In the state of California, abuse of a senior over the age of sixty-five can carry civil penalties under California’s Elder and Dependent Adult Civil Protection Act (“Elder Abuse Act”). In enacting the Elder Abuse Act, the California Legislature expressly recognized its desire “to direct special attention to the needs and problems of elderly persons, recognizing that these persons constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment.” The Legislature further found and declared that infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits. Therefore, the Elder Abuse Act provides enhanced civil remedies to redress the reckless acts and/or omissions within the Elder Abuse Act’s ambit that are perpetrated against the elders in our communities.
California civil law defines elder abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering. Each of these components of elder abuse has specific definitions. Included in the definition of civil elder abuse is deprivation of necessary goods and services by a person responsible for the care of the elder. The Elder Abuse Act further defines neglect as:
“[t]he negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise. Neglect includes, but is not limited to, the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide mental care for physical and mental health needs. (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration.”
Under the Elder Abuse Act, if a plaintiff can prove the abuse/neglect was done with “recklessness, oppression, fraud, or malice,” the plaintiff may be entitled to additional remedies. However, the plaintiff has to meet its burden of proof by “clear and convincing evidence” which is the highest standard of proof in the civil context. To recover these enhanced remedies, the plaintiff must at a minimum establish that the defendant: (1) was responsible for supplying the necessaries of nutrition, hydration, hygiene or medical care for an elder or dependent adult; (2) was aware of conditions that made the elder unable to supply him/herself with those necessities; and (3) denied or withheld the goods and services required to supply those necessities, either knowing or being substantially certain that the deprivation would cause injury or with a conscious disregard of the probability that the deprivation would cause injury. Lastly, the plaintiff has to prove that, as a result of this deprivation, the elder or dependent adult suffered either physical pain or mental anguish.
Elder abuse is a complex area of law that requires an understanding of both the Elder Abuse Act and California’s Medical Injury Compensation Reform Act. If you believe that someone you know has suffered elder abuse or neglect, you should contact an attorney experienced in handling these claims. At Walton Law, A.P.C., a large portion of our practice is dedicated to representing seniors in our community in matters involving elder abuse and neglect
For a free and confidential consultation with an experienced elder abuse attorney, please call us directly at (866) 338-7079, or click here to submit your inquiry online.