California PEN 368 protects individuals 65 or older from neglect or abuse. The statute does this because people in this age bracket depend on caregivers for most of their needs. Unfortunately, some caregivers exploit or abuse these elderly people emotionally, physically, and financially. The law also allows abuse victims to obtain restraining orders against their abuser but, at the same time, protects the accused from false allegations and convictions. We at the Restraining Order Law Firm understand PEN 368 and are ready to defend you against the charges or help you obtain a protective order against an abuser in Los Angeles.

A Quick Glance at Elder Abuse

As per PEN 368, elder abuse occurs when a person inflicts emotional, physical, or sexual harm on a senior citizen or an individual 65 or older. The offense happens when an individual neglects or commits financial fraud against a senior citizen. In these cases, defendants are normally caregivers in nursing homes or relatives caring for senior citizens.

Older adults rarely notice when they are undergoing abuse, and those who do are too embarrassed to report it. Indications that someone is experiencing abuse include:

  • Lack of necessities like food, housing, and clothing.
  • Inexplicable physical injuries.
  • Untreated and deteriorating illnesses.
  • Residing in unhygienic conditions.
  • Medical mismanagement signs.
  • Insect infestation.
  • Withdrawal.
  • Malnourishment and dehydration.
  • Depression.

Elder Abuse Types

Under California’s legal statutes, elder abuse takes many forms, as follows:

Physical Abuse

Otherwise called elder maltreatment, senior citizen physical abuse consists of causing physical injuries, abandonment, sexual assault, abduction, and neglect of care. The perpetrators of physical abuse are normally caregivers, medical professionals like doctors, and sometimes relatives. If you are one of these individuals, you will face a PEN 368 violation charge for physical abuse when you engage in any of the following conduct:

  • Scratch a senior citizen inflicting them with injuries or pain.
  • Threaten a senior citizen with a gun or weapon.
  • Inaptly and needlessly restrain a senior citizen in your care.
  • Push, slap, or hit an older adult, causing bruising, fractured bones, or joint dislocation.
  • Causing burns that result in burn sores and burn marks that you cannot explain.

Nevertheless, even if an elder under your care shows signs of physical abuse or maltreatment, that does not mean you are guilty of a PEN 368 violation. The symptoms can be due to health conditions or factors other than physical abuse. Therefore, when you face the allegations or charges in Los Angeles, you should contact the Restraining Order Law Firm to evaluate your case and prove to the court that the injuries are due to other reasons besides elder maltreatment.

Also, our attorneys can help you if you have experienced signs of physical abuse. We will use the signs to demonstrate that you are being abused and convince the judge to issue a protective order to keep the abuser away.

Emotional and Psychological Abuse

Any behavior that you engage in that inflicts emotional or mental pain on a person 65 or older amounts to a PEN 368 violation. Emotional pain can stem from conduct like throwing abusive words at a senior citizen or denting their self-confidence. Repeated physical abuse can also result in psychological and emotional anguish. You risk elder abuse charges when a senior citizen in your custody manifests these signs:

  • Unexplainable behavior change.
  • Muttering and looking troubled.
  • Having problems sleeping.
  • Withdrawal and unexplained fear.
  • Depression.
  • Disinterest in hobbies or activities they loved doing.

These signs can stem from other factors other than emotional and psychological abuse. It is up to your defense attorney to demonstrate this to the court to prevent a conviction or secure a charge reduction.

Again, if you are seeking a protective order relying on these signs, you will need legal representation to convince the judge that the signs are due to emotional abuse and not other factors.

Senior Citizen Neglect

When you neglect to provide for the basic needs of a senior citizen as a caregiver, your behavior is deemed elder neglect under PEN 368 and can result in criminal charges. You will face charges when you withhold food, clothing, and medication or leave an elder at risk of harm or death. When someone over 65 is in your custody, the law expects you to provide for their basic needs and not abandon them for long hours.

Sadly, the fear of being stereotyped by the community or mental incapacitation makes it difficult for older people to recognize or report neglect. As a result, the elder does not obtain protection from the abuse through restraining orders, allowing the abuser to continue their behavior. Nevertheless, the prosecutor proves neglect by identifying the following signs in the case:

  • Unhygienic living conditions.
  • Insect infestation.
  • Missing tools like walkers.
  • Bedsores.
  • Depression and suicide attempts.

As a caregiver, you can fail to notice these signs because you are unaware if your conduct amounts to elder neglect but still face charges for a PEN 368 violation. You will need knowledgeable legal counsel to defend against the charges by arguing that you did not notice your conduct was abusive.

Also, if you notice a loved one with these signs, you should report it to the authorities or reach out to a restraining order attorney to help the elderly person.

Sexual Abuse or Assault

You commit sexual abuse against a senior citizen when you forcibly engage in sexual intercourse or behavior with them. Also, compelling an elder to remove their clothes in your company or watch pornography amounts to sexual abuse. The conduct causes physical and mental trauma, explaining why you risk elder abuse charges and a possible conviction.

Sexual abuse is prevalent in homes for the elderly, where senior citizens are secluded from their families. Besides, the cases are common because some victims are mentally incapacitated to report the claims to the authorities. Based on the nature of the injuries, sexual abuse signs can manifest mentally or physically. Signs of elderly sexual assault are:

  • Torn innerwear.
  • Bloody underwear.
  • Depression.
  • Increased cases of sexually spread infections that cannot be explained.
  • Problems sitting or moving.
  • Withdrawal.
  • Bruises in intimate parts.
  • Anxiety and looking frightened by a particular caregiver or relative.

Sexual assault on a senior citizen is severely punished. Therefore, ensure you find experienced legal representation whenever you face allegations. Besides, if you are the party that has been abused, you should pursue legal action against the abuser with the help of an attorney.

Financial Abuse

California PEN 368(d) defines financial abuse of an elder as the theft or misappropriation of funds or properties belonging to an elder. Also called senior fraud, financial abuse is commonly committed by relatives or caregivers of the elderly. Even when they are aware of the financial abuse, these elders cannot report it because they are secluded from law enforcement authorities, making it challenging to obtain a protective order.

One way senior fraud is committed is through telemarketing fraud, where you convince a senior citizen to donate funds to a charity that does not exist. Another way is credit card indemnification fraud, which involves defrauding an elder using false credit card details.

Senior fraud can also be accomplished by trapping a senior citizen with a mortgage they cannot afford to repay. Again, taking funds from an elder to repair their home but failing to deliver the services counts as senior fraud.

Lastly, falsifying documents to obtain power of attorney on property belonging to an elder amounts to financial abuse and will result in elder abuse charges.

The prosecutor will secure a conviction for a PEN 368(d) violation if they demonstrate that you, a senior citizen’s caregiver, participated in financial fraud, embezzlement, or forgery. Additionally, the property or funds belonged to a party over 65 years old.

If these facts of the case are not proven beyond moral certainty, the court will not find you guilty of senior fraud. However, when found guilty, the court will impose penalties depending on the property's value, like theft crimes. 

Elder Abuse Elements

Not every action that an individual takes that harms an elder amounts to a PEN 368 violation. For one to be convicted of the offense, specific facts about the breach should be proven. These elements depend on whether the party has been charged with a misdemeanor or felony. For a misdemeanor PC 368 violation, the elements the prosecutor must prove are:

  • The perpetrator deliberately, knowingly, or with criminal negligence subjected a senior citizen to unjustifiable pain. Misdemeanor cases emphasize the conduct that hurt or endangered the alleged victim’s health.
  • The abuser was the victim’s caregiver, relative, or doctor and owed them a duty of care.
  • The perpetrator’s behavior was substantial in causing their injuries.
  • The abuser knew or had reason to believe their behavior would cause harm.
  • The perpetrator knew or ought to have known the alleged victim was 65 or more.

For a felony charge, the prosecutor must demonstrate the following elements:

  • The perpetrator was aware or should have known the victim was a senior citizen 65 or older.
  • The abuser willfully or with criminal negligence or intent caused or facilitated an elder to suffer unjustifiable pain. The prosecutor charges the offense as a felony if the abuser’s actions pose the risk of great bodily injury or death to the victim.
  • The accused person’s behavior directly led to the harm suffered by the victim.
  • The accused knew or should have been aware their conduct would result in injuries to the victim.

The term willfully means the person’s conduct was intentional or deliberate, even when they did not intend for the consequences. Another way elder abuse is accomplished is through criminal negligence, meaning action beyond the errors of ordinary judgment or recklessness. It means behaving in a fashion that shows a lack of respect for human life or ignorance of the obvious risks the conduct poses to others. The prosecutor must demonstrate that a sober person could not have acted as the abuser did, causing an elderly person unjustifiable pain.

For instance, when you forget to give the ailing grandfather one of his many medications, your action does not amount to criminal negligence. Nevertheless, when you neglect to provide them with food while they are in your custody, your conduct constitutes a PEN 368 violation.

A conviction does not come easily because of the criminal negligence element in the case. The prosecutor must demonstrate that you have a legal obligation to the victim. Any other person who is aware of criminal negligence but has no legal duty towards the elder cannot be charged with elder abuse. These individuals are morally obligated to report criminal negligence, but the only legally responsible party is the caregiver.

Another term you should understand is unjustifiable pain. It refers to unnecessary suffering, mental or physical, inflicted on an elder through punching, scratching, kicking, or grabbing. It is worth understanding that, per California domestic law, the elder does not need to sustain bodily harm. The prosecutor only shows the court that you put the victim in a situation likely to produce immense but not trivial damage.

Elder Abuse Penalties

A PEN 368 violation is charged as a wobbler. Depending on the specific case’s facts, the prosecutor can file the offense as a felony or misdemeanor. Usually, the prosecutor prefers felony charges when you cause an elder severe physical or psychological pain and misdemeanor charges when the harm is less intense. Again, the prosecutor takes into account your criminal record.

When the charge leveled against you is a misdemeanor, a conviction will lead to the following punishment:

  • Misdemeanor or informal probation.
  • Twelve months of jail incarceration.
  • Court-imposed monetary fines of no more than $6,000 for a first-time offender. The fine is increased to $10,000 if you are a repeat offender.
  • Mandatory counseling program.

For a felony conviction, the penalties are:

  • Prison incarceration of no more than 48 months.
  • Court fines of no more than $10,000.
  • Supervised felony or formal probation.
  • Victim restitution.
  • Counseling program tailored for elder abuse defendants.

It will help to know that when you inflict great bodily injury or harm on the elder, you will face a sentence enhancement of seven years on top of the baseline prison sentence.

Contesting PEN 368 Violation Charges

Many cases of falsely blaming individuals for PEN 368 violations are common in Los Angeles. Usually, the accuser, an elder, could suffer from memory loss or delusion, believing a caregiver has abused them when they have not. Other senior citizens suffer from health conditions with symptoms that mimic those of elder maltreatment or neglect.

Besides, the law requires police and social workers to report cases of alleged elder abuse for which they face charges. Therefore, these individuals sometimes report abuse cases even when they are unsure of the facts or misunderstand the circumstances, resulting in false accusations and convictions.

Doctors and health care professionals worsen the situation when they fail to differentiate illness symptoms from elder abuse, resulting in false charges. Luckily, several legal defenses exist that defendants can use to contest criminal charges against them if they believe they are falsely accused. Some of the viable defenses we will apply in your case are:

  • False Allegations or Accusations

When a person is falsely suspected of engaging in a PEN 368 violation, submitting evidence to prove that the accuser was wrong or intentionally lied out of malice can prevent a conviction. An attorney will help demonstrate that the accusations are untrue by presenting proof that contradicts the allegations, like an email or text, to cast doubt in the jurors' minds about the accuser’s credibility.

Alternatively, a seasoned attorney can gather people who know you and your character to give testimony about your behavior that contradicts the accuser’s allegations.

Also, if the accuser seems suspicious, your attorney should investigate their history, background, and inconsistencies in their conduct to uncover their ill motives for falsely accusing you of elder abuse.

Lastly, your legal representation will use medical records and reports to show that the abuse signs are due to a medical condition or something other than what the accuser alleges. It will help to know that the burden of proof is on the prosecutor, not the defense team. It is up to them to prove the facts of the case beyond moral certainty. Therefore, even if you cannot prove false allegations, all you need to do is make the court doubt the prosecutor’s evidence.

  • The Injuries Were Accidental

You can argue that the injuries inflicted on the elderly were accidental. You can claim that you tripped and fell on the elderly party, causing physical harm. Nevertheless, the defense will not work in criminal negligence cases, even if your actions were unintentional.

  • Insufficient Proof

A conviction for a PEN 368 violation only happens when the prosecutor demonstrates that you deliberately inflicted bodily, emotional, or psychological pain on a senior citizen. The harm must be directly related to your actions or conduct. If the DA cannot back up the allegations with sufficient proof to show beyond moral certainty that you committed the alleged crime, you cannot be found guilty. We will assert that there is a reasonable doubt that you committed the offense.

When using this defense strategy, an experienced attorney will bring in expert witnesses to attest that the signs of elder abuse are due to age or a medical condition, not abuse. If the charges are for neglecting a senior citizen, you can provide evidence showing how much you have provided for and cared for the alleged victim. You can furnish the court with medical receipts to show you have done everything possible to provide for the senior citizen’s welfare.

  • The Alleged Abuse Was an Isolated Incident

Even if the evidence against you is overwhelming and you clearly committed a PEN 368 violation, your defense team can argue that even though the abuse occurred, it was an isolated case stemming from extenuating circumstances. Caring for an older adult can be overwhelming and stressful, particularly if the elder is delusional, physically, or mentally incapacitated. Therefore, you can claim that stress led to the isolated incident triggered by emotions. That way, you will obtain sympathy from the judge, resulting in a lenient sentence, although the charges will not be dropped.

Find a Knowledgeable Domestic Violence Attorney Near Me

Elder abuse statutes are complex, and a violation can result in severe penalties if you are found guilty. A charge for the offense does not necessarily make you guilty. You have a right to defend yourself and understand the laws you are accused of violating. Also, if you are a victim of a crime or know a person going through elder abuse, you need legal help. At the Restraining Order Law Firm, we have competent attorneys ready to educate you on your rights, offer legal representation for a favorable outcome, and help you navigate the court processes. Contact us today at 424-600-7691 for a zero-obligation consultation in Los Angeles.