Elder Abuse and Dependent Adult Abuse

The law in cases alleging Elder Abuse and Dependent Adult Abuse comes from California's “Elder Abuse and Dependent Adult Protection Act.” Attorney Richard M. Oberto has provided defense counsel in both criminal and civil cases under the Act. He has helped many clients to protect their liberty, livelihoods, and reputations.

“Elder” and “Dependent” Adult

A case of elder or dependent adult abuse requires a complaining witness who fits into a specially defined legal category. Elder abuse requires a complaining witness who was at least 65 years old at the time of the alleged abuse. The complaining witness does not need to have been suffering from any particular infirmity, impairment, or disability.

Dependent adult abuse requires a complaining witness who was between 18 and 64 years of age at the time of the alleged abuse and who was suffering from certain physical or mental limitations. The limitations must have restricted the person’s ability to carry out normal activities or protect his rights. They can be due to a physical or developmental disability or to some aspect of the aging process. A person who was receiving treatment in certain inpatient settings such as a health or psychiatric facility or chemical dependency recovery hospital may qualify automatically as a dependent adult.

The Required Mental Intent

The crime of elder and dependent adult abuse requires proof that the accused person had the required mental intent. The accused generally must have committed the act that caused the pain, suffering, or injury willfully or on purpose. The exception is where the accused had a legal duty to supervise and control the person who caused the injury. In such cases, the accused does not need to have acted willfully. The accused need only have acted with criminal negligence. Criminal negligence is where a person acts with greater than ordinary negligence and creates a high risk of death or great bodily harm, but is not conscious of the risk he is creating.

Misdemeanor Elder or Dependent Adult Abuse

Penal Code section 368(c) defines the misdemeanor crime of elder and dependent adult abuse. The crime carries up to six months in jail, a fine of up to $1,000, and court-ordered counseling. Repeat offenses carry a longer potential jail term and greater fines.

Misdemeanors elder and dependent adult abuse requires proof that the accused person caused unjustifiable pain, suffering, or injury. The accused person can be held liable if he (a) caused the harm willfully, (b) allowed or permitted someone else to cause the harm, or (c) had a legal duty to supervise and control the person who caused the harm.

Felony Elder and Dependent Adult Abuse

Penal Code section 368(b)(1) defines the offense of elder or dependent adult abuse that presents a likelihood of great bodily injury or death. The offense is a “wobbler,” meaning that it can be charged as a felony or misdemeanor. As a felony, the potential term of imprisonment is two, three, or four years or up to one year in the county jail. As a misdemeanor, the potential term is one year in jail. The potential fine in either case can be as much as $6,000.

Great Bodily Injury

The potential punishment for elder or dependent adult abuse increases more steeply when the complaining witness is alleged to have actually suffered Great Bodily Injury (“GBI”). A GBI enhancement under Penal Code section 12022.7 elevates the crime to a Strike Offense under California's Three Strikes Law. The added penalty for the enhancement depends on the age of the complaining witness. The potential penalty is an additional three years in state prison if the complaining witness was under the age of 70 at the time of the alleged abuse and five years in state prison if the complaining witness was 70 years of age or older.

Serious Allegations

Allegations of elder and dependent adult abuse place a person's liberty, reputation, and livelihood at grave risk. Some cases arise from hasty and mistaken conclusions of witnesses and and law enforcement officials. An accused person should ensure he has the best legal representation. Mr. Oberto has a reputation for investigating the law and facts and treating every case with special attention to detail.

Mr. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Espanol.

People also may contact Mr. Oberto to request an initial consultation using the contact form available on this website. Please do not use the contact form to write down sensitive information. Information communicated over the internet, including through this website, may not be considered confidential or privileged.

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