Elder Abuse Statutes

 

Elder Abuse
Welfare & Institutions Code § 15610.07. Abuse of an elder or a dependent adult

(a) "Abuse of an elder or a dependent adult" means any of the following:

(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

(3) Financial abuse, as defined in Section 15610.30.

 
Abandonment

Welfare & Institutions Code § 15610.05. Abandonment

"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.

 
Abduction

Welfare & Institutions Code § 15610.06. Abduction

"Abduction" means the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, of any elder or dependent adult who does not have the capacity to consent to the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, as well as the removal from this state or the restraint from returning to this state, of any conservatee without the consent of the conservator or the court.

 
Financial Abuse

Welfare & Institutions Code § 15610.30. Financial Abuse

a. "Financial abuse" of an elder or dependent adult occurs when a person or entity does any of the following:
        1.  Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
        2.  Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
        3.  Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in section 15610.70.
    
b.  A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.
    
c.  For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.

d.  For purposes of this section, "representative" means a person or entity that is either of the following:
       1.  A conservator, trustee, or other representative of the estate of an elder or dependent adult.
        2.  An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.
         

Isolation
Welfare & Institutions Code § 15610.43. Isolation

 a. "Isolation" means any of the following:
        
        1.  Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.
        2.  Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.
        3.   False imprisonment, as defined in Section 236 of the Penal Code.
        4.  Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.
    
b.  The acts set forth in subdivision (a) shall be subject to a rebuttable presumption that they do not constitute isolation if they are performed pursuant to the instructions of a physician and surgeon licensed to practice medicine in the state, who is caring for the elder or dependent adult at the time the instructions are given, and who gives the instructions as part of his or her medical care.
    
c.  The acts set forth in subdivision (a) shall not constitute isolation if they are performed in response to a reasonably perceived threat of danger to property or physical safety.

 
Mental Suffering

Welfare & Institutions Code § 15610.53. Mental suffering

"Mental suffering" 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 or dependent adult.

 
Neglect

Welfare & Institutions Code § 15610.57. Neglect

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 an elder or dependent adult to exercise that degree of self 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 an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

Physical Abuse
Welfare & Institutions Code § 15610.63. Physical abuse

"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:
        For punishment.
        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.
        For any purpose not authorized by the physician and surgeon.

Senior Citizens / Disabled Persons

California Civil Code § 3345. Unfair or deceptive practices against senior citizens or disabled persons; treble damages

    (a) This section shall apply only in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons, as those terms are defined in subdivisions (f) and (g) of Section 1761, to redress unfair or deceptive acts or practices or unfair methods of competition.

    (b) Whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact's discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. Whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:

        (1) Whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons.

        (2) Whether the defendant's conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person.

        (3) Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant's conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct.

 

Attorney's fees and Costs, Liability of Defendant, Damages

California Welfare & Institutions Code § 15657.5. Attorney's fees and costs; defendant liable for financial abuse; limits on damages; punitive damages

    (a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney's fees and costs. The term "costs" includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.

    (b) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, and where it is proven by clear and convincing evidnece that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse, in addition to reasonable attorney's fees and costs set forth in subdivision (a), compensatory damages, and all other remedies otherwise provided by law, the limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply.

    (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any punitive damages may be imposed against an employer found liable for financial abuse as defined in Section 15610.30. This subdivision shall not apply to the recovery of compensatory damages or attorney's fees and costs.

    (d) Nothing in this section affects the award of punitive damages under Section 3294 of the Civil Code.

 

California Welfare & Institutions Code § 15657. Attorney's fees and costs; defendant liable for physical abuse or neglect; limits on damages; punitive damages

    Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:

        (a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term "costs" includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.

        (b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.

        (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.

Health and Safety

California Health and Safety Code § 1430

1430. (a) Except where the state department has taken action and the violations have been corrected to its satisfaction, a licensee who commits a class A or B violation may be enjoined from permitting the violation to continue or may be sued for civil damages within a court of competent jurisdiction. An action for injunction or civil damages, or both, may be prosecuted by the Attorney General in the name of the people of the State of California upon his or her own complaint or upon the complaint of a board, officer, person, corporation, or association, or by a person acting for the interests of itself, its members, or the general public. The amount of civil damages that may be recovered in an action brought pursuant to this section may not exceed the maximum amount of civil penalties that could be assessed on account of the violation or violations.

(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee s employees. The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue. An agreement by a resident or patient of a skilled nursing facility or intermediate care facility to waive his or her rights to sue pursuant to this subdivision shall be void as contrary to public policy.

(c) The remedies specified in this section shall be in addition to any other remedy provided by law.

 

 

We Care

Nursing homes should be where your loved ones are taken care of and watched over. We are ready to take anyone that abuses your loved one to court. We also will make sure that your loved one receives the compensation they deserve for being mistreated and abused in a facility that was suppose to take care of them. Contact the Phillips Law Offices today if you need a nursing home abuse attorney or just have questions and want to talk. Give us a call at (530) 265-0186.