Perils Of Being A Caregiver In California
By: Roman P. Mosqueda, Esq.
It may start as a loan by the elder or dependent adult to the caregiver to buy out the latter’s contract with an agency, to be paid back by salary deduction.
Or it may be a loan to the caregiver to pay debts or for other purposes. Once the elder or dependent adult becomes grateful to the caregiver for services beyond the call of duty, such as driving, doing errands, and bringing to casinos, gifts in money or in kind may follow.
If the gifts are of insignificant amount or value, the next of kin of the elder or dependent adult (usually children, nephews or nieces, etc.) may not complain, may not call the police to complain of elder theft/fiduciary, under Section 368(e) of the California Penal Code.
If the gifts amount to thousands of dollars, whether in cash or checks, the next of kin or legal heirs may complain to the police that the so-called “gifts” or loans were taken from the elder or dependent person through theft, embezzlement, forgery, fraud, or identity theft.
Section 368 Of The CA
Penal Code On Elder Theft:
Section 368(a) of the Penal Code states the rationale for the crime as follows: “The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.”
Due to this built-in statutory protection extended to elders and dependent adults, the police and detectives may easily find probable cause to arrest caregivers under Section 368(e) of the Penal Code.
“Elder” is defined as “any person who is 65 years of age or older,” under Section 368(g). “Dependent adult” is defined as “any person 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 gifts, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age,” under Section 368(h).
And “caretaker” is defined as “any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult,” under Section 368(i).
The crime of theft from elder or dependent adult by a caretaker, in violation of Section 368(e) of the Penal Code, involves a “caretaker (who) committed theft, embezzlement, forgery, fraud, and identity theft with respect to the property and personal identifying information of an elder and dependent adult, said property, moneys, goods and services obtained having a value exceeding $400.00, and knew and reasonably should have known that said person was an elder and dependent adult.”
This crime of theft by caretaker/fiduciary exceeding $400 is a wobbler, that is, it is punishable as a misdemeanor by imprisonment in a county jail not exceeding one year, or as a felony by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding one thousand dollars ($1,000).
The District Attorney’s Office may file a felony Complaint with one Count of Section 368(e), Penal Code violation against a caregiver. The amount of bail per bail schedule of Los Angeles County is approximately $50,000.00 for one count of Section 368(e) elder theft/fiduciary, but the police may seek a deviation therefrom to increase bail to $200,000.00 or more, depending on the number of counts, the amount taken or received, the defendant being a flight risk, and a danger to society.
The defendant may also seek to reduce bail below the amount established by the bail schedule approved for Los Angeles County, pursuant to Section 1275 of the Penal Code.
Setting, Reducing Or Denying
Bail: Section 1275 of Penal Code:
Indeed, Section 1275(a) of the Penal Code states that: “In setting, reducing, or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration.
And “(i)n considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant,” per Section 1275(a), second paragraph.
Another arsenal of the police or prosecutor, aside from seeking increase of bail as a deviation from the amount established by the bail schedule, is to ask for a Penal Code Section 1275 hearing to determine whether the source of bail was feloniously obtained, through an unlawful act, transaction, or occurrence constituting a felony, under Section 1275.1(k) of the Penal Code.
The procedure for a Penal Code Section 1275 hearing is set forth in Section 1275.1 of the Penal Code, as follows:
“(a) Bail, pursuant to this chapter, shall not be accepted unless a judge or magistrate finds that no portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.
(b) A hold on the release of a defendant from custody shall only be ordered by a magistrate or judge if any of the following occurs:
(1) A peace officer, as defined in Section 830, files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.
(2) A prosecutor files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. A prosecutor shall have absolute civil immunity for executing a declaration pursuant to this paragraph.
(3) The magistrate or judge has probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.
(c) Once a magistrate or judge has determined that the probable cause exists, as provided in subdivision (b), a defendant bears the burden by a preponderance of the evidence to show that no part of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was obtained by felonious means. Once a defendant has met such burden, the magistrate or judge shall release the hold previously ordered and the defendant shall be released under the authorized amount of bail.
(d) The defendant and his or her attorney shall be provided with a copy of the declaration of probable cause filed under subdivision (b) no later than the date set forth in Section 825.
(e) Nothing in this section shall prohibit a defendant from obtaining a loan of money so long as the loan will be funded and repaid with funds not feloniously obtained.”
In one case handled by this Author, a Superior Court Judge in Los Angeles County placed a hold on the release of a defendant caregiver prior to holding a Section 1275 hearing, and even though no police officer or prosecutor had filed a sworn declaration of probable cause that the source of the bail was feloniously obtained, in violation of Section 1275.1(b) of the Penal Code.
Invalidity Of Gifts To
Of The Probate Code:
Gifts or donative transfers through any instrument (will, living trust, check, etc.) that are given by the elder or dependent adult to the caregiver are presumptively invalid, pursuant to Section 21350(a)(6) of the California Probate Code.
This statutory invalidity of gifts states as follows: “(a) Except as provided in Section 21351, no provision or provisions, of any instrument shall be valid to make any donative transfer to any of the following: (6) A care custodian of a dependent adult who is the transferor.”
Under the Probate Code, the term “dependent adult” includes persons who “(1) are older than age 64 and (2) would be dependent adults, within the meaning of Section 15610.23 (of the Welfare and Institutions Code), if they were between the ages of 18 and 64,” per Section 21350(c).
But the Section 21350 invalidity of donative transfers or gifts in any instrument does not apply to caregivers, if any of the following conditions are met, pursuant to Section 21351:
“(b) The instrument is reviewed by an independent attorney who (1) counsels the client (transferor) about the nature and consequences of the intended transfer, (2) attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and (3) signs and delivers to the transferor an original certificate in substantially the … (prescribed) form…;
(c) After full disclosure of the relationships of the persons involved, the instrument is approved pursuant to an order
under Article 10 (commencing with Section 2580) … (of the Probate Code);
(d) The court determines, upon clear and convincing evidence, but not based solely upon the testimony … (of the care custodian), that the transfer was not the product of fraud, menace, duress, or undue influence; or
(h) The transfer does not exceed the sum of three thousand dollars ($3,000). This subdivision (h) shall not apply if the total value of the property in the estate of the transferor does not exceed (one hundred thousand dollars)….”
Lastly, an action to establish the invalidity of any transfer described in Section 21350 can only be commenced, under Section 21356 as follows:
“(a) In case of a transfer by will, at any time after letters are first issued to a general representative and before an order for final distribution;
(b) In case of any transfer other than by will, within the later of three years after the transfer becomes irrevocable or three years from the date the person bringing the action discovers, or reasonably should have discovered, the facts material to the transfer.”
A probate action to establish the invalidity of any transfer to a caregiver is the proper remedy, not a criminal case of elder theft/fiduciary, when no actual theft is involved.
(The Author, Roman P. Mosqueda, has represented numerous caregivers in elder theft cases and in recovery of donative transfers through wills and living trusts to caregivers)