What Is Considered Elder Abuse and What Isn’t?
Elders often depend on friends, family members, or professional caretakers to assist them with the activities of daily life, and such dependence often results in unpleasantness. Personalities may clash, resulting in arguments and harsh words. Understaffed nursing homes may be unable to respond to residents’ calls for assistance as soon as they are needed. Certain caretakers may not be the ideal housekeepers. There is a fine line between discomfort and elder abuse, but it is not always clear where that line actually is. The best way to determine whether a particular behavior legally qualifies as elder abuse is to speak with an elder abuse attorney.
Elder Abuse Defined
The California Elder Abuse and Dependent Adult Civil Protection Act (hereinafter referred to as “the Act”) provides for a civil cause of action for victims of elder abuse. It also contains some of the clearest and most comprehensive definitions of the various forms of elder abuse available. It focuses primarily on physical elder abuse and financial elder abuse but also contains provisions regarding neglect, nursing home abuse, and other forms of elder abuse.
Generally, the Act defines “abuse of an elder” as the following:
- Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering
- The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering
- Financial abuse
It is important to note that while the Act provides helpful definitions of what the State of California considers elder abuse, it is not an exhaustive list, nor is it the only source of law in this space. (Other parts of the law such as the California Insurance Code, for example, provide additional legal protections for seniors.) If you are unsure whether a particular type of behavior constitutes elder abuse, an elder abuse attorney can assist you.
Under the Act, physical abuse includes:
- Assault with a deadly weapon or force likely to produce significant bodily injury
- Unreasonable physical constraint
- Prolonged or continual deprivation of food or water
- Sexual assault (including sexual battery, rape, incest, sodomy, oral copulation, sexual penetration, and lewd or lascivious acts)
- Use of physical or chemical restraints for (a) punishment, (b) a period beyond that for which the medication was ordered by a physician, or (c) any purpose not authorized by a physician
Financial abuse occurs under the Act when a person or entity does any of the following:
- Takes, secretes, appropriates, obtains, or retains real or personal property of an elder for a wrongful use or with intent to defraud, or both
- Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder for a wrongful use or with intent to defraud, or both.
- Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder by undue influence
It’s important to note that anyone who assists another in financial elder abuse also commits abuse.
Elder Abuse Scenarios
Even with fairly straightforward definitions of what elder abuse and neglect are, it can still be unclear whether a specific scenario meets those definitions. Below are a few examples of scenarios that could (and could not) be considered elder abuse. For more information about any of the scenarios presented herein or for personalized guidance about your own situation, please contact an elder abuse attorney.
A Caretaker Steals Medication From Their Elderly Patient
Caretakers exercise a great degree of control over those in their care, including the possession and administration of their medications. The elderly often take many medications, some of which must be taken on specific days, at specific times of day, or multiple times a day. This can be difficult for anyone to keep track of, but it can be particularly troublesome for the elderly who often entrust their medications to their caretakers. However, a caretaker stealing medication or otherwise withholding medication from their patient and thereby causing injury to the patient likely would constitute elder abuse. The caretaker could also face criminal penalties under federal law, including theft, possession of a controlled substance, obtaining a controlled substance through fraud and deceit, and interference with medical services.
Unlicensed Caregivers and Unsafe Conditions
Professional elder caregivers — such as those employed in nursing homes or licensed home healthcare providers — typically are trained on maintaining safe and sanitary living conditions for those in their care and are required to do so as a condition of employment. But not all elder caregivers are professionals; it is not uncommon for adult children or second spouses or “friends” to care of elderly persons. This can lead to living conditions that fall far below those that would be expected from a professional, licensed caregiver.
Neglect under the Act means the negligent failure of a caretaker of an elder to exercise that degree of care that a reasonable person in a like position would exercise. This includes, but is not limited to:
- Failure to assist in personal hygiene or in the provision of food, clothing, or shelter
- Failure to provide medical care for physical and mental health needs
- Failure to protect from health and safety hazards
- Failure to prevent malnutrition or dehydration
The question of whether unsanitary conditions amount to abuse or neglect depends to a large extent on the degree of danger the living conditions pose to older people. Generally, conditions that lead or are likely to lead to physical injury or illness are more likely to be considered elder abuse. This could include, for example, insect and rodent infestations, fire hazards, improper food storage leading to food-borne illness, deferred maintenance leading to structural deficiencies, and lack of air conditioning or heat. Conditions that are indicative of general untidiness — such as piled-up dishes, grimy counters, unswept floors, etc. — are less likely to be considered elder abuse.
Caregiver for Elderly Man Cuts Him Off From His Friends and Does Not Allow Him to Speak to Anyone
Preventing the elderly from communicating with their family and friends is known as isolation and is a type of emotional elder abuse. While isolation itself can cause severe emotional distress to its victims, it can also make its victims more susceptible to physical abuse and undue influence. Isolation typically involves cutting the victim off from their friends and family, but the relationship between the parties is largely irrelevant. The Act defines isolation as follows:
- Intentionally preventing an elder from receiving his or her mail or telephone calls
- Telling a caller or prospective visitor that an elder is not present, does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false and made for the purpose of preventing the elder from having contact with family, friends, or concerned persons
- False imprisonment, as defined in the penal code
- Physical restraint of an elder to prevent the elder or dependent adult from meeting with visitors
Someone Manipulates an Elderly Person to Make Them Believe They Won Some Type of Lottery But Must First Pay a Fee to Claim Their Prize
The elderly are, unfortunately, too often the targets of fraud and scams, which may be considered forms of financial elder abuse under some circumstances. Scammers tend to focus on the elderly for several reasons. First, many older people suffer cognitive decline that prevents them from picking up on the red flags of scams as quickly as they might once have done. Second, the elderly tend to be less tech-savvy than younger generations, which puts them at a greater risk of internet-based financial elder abuse, such as phishing schemes, tech support scams, and catfishing and other online romance scams. Third, many scammers may believe — either rightly or wrongly — that older people are easier targets because they have a reputation for being more trusting of strangers than others.
According to the Act, financial elder abuse occurs where the perpetrator “takes, secretes, appropriates, obtains, or retains real or personal property of an elder for a wrongful use or with intent to defraud, or both.” A person “takes, secretes, appropriates, obtains, or retains” such property when the elder is deprived of the property right at issue. In other words, the abuse occurs once the elderly person has wrongfully been separated from their property.
The above scenario certainly looks like fraud, as a scammer is attempting to extract a payment for fictitious lottery winnings. However, it likely does not rise to the level of elder abuse, as the scammer has not actually taken anything from the elder. “Close calls” or “edge cases” like these can be complex, and you should contact an elder abuse attorney if you are experiencing one.
The Caretaker Responsible for an Elderly Patient Goes on Vacation for a Few Days and Doesn’t Notify Anyone That the Patient Is Home Alone
Many elderly people need significant assistance with the activities of daily life, including eating, drinking, bathing, dressing, transportation, using the bathroom, and taking medication. Traditionally, elders who needed this level of care entered long-term care facilities, but the rise of aging in place as a senior living option has led to a commensurate increase in home healthcare. While the vast majority of licensed home healthcare workers provide an appropriate level of care, there are bad apples in every profession.
A caretaker’s leaving an elderly patient home alone for a significant amount of time could be considered neglect, at the very least, and possibly abandonment. Neglect under the Act generally means the negligent failure of a caretaker of an elder to exercise that degree of care that a reasonable person in a like position would exercise. A reasonable caretaker in a like position would not leave their patient to their own devices for long, and certainly not for several days. Neglect also includes the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering, which would apply in this case.
Abandonment under the Act 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.” The question then becomes whether the caretaker, in this case, could be considered to have “deserted” or “willfully forsaken” their patient. Given that the caretaker left for vacation — not an unexpected emergency — and did not notify anyone that the patient was home alone, their actions likely would be considered elder abuse or neglect.
A Caretaker Is Chilly Toward a Patient, Frequently Snaps at Their Requests, and Hides the TV Remote
Elders who depend upon caretakers — especially home healthcare providers — are frequently at the mercy of those assigned to care for them. This often leads to personality clashes, particularly in cases where the caretaker is stressed, tired, overworked, or underpaid or where the patient is particularly ornery or demanding. Personality clashes, if left unchecked, can lead to more significant issues, including emotional elder abuse and worse.
Actions that cause mental suffering are included within the Act’s definition of elder abuse. Mental suffering in this context means “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.” This is a fairly high bar. The perpetrator must intend to cause mental suffering by their actions. While the scenario described in the example above is unpleasant for the elder, it likely does not constitute the mental suffering necessary to rise to the level of abuse.
Get Help From an Elder Abuse Attorney
If you are unsure whether your or someone else’s situation may be considered elder abuse, your best bet would be to contact an attorney to evaluate your case. For more information, please contact an elder abuse attorney at the Evans Law Firm, Inc., by using our online form or calling us at 415-441-8669 or toll-free at 1-888-50EVANS (888-503-8267).