes an elder to suffer. This can include the infliction of either mental suffering or physical pain on the elderly person. It is also against the law to allow or put someone in a situation where their health or well-being is in danger.
Unfortunately, there are many ways someone could harm your elderly friend or relative. They could be a caregiver who abandons or deserts the senior citizen. Someone could cause abuse by deliberately isolating the elder from getting any phone calls, guests, or other forms of communication and contact.
Physical abuse may involve injury, molestation, pain, sexual assault, unnecessary use of chemical restraints, or physical restraints. People may inflict mental suffering by causing confusion or fear through harassment, threats, or intimidating behavior. Elder abuse may also involve neglecting the elder’s food, shelter, clothing, or hygiene needs.
California elder abuse law also makes it illegal to wrongfully take the elder’s money or assets. If someone spends the elder’s money without the authority or permission to do so, they can also face disciplinary action. It is also against the law to remove the elder without the consent of the conservator.
California Elder Abuse Statute
Penal Code 368 PC includes all of the different definitions and punishments involving California elder abuse law. For example, the law states anyone who embezzled or stole the elder’s money is breaking the law if the property value is worth more than $950. If they are found guilty, they can face up to “one year county jail and $1,000 fine or state prison 2, 3 or 4 years.”
What is the penalty for elder abuse in California?
The entire list of violations is covered in section b, c, d and e of Penal Code 368 PC. Ultimately, the penalty involved depends on the level of crime committed by the individual.
Section b of the penal code involves inflicting mental suffering or physical pain on an elder. It is against the law for someone to cause or allow conditions likely to cause serious bodily harm or death. When someone does this, they can get a year in jail with a $6,000 fine or be sent to state prison for two to four years.
If the elder suffered from great bodily injury, then the offender can go to jail for three years in cases where the victim is younger than 70. When the victim is 70 years old or older, the suspect can get sent to prison for five years. Meanwhile, the death of the victim can lead to five to seven years in state prison depending on whether the victim is younger than 70 or not.
Section c covers the same kinds of injuries but includes the circumstances that aren’t likely to cause great bodily harm or death. In this case, the crime is classified as a misdemeanor.
Section d and e are both California financial elder abuse laws. In Section d, the law revolves around someone other than the caretaker stealing or embezzling the elder’s property without their knowledge. Section e involves the same kind of violation, but it focuses on caretakers only.
In Section d, the violator can end up in state jail for a year with a $1,000 fine or in state prison for two to four years. If the value of the property is less than $950, then the person can end up getting a $1,000 fine and a year spent in county jail. For caretakers, the potential punishments are the same.
Is elderly abuse a felony?
It depends on if the individual harms the individual physically, mentally or financially and the extent of the harm. For example, California financial elder abuse laws allow a caretaker to be charged with a misdemeanor or felony for embezzling or stealing from the elder.
How to Bring an Action Against Someone Suspected of California Elder Abuse
If you think your family member, friend, or neighbor is a victim of elder abuse or neglect, it is essential that you report it. Elder abuse reporting laws require you to disclose your suspicions to the proper authorities. Today, Assembly Bill 1690 and Assembly Bill 1499 require staff members at elder care facilities to be trained in how to report elder abuse.
Anyone who has full-time or intermittent care for an elder is considered a mandated reporter. If you see a situation that appears to involve abuse or neglect of some kind, you are legally required to report it. Otherwise, you would be violating the California elder abuse mandated reporting laws by looking the other way or keeping it to yourself.
California Adult Protective Services
But in addition to it being the law, reporting elder abuse in California is the right thing to do. If not reported, elder abuse will often continue and escalate to a stage, sometimes even ending with dire consequences. It is always better to err on the side of caution than potentially overlook a potential case of abuse.
Whenever you come across an elder who needs immediate medical care, you should immediately call 9-1-1. Afterward, you can take the next step in reporting elder abuse to California’s Adult Protective Services (APS).
Contacting Adult Protective Services in California
Each county where you need to report California elder abuse will have a different APS office and phone number. These hotlines will help you report any incidents of abuse or neglect and get the help your loved one needs.
- Alameda County: (866) 225-5277
- San Mateo County: (800) 675-8437
- Contra Costa County: (877) 839-4337
- Santa Clara County: (800) 414-2002
- Marin County: (415) 473-2774
- Santa Cruz County: (866) 580-4357
- Napa County: (888) 619-6913
- Solano County: (800) 850-0012
- San Francisco County: (800) 814-0009
- Sonoma County: (800) 667-0404
Report to the California Department of Social Services
Occasionally, people may notice California elder abuse involving in-home care support services. For these cases, you can reach the state’s Department of Social Services IHSS Fraud Hotline at (800) 822-6222. If you prefer, you can make this report anonymously via email or phone.
When the case involves Medi-Cal or Medicare, the Bureau of Medi-Cal Fraud & Elder Abuse Hotline will be the ones to contact. You can reach them at (800) 722-0432. They also offer the option to submit a complaint online.
Each county also has a California ombudsman who is responsible for helping people who are suffering from elder abuse. They provide education and assist in recognizing scenarios where there are signs of elder abuse or neglect.
What Happens Next: Fines & Penalties When They’re Convicted
After you report the case to the proper authorities, the case will be opened and investigated. Then, if found guilty, based on their crimes the culprit will be charged with committing a misdemeanor or a felony. If they are convicted, they may face multiple years in prison, as well as monetary fines.
The individual’s custodial sentence can range from a year in county jail to seven years in state prison. Penal Code 368 PC also includes fines ranging from $1,000 to $6,000. The exact fine or custodial sentence depends on how the elder was harmed and the extent of the injury.
California elder abuse law also includes a timeframe in which you can file in civil court. With the California elder abuse statute of limitations, you have two years to file in court. There is an exception to this rule in cases of physical or mental incapacitation and when injuries don’t manifest until after the fact.
Keep in mind, financial crimes have a different statute of limitations in California. Once the financial abuse was discovered or ought to have been discovered, you have four years to file in civil court. If you file before the statute of limitations is up, you may be able to collect damages if the other party is convicted.
Protect Your Loved Ones From Abuse
By reporting potential abuse or neglect, you could save someone’s life. California elder abuse law and Penal Code 368 PC are designed to protect loved ones from physical, mental, or financial harm. When you report potential abuse, you are giving an aging adult a better chance of getting out of their negative situation.
If you or your loved one are experiencing elder abuse, help is available. Please call our offices at (858) 240-9340 or complete the form on this page for a free evaluation.
Elder Abuse Laws | Criminal Guide
| Code Section | Description | Penalty |
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| PENAL CODE § 187 (Murder) |
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| PENAL CODE § 261 (Rape) |
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| PENAL CODE § 288(a);(b)(2);(c)(2) (Lewd or Lascivious Acts) |
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| PENAL CODE § 289 (Sexual Penetration) |
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| PENAL CODE § 368(b)(1)(2)(3) (Causes or permits infliction of physical pain or mental suffering on elder or dependent adult under circumstances or conditions likely to produce great bodily harm or death) |
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| PENAL CODE § 368(c) (Causes or permits infliction of physical pain or mental suffering on elder or dependent adult under circumstances or conditions not likely to produce great bodily harm or death) |
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| PENAL CODE § 368(d) (Violates provision of law proscribing theft or embezzlement - not a caretaker) |
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| PENAL CODE § 368(e) (Violates provision of law proscribing theft or embezzlement - caretaker) |
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| PENAL CODE § 422 (Elements of Offense - Willfully threatens to commit a crime which will result in death or great bodily injury) |
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| HEALTH & SAFETY CODE § 1290(c) (Violations, Penalties Relating to Operation or Maintenance of Long-Term Healthcare Facilities) |
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| WELFARE & INSTITUTIONS CODE § 15630 (Mandated Reporters of Abuse) |
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Penal Code 368 PC
Penal Code – PEN
PART 1. OF CRIMES AND PUNISHMENTS [25 – 680]
( Part 1 enacted 1872. )
TITLE 9. OF CRIMES AGAINST THE PERSON INVOLVING SEXUAL ASSAULT, AND CRIMES AGAINST PUBLIC DECENCY AND GOOD MORALS [261 – 368.5]
( Heading of Title 9 amended by Stats. 1982, Ch. 1111, Sec. 2. )
CHAPTER 13. Crimes Against Elders, Dependent Adults, and Persons with Disabilities [368 – 368.7]
( Chapter 13 heading added by Stats. 2010, Ch. 617, Sec. 2. )
368.
(a) The Legislature finds and declares that elders, adults whose physical or mental disabilities or other limitations restrict their ability to carry out normal activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.
(b) (1) 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.
(2) If, in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If, in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those 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 may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(d) A person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable as follows:
(1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).
(2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).
(e) A caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows:
(1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).
(2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).
(f) A person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(g) As used in this section, “elder” means a person who is 65 years of age or older.
(h) As used in this section, “dependent adult” means a person, regardless of whether the person lives independently, who is between the ages of 18 and 64, who has physical or mental limitations which 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. “Dependent adult” includes a person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(i) As used in this section, “caretaker” means a person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both this section and Section 187 or 12022.7 or any other provision of law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for a single offense, nor shall a person receive an additional term of imprisonment under both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for a single offense.
(k) In any case in which a person is convicted of violating these provisions, the court may require him or her to receive appropriate counseling as a condition of probation. A defendant ordered to be placed in a counseling program shall be responsible for paying the expense of his or her participation in the counseling program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of his or her inability to pay.
(l) Upon conviction for a violation of subdivision (b), (c), (d), (e), or (f), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.
(Amended by Stats. 2018, Ch. 70, Sec. 3. (AB 1934) Effective January 1, 2019.)
