America’s population is aging. In the first decade after the baby boomer generation began to turn 65 in 2011, the Census Bureau estimates that the 65-and-up population grew by more than 13.5 million.
The latest Census Bureau numbers indicate that there are nearly 56 million adults 65 or older in the United States, and more than 5.9 million of them live in California. Between 2010 and 2060, Kern County’s 60-and-over population is projected to increase by 192%.
As America’s population has aged, th prevalence of elder abuse has also increased. The Centers for Disease Control (CDC) reports, “About 1 in 10 people aged 60 and older who live at home” experience abuse each year. And according to the National Center on Elder Abuse (NCEA), there is a consensus among those who have studied elder abuse that it is significantly underreported.
Recognizing the need to protect vulnerable older adults, California adopted the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) in 1982 and has strengthened the law in the succeeding years. This included the establishment of Adult Protective Services (APS) in 1998.
The EADACPA’s stated purpose is threefold:
The bill also defines what constitutes elder abuse and establishes civil and criminal penalties for it.
California’s EADACPA defines elder abuse as:
Let’s take a closer look at these categories.
Physical abuse is a broad category. It includes obvious things like assault and battery but also includes some things you might not readily think of, such as restraining someone against their will, depriving someone of food or water, and improperly using medications to sedate or restrain someone. In addition, California law includes elder sexual abuse as a subset of elder physical abuse.
Neglect is a caregiver’s failure to exercise reasonable care—the level of care that another, reasonable person would exercise in the same situation—in meeting the needs of an elderly person. This includes failure to help with personal hygiene, provide needed medical care, protect from physical dangers, or prevent malnourishment or dehydration.
Elder abuse through isolation can involve preventing someone from receiving mail or phone calls, turning away visitors by falsely claiming someone doesn’t want to see them, and restraining someone to prevent them from meeting with visitors.
Although the terms aren’t mentioned specifically, psychological and emotional abuse are included—“treatment with resulting . . . mental suffering.” The law prohibits the infliction of mental suffering through “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.”
Financial abuse is taking or obtaining an elder’s property “for a wrongful use or with intent to defraud.”
The California Penal Code (Section 368) carries penalties for those who:
Section 15656 of the EADACPA also establishes criminal penalties for those found guilty of elder abuse.
According to Section 15657 of the EADACPA, if a defendant is found liable for elder physical abuse, neglect, abandonment, or financial abuse and it is proven that the defendant used “recklessness, oppression, fraud, or malice” in carrying out the abuse, the plaintiff may be able to recover:
If the elder abuse lawsuit involves a healthcare practitioner or institution, damages are limited to the amounts stipulated in California’s Medical Injury Compensation Reform Act (MICRA). You can read more about the limits MICRA places on damages on the Chain | Cohn | Clark blog.
If it can be proven that a defendant’s employer knew about, approved of, or participated in the elder abuse, a plaintiff can also seek punitive damages from the defendant’s employer.
If an abused elderly Californian dies, their representatives can still initiate an elder abuse lawsuit or carry on a lawsuit in progress.
Although the statute of limitations for most elder abuse cases is two years—the same as for other matters of personal injury law—Section 15657.7 of EADACPA stipulates a four-year statute of limitations for cases of elder financial abuse.
Regardless of whether a case of elder abuse has resulted in criminal charges for the abuser, the victim can file a civil lawsuit under the EADACPA. Although criminal cases must be proven beyond a shadow of a doubt, civil cases use lesser standards (see the Judicial Council of California Civil Jury Instructions):
For elder abuse cases, proof by a preponderance of evidence is sufficient to claim economic damages, but to claim attorney’s fees and noneconomic damages, the plaintiff must prove with clear and convincing evidence that the defendant acted “with recklessness, oppression, fraud, or malice.”
To prove elder physical abuse under EADACPA, the plaintiff must show:
To prove elder neglect in California, the plaintiff must show:
To prove elder financial abuse under EADACPA, the plaintiff must show:
For elder financial abuse cases, proof by a preponderance of evidence is sufficient to claim economic damages and attorney’s fees; clear and convincing evidence that the defendant acted “with recklessness, oppression, fraud, or malice” is necessary only to claim noneconomic damages.
It’s heartbreaking to see elderly Californians, some of our community’s most vulnerable citizens, abused, neglected, or taken advantage of. The discovery that a trusted caretaker has harmed your elderly loved one is traumatic. As you seek to make sense of the situation and determine your next steps, consider contacting the elder abuse attorneys at Chain | Cohn | Clark. We may be able to help you recover financial losses and hold the abuser accountable for their actions.
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