Personal Injury claims from elderly abuse and neglect.
Abuse of the elderly can take several forms. Physical violence, such as when a nursing home employee slaps or moves a resident, is one example. It may also be a matter of money, such as when an unscrupulous stockbroker tricks an elderly client into a risky investment. In certain situations, such as excessive emotional abuse or a caregiver's repeated inability to meet an elder's basic physical needs, it can be subtle and difficult to identify.
California's elder abuse laws protect seniors from the damage of any manner and provide for legal redress in the event of abuse. That said, let's talk about California Personal Injury to the Elderly, as they will be handled by prescreened Los Angeles Elder Neglect Lawyer.
As the number of people over the age of 65 continues to increase, these concerns have been sent into the spotlight in recent years. This issue, however, is not new; only the level of attention given to it and the urgency with which it must be addressed has changed. Although there is still much work to be done to ensure that none of our senior citizens are again subjected to violence, several states have now implemented robust regulatory mechanisms to identify and prosecute perpetrators.
Federal Legislation on Elder Violence
The Elder Justice Act was the first federal law passed to allow a particular source of federal funds to combat elder abuse, neglect, and exploitation. The Act was part of the Patient Protection and Affordable Care Act (PPACA) on March 23, 2010.
Congress passed the Older Americans Act in 1965 in response to lawmakers' fears about a shortage of community social care for the elderly. The Older Americans Act was reauthorized in 2016, with provisions to protect disabled elders by improving the Long-Term Care Ombudsman program and subsequent elder abuse screening and prevention efforts.
If you or your elderly loved one has suffered elderly abuse, then you might be able to file claims with a Los Angeles Elder Neglect Lawyer. An experienced prescreened Elder Care Abuse Attorney will know their way around the law, and can help you collect evidence, file the right paperwork, and represent you in court.
California's Regulations on Elder Violence
California was one of the first states in the country to pass robust anti-abuse laws. The Elder Abuse and Dependent Adult Civil Rights Act of 1982 (the "Act") creates a civil cause of action for a wide variety of actions generally known as "elder abuse," such as physical abuse, negligence, and financial abuse, and requires certain persons to report alleged cases of elder abuse to the appropriate authorities. In the intervening years, numerous amendments have broadened its reach. The Legislature reported three general reasons for enacting the law in its legislative findings:
Adults who are elderly, infirm, or dependent are a vulnerable group.
Criminal prosecutions against those who exploit these people are uncommon, and
Owing to difficulties with evidence, court delays, and a lack of incentives to prosecute these cases, civil actions for elder abuse are also uncommon.
As a result, the Act's primary purpose was to "foster and encourage community programs for the economic, social, and personal wellbeing of its residents in order to protect those mentioned in this section."
A California personal injury lawyer can calculate the compensation you'll get based on the financial and emotional damages you and your loved ones suffer. This ensures that the liable party is held financially responsible for the abuse and neglect.
The State of California's on Physical Elder Abuse
Physical Abuse as Described by California's Elder Abuse Laws
Although the word "Physical Elder Abuse" is frequently used as a catch-all for any action that causes physical distress to an elderly person, the Act describes it very clearly. Physical violence, according to the Act, includes all of the following:
Attack/assault on an individual
Assault with a lethal weapon or force likely to inflict serious bodily harm
Physical restriction that is unnecessary
Deprivation of food or water for a prolonged period of time
Sexual Assault
Battery
Rape
Rape in a public place
Spousal rape
Infidelity
Sodomy
Nonconsensual Kissing
Penetration of the sexual organs
Acts that are lewd or lascivious
Physical elder abuse is distinct from negligence, which is described as "the irresponsible failure of any individual having the care or custody of an elder or dependent adult to exercise the degree of care that a responsible person in that role would exercise."
Neglect can manifest itself in a variety of ways, including the following:
Failure to assist in the preservation of personal hygiene
Assistance in the provision of food, clothes, or shelter is not offered.
Inability to provide medical treatment
Failure to safeguard against health and safety threats
Failure to avoid dehydration and malnutrition
There is also a blurring of the lines between what constitutes violence and what constitutes negligence, which can cause confusion. Please contact a California Elder Care Abuse Attorney if you have any concerns about the distinction between elder abuse and elder neglect.
A prescreened Los Angeles Elder Neglect Lawyer can help you build a solid claim and get compensation to get you (or your elderly loved one) back on your feet. If the abuse or neglect happened in a nursing home, then you should contact a California nursing home malpractice attorney who has the experience and skill to handle the complex issues associated with these cases.
Financial Abuse of the Elderly
Financial abuse of the elderly and dependent adults is a long-standing and increasing issue in this state. California now has over 5 million elders (those aged 65 and up), a figure that is projected to steadily increase as the population ages.
With the population aging, it's more important than ever to understand the laws that protect the elderly and dependent adults. The California Legislature passed the Elder Abuse and Dependent Adult Security Act in response to the fact that "elders and dependent adults may be subjected to abuse, neglect, or abandonment" and that "this state has a duty to protect such individuals." [California Welf. & Insurance Code 15600(a)]
One of the Act's aims is to "pay particular attention to the needs and concerns of elderly people, acknowledging that they make up a large and recognizable segment of the population and are more vulnerable to violence, neglect, and abandonment."
The Legislature established a large and effective law with this Act, which "allow[s] concerned parties to hire lawyers to take up the case of neglected elderly persons and dependent adults." [15600(j) of the Welf. & Ins. Code.] Elderly and dependent adults are not only vulnerable to physical violence and neglect, but they are often subjected to financial assault.
What is the Financial Abuse of the Elderly?
When an individual takes, secretes, appropriates, obtains, or preserves the real or personal property of an elder or dependent adult for wrongful use or with the intent to defraud, or both, it is called financial exploitation of an elder or dependent adult. 15610.30(a)(1) (Welf. & Ins. Code.) If an individual "assists" another in the above, he or she is equally liable for financial elder abuse. 15610.30(a)(2) (Welf. & Ins. Code).
The first two elements (taking, concealing, appropriating, receiving, or holding real or personal property) are clear. A caregiver who forges a check from the elder's account is a common example.
The third component is also simple to identify. Any person living in California who is 65 years old or older is considered a "elder." 15610.27 (Welf. & Ins. Code.) This is any person living in California between the ages of 18 and 64 has physical or mental limitations that limit his or her ability to do normal activities to protect their rights. This includes those who have physical or developmental disabilities or whose physical or mental abilities have deteriorated with age. Regardless of whether the person lives independently, is considered a "dependent adult." 15610.23(a) (Welf. & Ins. Code).
Either of two approaches for demonstrating wrongful use and/or intent to defraud may be used. By meeting the standard elements of a fraud cause of action and pleading fraud with particularity, a plaintiff may seek to prove that the defendant behaved "with intent to defraud." It's a lot easier to prove "wrongful use." A plaintiff can establish that a defendant took property "for a wrongful use" by proving that the defendant knew or should have known that his or her actions were likely to injure the elder or dependent adult.
If a person takes, hides, appropriates, obtains, or keeps real or personal property of an elder or dependent adult, or assists in doing so, he or she is guilty of financial elder abuse. Excessive persuasion that overcomes a person's free will to cause them to act or refrain from acting, resulting in inequity, is known as "undue control." 15610.70(a) (Welf. & Ins. Code).
When deciding if anyone has used undue power, a variety of considerations are taken into consideration. The victim's vulnerability, as well as whether the influencer was aware of or should have been aware of the suspected victim's vulnerability
Find the following examples:
Disabilities
Illness
Injuries
Age
Education
Impaired mental ability
Isolation or reliance
The apparent authority of the influencer, such as:
His or her fiduciary responsibilities
part of the family
Provider of medical services
Professional in the field of medicine
Advisor on spiritual matters
Expertise or other qualifications
The abusive acts of the influencer, which may include:
Controlling life's necessities
Prescription drugs
Interactions between the victim and others
Is it more important to have access to information
Coercion, manipulation, or use of affection
Changes an elder's personal or property rights
Swearing elders to secrecy is used
Financial Elder Abuse Claims: Other Relevant Things
When a defendant is found responsible for financial elder abuse by a preponderance of the facts, "the court shall grant to the plaintiff fair attorney's fees and expenses in addition to compensatory damages and any other relief otherwise given by law." 15657 (Welf. & Ins. Code). 5(a) Attorneys' fees are paid only by the complainant. As a result, the Elder Abuse and Dependent Adult Protection Act's expansive language, as well as the payment of your hired attorney's fees and expenses to claimants, make it an indispensable tool for elder and dependent adult rights compliance.
Furthermore, if the defendant acted with recklessness, intent, deception, or injustice, damages for pain and suffering can be levied after the victim's death if a strong and compelling proof is provided. (Normally, such losses are not recoverable for decedent-victims.) [15657.5(b) of the Welf. & Ins. Code.] This clause only extends to deceased victims. Compensatory damages, lawyers' fees, and expenses are available to living victims of financial elder abuse.
Section 3294 of the California Civil Code allows for the recovery of punitive damages. [15657.5(d) of the Welf. & Ins. Code.] In cases of financial elder violence, the Legislature has also allowed the use of writs of attachment. 15657.01 (Welf. & Ins. Code) An "attachment" is a pre-judgment provisional remedy that allows a creditor to seize the defendant's properties in order to obtain a judgment if the plaintiff is eventually awarded the judgment. Certain significant limits on the right to attach have been relaxed in financial elder abuse cases, allowing for the use of writs of attachment on all property in cases where damages are sought.
Typical Financial Elder Abuse Patterns
There are many common fact trends that suggest financial elder abuse. Family theft or overreach, caregiver theft or overreach, lawyer or accountant fraud, and banker and teller misconduct are all examples of these.
The following are some common "red flags" to watch out for, but this list is by no means complete:
Signatures on checks that aren't the same as the elder's
When the elder is physically incapable of writing, he or she signs legal papers
The elder's lavish presents
Unusual or inappropriate banking behavior
Cash or jewelry that has gone missing
Spending time with the elder by long-lost relatives or new friends
Wills or trusts are altered suddenly
Individuals are being added to accounts in exchange for assurances of continuing treatment
The desire of a relative to "save" the money expended on the elder's treatment
When a family member has been assigned to pay the bills, the bills go unpaid.
Even when the elder can afford it, lifestyle changes such as a deterioration in personal hygiene or a lack of suitable clothing or grooming products still occur
Nursing Home Abuse: Special Considerations
Nursing home workers are the most frequent perpetrators of Nursing Home Violence against their patients. Employers are usually responsible for their workers' actions (a doctrine known as respondent superior), and this principle applies in the sense of elder law.
Many victims of nursing home violence are best served by prosecuting the nursing home itself, which assumes sole responsibility for the actions of its workers, rather than pursuing a cause of action against a particular nursing home employee who is likely to have limited resources.
The Act allows the applicant to prove the following in order to prevail on a charge of physical elder abuse against a nursing home employee's employer:
The employer knew about the employee's unfitness ahead of time and hired him or her with a deliberate disregard for others' welfare, the employer approved or ratified the employee's behavior, and the employee engaged in oppressive, dishonest, or malicious behavior.
Contact a California nursing home malpractice attorney for more information on taking legal action against nursing homes and the extent to which employers may be held responsible for the actions of their workers.
That said, not all cases are the same. Your experiences will be unique from everyone else, so it's best to contact a California nursing home malpractice attorney to look over your case and give you the best possible options.
Violence in Nursing Homes Comes in a Number of Ways
The word "nursing home rape" is a broad term that includes a wide range of behaviors. The following are some of the most popular forms of nursing home violence we see:
Physical violence is any action taken against a patient that has the potential to inflict physical harm, such as punching, pinching, scratching, chewing, shoving, or hair pulling. It may also include the use of physical restraints or a deliberate failure to treat an injury.
Sexual exploitation is when someone receives unwanted sexual attention or is abused sexually. Patients who are unable to communicate their wish to be free of such scrutiny, such as those suffering from dementia or other forms of mental incapacitation, are more likely to experience it.
Psychological abuse refers to a wide variety of activities such as shouting, criticizing, gaslighting, insulting, or shaming the patient.
Financial Exploitation occurs when a nursing home employee abuses a patient's financial assets by stealing or otherwise jeopardizing them. Theft of the patient's money or personal belongings, theft from bank accounts, and identity theft are all examples.
Neglect is an indirect type of violence that is often the product of understaffing or insufficient staff training. It happens when nursing home staff refuse to adequately care for their patients, such as failing to feed or bathe them, failing to take them to physical therapy, and failing to respond to patient requests for help.
Resident-to-resident harassment occurs when one resident of a nursing home participates in any of the actions mentioned above against another resident. Despite the fact that this form of harassment does not specifically involve nurses, it can also subject a nursing home to legal responsibility, as nursing home staff have a duty to keep their patients secure.
If your loved one has been exposed to either of these types of harassment or a combination of them, the nursing home has most certainly failed in its duty of care, and you will be entitled to file a complaint.
Violence in nursing homes is becoming more popular. According to recent reports, the United States has over 3.2 million people living in nursing homes and other long-term care residential facilities, with up to 40% of all adults joining a nursing home at some point in their lives. These statistics will only increase as the American population ages. About 40 million people (roughly 13 percent of the population) in the United States were over the age of 65 at the time of the 2010 census, and that figure is predicted to grow to 18 percent in the next 40 years.
If current trends continue, an increase in the population served by nursing homes would almost certainly result in an increase in the number of cases of nursing home abuse. Consider the following scenario:
About one-third of nursing homes were cited between 1999 and 2001 for breaching federal requirements that could hurt residents.
Nearly 10% of those nursing homes had violations that put patients in danger of serious injury or death.
Violence has been confirmed by more than 40% of nursing home patients.
About 90% of nursing home residents claim to have been ignored.
According to a 2010 survey, up to half of all nursing home staff confessed to abusing or neglecting elderly patients.
More than half of all Accredited Nursing Assistants (CANs) have admitted to bullying, swearing, or shouting at patients in nursing homes.
These figures can be frightening if you're thinking of putting a loved one in a nursing home. If a loved one is currently living in a nursing home, you might be wondering if they have been exposed to some sort of violence or neglect. These figures indicate that nursing home violence affects a large portion of the senior population and that it is important to keep an eye on your loved ones and protect them from it. If you or a loved one has been the victim of nursing home neglect, contact a California nursing home elder abuse lawyer right away.
California Nursing Home Neglect
Nursing home violence is an especially serious issue in California. According to the Attorney General's office, 13 percent of all allegations to the California Office of the State Long Term Care Ombudsman in 2009 included elder violence, gross negligence, or misuse, which is more than double the national average of 5%.
In the coming years, this problem is expected to escalate. California's elderly population is expected to double to 6.4 million in the 25 years between 2000 and 2025, according to the Census Bureau, and we were actually nearing that number in 2019. About 111,000 residents reside in nursing homes throughout the state, with another 150,000 in various forms of licensed assisted living facilities. According to the Public Policy Institute of California, this number could rise by 32,000 by 2030, far beyond the state's potential. According to the institute, the Bay Area currently has the greatest difference between existing nursing home capacity and expected demand.
When the state's senior population expands, so does the number of individuals in nursing and assisted care facilities, increasing the risk of violence and neglect. Nursing homes are often understaffed, and those on duty are frequently untrained to provide quality care to the elderly. When you have a loved one in a home or supported care facility, be on the lookout for signs of violence or neglect and take action if you suspect something. Notify the home administrator, law enforcement, and a California nursing home malpractice attorney.
Who is protected by Penal Code 368 Abuse of the Elderly?
California's definition of the elderly is someone over the age of sixty-five (65) years old. Anyone over the age of 65 is protected by Penal Code 368 PC, regardless of whether the senior is mentally or physically impaired. Adult dependents between the ages of 18 and 64 are also protected by this statute. Adults depend on a caregiver or a family member to meet their basic needs. Adult dependents are generally physically or mentally impaired, and California considers them to be just as vulnerable to violence as infants.
Being convicted of breaking California's elder abuse laws is a serious matter that can have long-term consequences. Because of the improved safety requirements for the elderly, this is the case. In certain cases, the defendant is the accused elderly victim's caregiver or family member. Aside from the legal implications, there may be a negative effect on family relationships. Your future job opportunities as a caregiver would be severely limited. Retaining a professional elder abuse attorney is strongly recommended regardless of the circumstances.
Offenses Associated with/Related to Elder Abuse:
Criminal threats are prohibited under California Penal Code 422 PC. By threatening to attack, physically injure, or kill someone, you are putting them in an immediate state of fear for their life.
Rape is punishable under California Penal Code 261 PC. Rape is characterized as non-consensual sexual activity that is carried out through the use of coercion, deceit, or intimidation. The victim may be awake, unaware, or not legally capable of consenting at the time.
The prohibition of assisting suicide in California Penal Code 401 PC. It is illegal to intentionally aid/help another person commit suicide, as well as to offer support or advice to another person to commit suicide.
The Prosecution's Position
To adequately prosecute allegations of elder abuse, the prosecutor takes many steps. In these cases, they often employ a special investigation team. These units are in charge of the cases from start to finish. This ensures that a special deputy prosecutor receives training to allow them to handle the case from the moment charges are filed through the trial and sentencing.
When cases of alleged elder abuse and/or adult dependent abuse are identified, the police normally inform these investigation units/agencies. It's important to remember that these organizations are restricted in what they can investigate. Some agencies, for example, can only prosecute cases involving:
Abuse of the elderly in nursing homes, senior living centers, or rehab facilities is suspected
Cases involving misdemeanors
Senior assault, which is a felony (If a report comes from a particular state, city, or district, it will be classified as such)
Financial neglect of the elderly
Criminal sexual activity
Adults that are elderly or dependent are abused for labor and/or benefit.
The majority of alleged senior violence cases are identified to police by a family member, a close associate, a PCA, a doctor, or APS (Adult Protective Services). As soon as the agency is informed, they begin the process of denying the charges, undertaking further investigation, or immediately filing charges.
What constitutes the crime's elements?
The prosecutor must first show beyond a reasonable doubt that the elements of the offense occurred in order to obtain a conviction for Penal Code 368 elder abuse. The following are the components of the case, which are also known as the details of the case:
The defendant deliberately caused unjustified physical distress or mental anguish to an elderly person or permitted someone else to do so while in charge of or custody of the alleged victim, or willfully allowed the alleged victim's wellbeing to be jeopardized.
The suspected perpetrator was a senior citizen (65 years or older)
The defendant was aware or should have been aware that the alleged victim was elderly.
The totality of the circumstances and the facts of the case will determine if you face felony or misdemeanor elder abuse charges. If the defendant's conduct put the alleged victim in a position that put his or her defense, health, or life in jeopardy and there were no injuries, the charges could be filed as misdemeanors.
If the defendant's conduct, on the other hand, placed an elderly person or a dependent adult in a condition that may have resulted in serious bodily harm or death, and there were major injuries, then criminal charges could be filed. It depends on the evidence and a variety of other factors that the prosecutor may consider before deciding whether or not to file the lawsuit.
Elder Abuse Penalties/Punishments
Elder violence is a "wobbler," meaning it can be prosecuted as a misdemeanor or a felony, depending on the circumstances. Depending on if any potential penalty enhancements are claimed, if convicted as a criminal, it may qualify as a strike under California's Three Strikes Statute.
Anyone who has been convicted of a criminal act with a strike will face tougher punishments if they get a second strike under this statute. The third strike on one's record could result in a life sentence in jail. When facing an elder abuse lawsuit, it's important to employ an experienced legal defense team to maximize the odds of escaping the harshest penalties.
If accused of elder abuse under California's Penal Code 368, defendant will face the following penalties:
If found guilty of a misdemeanor;
A year in county jail is possible.
Summary probation (informal)
Fines
Compensation to the victim
Counseling facilities
If found guilty of a crime, defendant will be sentenced to jail.
Two, three, or four years in a federal prison
Formal (felony) probation is a possibility.
Fines
Compensation to the victim
Counseling facilities
If the victim suffered severe physical harm or death as a result of the assault, the penalty would be extended from 3 to 7 years to be served consecutively. Furthermore, under California's Three Strikes Law, a strike may be added to your record.
Furthermore, the alleged victims and anyone else who might have been injured by the defendant's illegal actions will file civil suits.
Penalties for Related/Similar Offenses
Domestic abuse legislation in California. It's important to remember that a domestic violence conviction may have significant repercussions. In certain cases, the prosecutor would seek a sentence of imprisonment for the defendant. And if the defendant was convicted of their first misdemeanor, some counties enforce an additional thirty-day minimum prison term.
The severity of the penalty is determined by the form of domestic violence statute that was broken, any injuries the alleged victim might have suffered, and the defendant's criminal background if any. These considerations are used to determine whether the defendant should be charged with a crime or a felony. In most cases, the judge may also order the defendant to participate in one-year domestic violence, batterer, or anger management program.
Assisting a suicide is a violation of California Penal Code 401 PC.
Felony charge
In a California state jail, a defendant can spend 16 months, 2 years, or 3 years.
Formal probation (for a felony)
Fines of up to $10,000 are likely.
Will Punitive Damages Be Involved in Your Case?
Punitive damages are not awarded to all claimants in personal injury cases. Punitive damages can only be ordered if the judge wishes to teach a lesson to those who may be considering similar acts or if the judge wishes to prevent the defendant from making the same errors in the future.
You or your family may receive damages for the following:
Negligence
Recklessness
Acts that are especially heinous
Malicious intent
Acting for the purpose of causing injury or death
Acts of terrorism
There are several claimants ( e.g., class actions)
After a negligence-related accident, the aim of a personal injury case is to make the injured victim "whole" again. If compensatory damages aren't enough to compensate an injured plaintiff, a judge can order additional punitive damages. The same is valid if the judge wants to punish a defendant for, especially heinous crimes. You must show a reasonable basis for requesting punitive damages in order to receive them.
How Much In Punitive Damages Can You Expect?
Punitive damages in California are actually uncapped. This means that a judge will grant as much as he or she feels acceptable in the circumstances. A court will hear all sides of the argument, consider how badly the victim was injured in the accident, and consider the plaintiff's reason for seeking punitive damages. If a judge agrees that the plaintiff needs more money, the sum will be determined by what is "relatively proportionate" to the misconduct and the compensatory loss award.
In the past, judges in California have paid varying amounts of punitive damages to plaintiffs. Only a consultation with an elder abuse lawyer will provide you with an accurate estimation of how much your case is worth. However, punitive damage awards in most jurisdictions are limited to four times the amount of compensatory damage awards. An elder abuse attorney will advise you on whether you can expect punitive damages in your personal injury case. If that's the case, you may be entitled to even more money than just compensatory damages.
Find a California Elder Abuse Lawyer
Elderly abuse necessitates thorough investigation and an experienced Elderly Abuse Attorney that's able to explain and help you collect the damages you and your loved ones have suffered through.
1000Attorneys.com has a free referral service that will match you up with pre-screened lawyers across California. If you need some clarity in your case or have trouble finding a match, contact us through our 24/7 live chat to get a free initial consultation.
