Orange County Elder Abuse Attorney
If you or a loved one is the victim of elder abuse, call the Law Offices of John Rapillo today for a free consultation. Mr. Rapillo has over 38 years experience helping elder abuse victims get the compensation they deserve.
What is Elder Abuse?
According to the CDC, when a caregiver fails to act or commits an intentional act which results in the risk of harm to a person age 60 or older, elder abuse has occurred. The CDC notes that there is currently no set of universally accepted definitions regarding elder abuse, and that such a consistent definition is badly needed.
The term “elder abuse” has either been defined specifically for the purpose of research, defined to reflect statutes in a specific location, or is simply poorly defined. Consistency with a definition of elder abuse would allow the true magnitude of the issue of elder abuse to be determined, thereby allowing the increase of prevention and intervention efforts.
Elder Abuse Statistics
Statistics show that nationwide, there are an estimate 2,150,000 cases of elder abuse every year. Approximately 9.5 percent of our elderly population will experience some type of abuse. Additional elder abuse statistics include the following:
- Women are much more likely to be victims of elder abuse—67.3 percent of elder abuse victims are female.
- The average age for a victim of elder abuse is 77.9 years.
- There are more white victims of elder abuse (66.4 percent) than for any other race, with black victims making up 18.7 percent and Hispanic victims making up 10.4 percent.
- Regarding the specific type of elder abuse, neglect makes up the highest percentage at 58.5 percent, physical abuse at 15.7 percent, exploitation of finances at 12.3 percent, emotional abuse at 7.3 percent, sexual abuse at .04 percent, and “other” at 5 percent.
- Nationwide, the percent of Adult Protective Service cases which involve elder abuse is about 68 percent. Of those cases, approximately 66 percent of the elderly who suffered abuse did so at the hands of an adult child or a spouse.
- Even more shocking, 42 percent of elderly adults who were murdered, were killed by their adult child.
- More than 90 percent of nursing homes across the United States currently lack sufficient staff, making it much more likely the elderly who reside in those homes will suffer, at the very least, elder neglect.
In Orange County, the Elder and Dependent Adult Abuse Registry received more than 9,000 reports of elder abuse in 2014, a number which was a 74 percent increase from 2004. Financial abuse is the most frequently reported type of elder abuse in Orange County, and, contrary to common beliefs, victims of elder abuse come from all walks of life—every income level and every social status.
Unfortunately, as disturbing as these facts are, one study estimates only one in fourteen cases of elder abuse are actually reported to authorities. Social isolation and/or mental impairment are two of the primary factors which make older adults especially vulnerable to elder abuse. When compared with elder adults who have not been mistreated, those who suffer abuse have a 300 percent higher risk of death.
Different Types of Elder Abuse
As noted above, there are several different types of elder abuse. These types of abuse include:
- Physical abuse occurs when physical force against an elderly person is deliberately used, resulting in injury, pain, chronic illness, distress, or even death. Acts of violence such as striking the elderly person, as well as pushing, shaking, stomping, burning, biting, suffocating, slapping, shoving, kicking, and pinching all constitute physical elder abuse. The inappropriate use of confinement, drugs or restraints also fall under the umbrella of physical abuse. Any time signs of restraint, broken eyeglass, broken bones, sprains or dislocations, bruises, welts or scars are noticed, or if the caregiver refuses to allow loved ones to see the elderly person alone, physical abuse may be occurring.
- Elder sexual abuse is unwanted or forced sexual interaction with an elderly person. This can include touching, either directly or through clothing of the genitals, groin, breast, inner thigh or buttocks. If loved ones see bruises around the breasts or genitals, unexplained anal or vaginal bleeding in an elderly person, the elderly person has unexplained genital infections or sexually transmitted diseases, or torn, bloody or stained underwear is present, then elder sexual abuse may have occurred.
- Emotional and psychological elder abuse can be more difficult to define, however any type of non-verbal or verbal behaviors which results in fear, distress, mental pain or anguish to the elder person, falls under emotional and psychological abuse. When an elderly person is humiliated, called names, controlled through denying access to money, transportation, telephone or other resources, continuously blamed or scapegoated, or intimidated through threats or yelling, emotional and/or psychological elder abuse has occurred. There are also non-verbal psychological elder abuses which can occur, taking the form of ignoring an elderly person, isolating the elderly person from his or her friends and activities, or menacing the elderly person.
- While neglect many not sound as serious as the other forms of elder abuse, the failure of a caretaker to protect an elderly person from harm, or to meet the basic needs of food, water, cleanliness, clothing and medical care can be very serious. Failing to prevent exposure by the elderly person to unsafe environments or activities, also fall under the category of neglect. When loved ones note an elderly person has lost an unusual amount of weight, is dehydrated, has untreated bed sores, has been left dirty or unbathed, is wearing clothing which is unsuitable for the weather, or is living in unsanitary or unsafe conditions (lack of heat or running water, faulty electrical wiring, dirty living area, soiled clothing or bedding, etc.) then elder neglect is likely.
- Elder financial exploitation or abuse is becoming more and more common. Unscrupulous people often target the elderly because they are more easily intimidated and confused, and because many may suffer some level of dementia, making them easier targets. Financial exploitation and abuse of the elderly include the unauthorized, illegal or improper use of an elderly person’s financial resources for the benefit of someone other than the elderly person. Forgery, theft of money or possessions, use of coercion to persuade an elderly person to surrender property or finances, and improper use of a power of attorney document are all forms of elder financial abuse. When the elderly person’s signature is forged, identity theft of the elderly person occurs, cash, income checks or household items are stolen, or bank accounts and credit cards are misused, elder financial exploitation or abuse has occurred. If loved one’s notice:
- Significant withdrawals from the bank account of an elderly loved one;
- Sudden, unexplained changes in the elderly person’s financial condition;
- Items or cash missing from the home of the elderly;
- Unpaid bills;
- Suspicious changes in policies, titles and wills, or
- Additions to an elderly person’s signature card,
they should immediately and thoroughly check out the situation, then notify the proper authorities.
There is one additional type of elder abuse, known as elder healthcare fraud. When an unethical medical professional engages in any of the following, elder healthcare fraud has occurred:
- Charging for healthcare which was not provided;
- Double-billing or charging much more than warranted for medical services or care;
- Receiving kickbacks for prescribing certain prescription drugs;
- Over or under-medicating the elderly person, and
- Making fraudulent recommendations for an elderly person’s illness.
What is “Undue Influence” Under California Law?
In January 2014, the state of California adopted statutes which provided a new definition for undue influence, regarding the elderly in particular. These statutes were codified under California Probate Code Section 86, as well as California Welfare and Institutions Code Section 15610.70. The new definition states that undue influence is “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” The California Welfare and Institutions Code enumerates factors which must be considered, including:
- Age of the victim;
- Incapacity of the victim;
- Illness or disability of the victim;
- Education of the victim;
- Cognitive functions which appear to be impaired on the part of the victim;
- Victim isolation;
- Victim dependency, and
- If the person doing the influencing was aware of the vulnerabilities of the victim.
It is important to note, however, that undue influence is not limited to those elderly persons who have some level of impaired cognitive function, but can also occur among elderly persons who are fully cognizant, when significant manipulation tactics are employed. In particular, when a person who is trusted by the elderly person (family member, friend, caregiver) engages in manipulation tactics, resulting in the elderly person losing assets, then undue influence has occurred. The person using undue influence on an elderly person may have used any of the following tactics or actions against the elderly person:
- Controlled the elderly person’s life necessities (shelter, food, clothing, medication);
- Limited the elderly person’s access to information;
- Limited the elderly person’s access to sleep;
- Limited the elderly person’s access to other loved ones;
- Used affection inappropriately;
- Used coercion or intimidation;
- Claimed an expertise not actually held in order to make changes, and
- As a result, received a significant economic outcome.
What are the Warning Signs of Elder Abuse?
While touched on briefly above, the warning signs of elder abuse bear repeating. If family members, friends or others notice any of the following in their elderly loved one, consider these signs a red flag, and take appropriate action:
- Unusual bruising;
- Abrasions, with no rational explanation;
- Pressure marks;
- A sudden change in the person’s level of alertness;
- Unusual depression;
- Seeing frequent arguments between a caregiver and an elderly person;
- Sensing a “tense” relationship between a caregiver and an elderly person;
- Withdrawal by the elderly person;
- Any sudden change in the finances of the elderly person;
- An unusual or sudden weight loss;
- Poor hygiene;
- Medical needs of the elderly person which appear to be unattended to;
- Untreated bedsores;
- Witnessing a caregiver belittle the elderly person;
- Witnessing a caregiver threaten the elderly person;
- Witnessing a caregiver use power or control over the elderly person, or
- Any indication that the caregiver does not want you to be alone with the elderly person.
Risk Factors for Elder Abuse
Caregiving is one of the most difficult jobs, and it can be particularly difficult to be a caregiver for an elderly person who has a wide variety of needs. It is also very difficult to be the elderly person who has lost independence and must deal with mental and physical infirmity. When the needs of the elderly person and the significant demands of caregiving collide, situations in which abuse is more likely to occur may result. A caregiver who is generally unable to cope with stressful situations, who may be suffering from depression, who has little or no support from others, sees caregiving as burdensome, or suffers from substance abuse is much more likely to engage in elder abuse. In the nursing home setting, lack of training, being overburdened with caretaking responsibilities, working under inferior conditions or simply being unsuited to the job can lead to elder abuse.
On the side of the elderly person, those who are suffering from a serious illness, or have been diagnosed with dementia or Alzheimer’s are more likely to be abused. When the caregiver and the elderly person suffer social isolation—meaning the two are together almost constantly, with no outside help or influences—elder abuse is more likely. While not an excuse for elder abuse, if the elderly person was, at an earlier time, an abusive parent or spouse, elder abuse is more likely. Finally, if the elderly person engages in verbal or physical aggression—whether due to cognitive issues, illness, or personality traits–then that person is more likely to suffer elder abuse.
Criminal Penalties for Elder Abuse in the State of California
Under California Penal Code 368 PC, physical, emotional, financial or neglectful elder abuse can be criminally prosecuted as either a felony or misdemeanor, depending on the specific facts of the case as well as the prior criminal history of the defendant. If the elder abuse is prosecuted as a misdemeanor, the accused could receive up to one year in county jail as well as significant fines. If the elder abuse is prosecuted as a felony, the defendant could receive a sentence of two to four years in state prison.
Reporting Incidences of Elder Abuse
In the state of California, approximately 225,000 cases of elder abuse are reported every year. Unfortunately, experts believe that for every one case reported, as many as five cases of elder abuse and neglect go unreported. Failure to report elder abuse or neglect in a long-term healthcare facility is a crime, and California law requires that every facility for the elderly provide training to workers which will enable them to recognize and report such abuse.
For others who may not be legally mandated to report elder abuse, ethically you do have a responsibility. If you see an elderly adult who appears to be neglected or abused, don’t assume someone else will step up, report the situation. Many elderly persons who are abused and neglected do not tell anyone for fear of retaliation, or due to fear there will be nobody to take care of them if they report abuse or neglect by their primary caretaker. “Hard evidence” is not necessarily required, however the more details you can provide, the more able the agency will be able to help.
How an Orange County Elder Abuse Attorney Can Help
Elder abuse is a serious, traumatic event. Should you decide to file an elder abuse lawsuit, it is crucial that you have specific information and that you understand the statutes and laws in the state of California which can make the legal process particularly complex. For these reasons, it is extremely important to speak to an Orange County elder abuse attorney as soon as possible who can guide you through the litigation process with compassion and experience, while ensuring the rights of your loved one are fully protected.