- Ingrid Evans speaks on Protecting Yourself From Elder Financial Abuse with Deputy District Attorney Jackie Lacy on KFWB Radio.
Elder Physical Abuse
Thousands of the elderly people are abused each year by staff in nursing homes, by their own family members who care for them, or by reliable professionals. An elderly person can suffer from abuse no matter how well they function, and the abuse often occurs by those most trusted by the victim. Elder abuse may be passive (the caregiver lacks knowledge or skills to care for the victim properly) or active (the caregiver intentionally neglects the victim or withholds care). Perpetrators of elderly abuse may be spouses, children, professional caregivers, or even financial advisors.
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According to the National Institute for Justice, the elder population in 2030 is expected to be twice as large as in 2000, growing from 35 million to 72 million. As the population ages, the incidents of elder abuse will likely increase and many instances will go unreported. Elderly people have rights and there are laws in place to protect their well-being.
What is Physical Elder Abuse?
Abuse of elders takes many different forms, some involving intimidation or threats against the elderly, some involving neglect, and others involving financial scams and exploitation. In California, the general civil definition of elder abuse is:
Welfare and Institutions Code Section 15610.07
"Abuse of an elder or a dependent adult" means either of the following:
- (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
- (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
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Physical abuse
Physical elder abuse is physical force that results in bodily injury, pain, or impairment. Physical abuse not only includes assault, battery, and inappropriate restraint or over medicating or under medicating with drugs or prescriptions.
Under California’s civil laws, physical elder abuse is defined as the following.
Welfare and Institutions Code § 15610.63
"Physical abuse" means any of the following:
- (a) Assault, as defined in Section 240 of the Penal Code.
- (b) Battery, as defined in Section 242 of the Penal Code.
- (c) Assault with a deadly weapon or force likely to produce great bodily injury, as defined in Section 245 of the Penal Code.
- (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 Section 243.4 of the Penal Code.
- (2) Rape, as defined in Section 261 of the Penal Code.
- (3) Rape in concert, as described in Section 264.1 of the Penal Code.
- (4) Spousal rape, as defined in Section 262 of the Penal Code.
- (5) Incest, as defined in Section 285 of the Penal Code.
- (6) Sodomy, as defined in Section 286 of the Penal Code.
- (7) Oral copulation, as defined in Section 288a of the Penal Code.
- (8) Sexual penetration, as defined in Section 289 of the Penal Code.
- (9) Lewd or lascivious acts as defined in paragraph (2) of subdivision (b) of Section 288 of the Penal Code.
- (f) Use of a physical or chemical restraint or psychotropic medication under any of the following conditions:
- (1) For punishment.
- (2) For a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are given.
- (3) For any purpose not authorized by the physician and surgeon.
California Penal Code § 368. Crimes against elder or dependent adults
Emotional/psychological abuse
Emotional/psychological abuse is the intentional infliction of mental or emotional anguish by threat, humiliation, or other verbal or nonverbal conduct. In emotional or psychological senior abuse, people speak to or treat elderly persons in ways that cause emotional pain or distress.
Verbal forms of emotional/psychological elder abuse include:
- intimidation
- yelling
- threatening
- humiliation
- ridicule
Nonverbal forms of emotional/psychological elder abuse include:
- neglect
- ignoring
- abandonment
California Penal Code § 422. Criminal Threats; Bookout v. Nielsen (2007) 155 Cal. App. 4th 1131
Nonverbal forms of emotional/psychological elder abuse include:
- neglect
- ignoring
- abandonment
California Welf. & Inst.Code § 15610.57 defines elder neglect as:
- (a) "Neglect" 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.
- (2) The negligent failure of the person themselves to exercise that degree of care that a reasonable person in a like position would exercise.
- (b) Neglect includes, but is not limited to, all of the following:
- (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. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
- (3) Failure to protect from health and safety hazards.
- (4) Failure to prevent malnutrition or dehydration.
- (5) Failure of a person to provide the needs specified in paragraphs (1) to (4), inclusive, for themselves due to ignorance, illiteracy, incompetence, mental limitation, substance abuse, or poor health.
As used in the Elder Abuse and Dependent Adult Civil Protection Act, "neglect" refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations; the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. West's Ann. Cal.Welf. & Inst.Code §§ 15600 et seq.; Covenant Care, Inc. v. Superior Court, (2004) 32 Cal. 4th 771; Benun v. Superior Court (2004) 123 Cal. App. 4th 113
California Welf. & Inst.Code § 15610.05 defines abandonment as:
"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; Bookout v. Nielsen (2007) 155 Cal. App. 4th 1131
Sexual abuse
Sexual elder abuse is the non-consensual contact with an elderly person. Sexual abuse can involve physical sexual acts, but also activities such as showing pornography or forcing the senior to watch sexual conduct.
Neglect or abandonment by caregivers
Neglect is the failure of a caregiver to fulfill his or her care giving responsibilities to the senior. Neglect can be intentional or unintentional (passive), based on factors such as ignorance or denial that an elderly person/needs certain types of care or as much care as he or she does.
Medical or healthcare fraud and abuse
Health care providers, doctors, nurses, hospital personnel, and other professional care providers, can be responsible for elder physical abuse by any of the above ways or by not providing appropriate heathcare, over or under medicating for no medical reason, recommending or authorizing inappropriate remedies for sickness or medical conditions. Intrieri v. Superior Court (2004) 117 Cal. App. 4th 72.
Domestic Violence
Elders can be the victims of domestic violence by their spouses, or partners where the violence is used to exercise power and control, particularly when there is a large disparity with age and financial resources.
CONTACT
MAILING ADDRESS
INGRID M. EVANSTHE EVANS LAW FIRM
3053 Filmore Street
Suite 236
San Francisco, CA 94123
Phone: 888-503-8267
Fax: 888-891-4906
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