ELDER AND DEPENDENT ADULT ABUSE: REPORTING AND PUNISHMENT
By: Roman P. Mosqueda, Esq.
Seniors who are 65 years old or older and disabled, dependent adult from 18 to 64 years old may be subjected to elder abuse of different types: physical and/or psychological abuse, financial abuse, abandonment, isolation which includes false imprisonment, and neglect.
Elder abuse of any type may be reported to the California Attorney General’s Elder and Dependent Adult Abuse Reporting Hotline at 1-888-436-3600.
If the elder or dependent adult abuse is occurring in a licensed care facility, such as a nursing home or a board-and-care facility, the report may be made to the Ombudsman, who can be located by calling 1-800-231-4024.
Who Are Required To
Report Elder And Dependent
Adult Abuse:
Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependant adult, whether or not he or she receives compensation (pay), is required to report suspected elder or dependent adult abuse, as a mandated reporter, under California Welfare and Institutions Code Section 15630(a).
Other mandated reporters stated therein are: (1) administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, (2) any elder or dependent adult care custodian, (3) health practitioner (physician, nurse, etc.), (4) clergy member (except when known in penitential communication), (4) employee of a county adult protective services agency, and (5) local law enforcement agency (police).
Any such mandated reporter who has observed or has knowledge or has reasonable suspicion of elder or dependent adult abuse is obligated to report the known or suspected instance of abuse by telephone immediately or as soon as practically possible, and by written report sent within two working days to the local ombudsperson, adult protective services, or local law enforcement agency.
Misdemeanor For Failure
To Report:
Failure to report, or impeding or inhibiting a report of elder or dependent adult abuse is a misdemeanor offense, punishable by not more than six (6) months in the county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, under California Welfare And Institutions Code Section 15630(h).
Where the abuse results in death or great bodily injury, the failure to report, or impeding or inhibiting a report, of elder or dependent adult abuse is likewise a misdemeanor offense, punishable by not more than one year in a county jail, by a fine of not more than five thousand dollars ($5,000), or by both that fine and imprisonment, under aforesaid Section 15630(h).
And if a mandated reporter intentionally conceals his or her failure to report an incident known by him or her to be abuse or severe neglect, then the failure to report becomes a continuing offense until a law enforcement agency discovers the offense, under aforesaid Section 15630(h).
Types Of Elder Or Dependent
Adult Abuse And Punishments:
A. Physical Abuse:
The first type of elder or dependent adult abuse is physical abuse, which means any of the following acts enumerated in California Welfare and Institutions Code Section 15610.63:
(a) Assault, as defined in Penal Code Section 240,
(b) Battery, as defined in Penal Code Section 242,
(c) Assault with a deadly weapon or force likely to produce great bodily injury, as defined in Penal Code Section 245,
(d) Unreasonable physical constraint, or prolonged or continual deprivation of food or water,
(e) Sexual assault, that means any of the following: (1) sexual battery as defined in Penal Code Section 243.4, (2) Rape, as defined in Penal Code Section 261, (3) Rape in concert, as described in Penal Code Section 264.1, (4) Spousal rape, as defined in Penal Code Section 262, (5) Incest, as defined in Penal Code Section 285, (6) Sodomy, as defined in Penal Code Section 286, (7) Oral copulation, as defined in Penal Code Section 288a, (8) Sexual penetration, as defined in Penal Code Section 289, and (9) Lewd or lascivious acts, as defined in Penal Code Section 288(b)(2) which punishes as a felony a caretaker who commits any lewd or lascivious act upon a dependent adult by use of force, violence, duress, menace or fear of bodily harm, and
(f) Use of a physical or chemical restraint or psychotropic medication.
B. Psychological Abuse:
The second type of elder or dependent adult abuse is psychological abuse, which is behavior intended to cause mental suffering on the elder or dependent adult.
Mental suffering is defined by Welfare And Institutions Code Section 15610.53 as: “…fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult.”
Under Penal Code Section 368(b)(1), any person who willfully causes or permits any elder or dependent adult to suffer, or inflicts unjustifiable physical pain or mental suffering under circumstances or conditions likely to produce great bodily harm or death, is punishable by imprisonment in a county jail not exceeding one year, or by fine not exceeding $6,000 or both, or by imprisonment in state prison for two, three or four years.
If done under circumstances or conditions not likely to produce great bodily harm or death, the crime is a misdemeanor, under Penal Code Section 368(c).
C. Financial Abuse:
The third type of elder or dependent adult abuse is financial abuse, which occurs when a person or entity does any of the following: (1) Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud or both, or (2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both, under Welfare and Institutions Code Section 15610.30.
And under Section 15656(c) thereof, any person or caretaker of an elder or dependent adult who violates any law prescribing theft or embezzlement with respect to the property of the elder or dependent adult is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three or four years, when the money, labor, or real or personal property taken is of a value exceeding $400, or by a fine not exceeding $1,000; or by imprisonment in the county jail not exceeding one year or both, when the money, labor, or real or personal property taken is of a value not exceeding $400.
The same punishments for the same persons for the same thefts or embezzlements for the same amounts are stated in Penal Code Section 368(d) and (e).
False Imprisonment) And Neglect:
The fourth, fifth and sixth types of elder or dependent adult abuse are abandonment, isolation (which includes false imprisonment) and neglect. Under Welfare And Institutions Code Section 15610.05, abandonment means “the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.”
Under Welfare and Institutions Code Section 15610.43, isolation means any of the following: (1) Acts intentionally committed to prevent an elder or dependent adult from receiving his or her mail or telephone call, (2) Telling a caller or prospective visitor that an elder or dependent adult is not present or does not wish to talk where the statement is false and made to prevent contact with family, friends, or concerned persons, (3) False imprisonment as defined in Penal Code Section 236, and (4) Physical restraint of an elder or dependent adult to prevent the elder or defendant adult from meeting with visitors.
Under Penal Code Section 368(f), any 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 in the state prison for two, three, or four years.
Lastly, the sixth and last type of elder or dependent adult abuse is neglect, which, under Welfare And Institutions Code Section 15610.57, means either of the following: (1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise, and (2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.
Neglect includes: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter, (2) Failure to provide medical care for physical and mental health needs, (3) Failure to protect from health and safety hazards, (4) Failure to prevent malnutrition or dehydration, and (5) Failure of an elder or dependent adult to satisfy the needs stated in Nos. 1 to 4 for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.
Elder and dependent adult abuse, causing pain, suffering, or injury to the elders or dependent adults, as well as theft, embezzlement, forgery or fraud by a caretaker are criminalized to protect the elders and dependent adults who may be confused, mentally or physically impaired, or incompetent, as a matter of public policy of the California Legislature in Penal Code Section 368.
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(The Author, Roman P. Mosqueda, has personally represented both elders and caregivers as plaintiffs, as well as defendants. He is Chairperson of the Advisory Board of the Asian Pacific Counseling & Treatment Centers, which provides free mental health services to children, adults, and elders)