Elder Abuse

What Is Elder Abuse Under California Law?

Penal Code § 368 covers four distinct categories of conduct against an elder or dependent adult. In plain terms, the statute makes it a crime to:

• Inflict physical pain or mental suffering on an elder or dependent adult
• Willfully cause or permit an elder to be placed in a situation endangering their health
• Neglect an elder in your care or custody, where that neglect endangers them
• Financially exploit an elder through theft, fraud, embezzlement, or undue influence

Who the Law Protects

“Elder” means any person 65 years of age or older.

“Dependent adult” means a person between 18 and 64 whose physical or mental limitations restrict their ability to carry out normal activities or protect their own rights.

The Mental State Requirement

The statute requires the conduct to be willful, or in neglect cases, criminally negligent — a standard substantially higher than ordinary carelessness or a mistake.

It also requires that the accused knew or reasonably should have known the person was an elder or dependent adult.

Both of those elements are where genuine defenses live. Criminal negligence means conduct that is a gross departure from what a reasonable person would do — not doing your best under impossible circumstances and falling short.

The Four Types of Elder Abuse Charges

H3: Physical Abuse — PC § 368(b)(1)

Inflicting unjustifiable physical pain or injury. A wobbler, chargeable as a felony or misdemeanor depending on the circumstances and the extent of injury.

Great bodily injury enhancements can add substantial time, and enhancements increase further where the victim is 70 or older.

Endangerment and Neglect

Willfully causing or permitting an elder in your care to be placed in a dangerous situation, or failing to provide necessary care. Also a wobbler.

Neglect cases are the most commonly misunderstood. They frequently arise from caregiver overwhelm — one person managing medications, mobility, hygiene, and medical appointments without training, relief, or resources. The legal question isn’t whether the care was perfect. It’s whether the failure was criminally negligent.

Mental Suffering

Inflicting unjustifiable mental suffering — including threats, isolation, or intimidation. These cases often rest heavily on interpretation and on the elder’s own account.

Financial Elder Abuse — PC § 368(d) and (e)

Theft, embezzlement, fraud, or undue influence involving an elder’s money or property.

• § 368(d) applies to someone who is not a caretaker
• § 368(e) applies to a caretaker, and is treated more seriously

As with theft offenses generally, the $950 threshold affects how the charge is filed.

This is where family disputes become criminal cases. An adult child with power of attorney uses a parent’s funds for household expenses, home repairs, or their own costs while providing care. A sibling reviewing the accounts later sees it differently and calls Adult Protective Services. What was arguably authorized — or at least genuinely believed to be authorized — becomes a criminal allegation.

How These Cases Begin

Understanding the origin helps explain why so many charges involve no intent to harm.

Mandatory reporting. California law requires a wide range of people — doctors, nurses, care facility staff, social workers, and others — to report suspected elder abuse. They must report based on suspicion, not proof. A bruise with an ordinary explanation still generates a report, because the reporter faces penalties for failing to make one.

Adult Protective Services. APS investigates and may refer a case to law enforcement.

Family members. Reports frequently come from relatives, and frequently during a conflict over caregiving decisions, living arrangements, or money.

Care facilities. Facilities report to protect themselves, sometimes in situations where the facility’s own conduct is the issue.

Why this matters to your defense: the fact that a report was made establishes nothing except that someone had a suspicion they were legally obligated to pass along. The investigation that follows is where the facts actually get examined — and that’s the stage where having counsel matters most.

What the Prosecution Has to Prove

For a physical abuse charge under Penal Code § 368(b)(1), the prosecution must prove beyond a reasonable doubt that:

1. You willfully inflicted unjustifiable physical pain or mental suffering on an elder or dependent adult, or willfully caused or permitted them to be injured or endangered;
2. You knew or reasonably should have known the person was 65 or older, or a dependent adult; and
3. Your conduct occurred under circumstances likely to produce great bodily harm or death (for the felony version).

For neglect, the standard is criminal negligence — conduct so far outside what a reasonable person would do that it demonstrates disregard for human life or indifference to consequences. Ordinary negligence is not enough.

For financial charges, the prosecution must prove you took or used the elder’s property with the intent to defraud — not merely that money was spent in a way someone else disagrees with.

Penalties for Elder Abuse in California

Penal Code § 368 offenses are generally wobblers. As misdemeanors they carry county jail exposure, fines, and probation. As felonies they carry state prison exposure, which increases with the severity of injury and with enhancements.

Great bodily injury enhancements under § 368(b)(2) add consecutive time, with additional exposure where the victim is 70 or older.

Financial abuse penalties vary with the amount involved and with whether the accused was a caretaker.

Consequences Beyond Sentencing

• Professional licensing. For nurses, CNAs, home health aides, social workers, and facility staff, an elder abuse allegation is frequently career-ending — often before any conviction, because licensing boards act on charges.
• Caregiver registries. A substantiated finding can bar you from working in care settings permanently.
• Family and custody consequences. Conservatorship proceedings, family disputes, and visitation with the elder are all affected.
• Restitution, particularly substantial in financial cases.
• Immigration. These offenses can be treated as crimes involving moral turpitude.
• Reputation. The accusation itself carries stigma that survives a dismissal.

Defenses to Elder Abuse Charges

The injury had a medical or accidental cause. This is the most common reality in physical abuse allegations. Older adults bruise easily, particularly on blood thinners. Falls are common with age, medication, and mobility issues. Skin tears occur during ordinary transfers. What looks like an inflicted injury to a reporter is frequently explainable — and medical records and expert review are how that gets established.

The care was not criminally negligent. Doing your best without training, relief, or resources, and falling short, is not the same as criminal negligence. Courts and prosecutors can be receptive to this distinction when it’s documented and presented properly.

False or mistaken accusation. Elder abuse allegations surface during inheritance disputes, conservatorship fights, divorces, and disagreements about a parent’s care. The timing of a report, and who made it, are both legitimately investigable.

The elder’s account is unreliable. This has to be handled with care and without disrespect — but dementia, medication effects, and cognitive decline genuinely affect memory and perception. Where an allegation rests solely on an account affected by those conditions, that’s a real evidentiary issue.

Authorization in financial cases. Where you had power of attorney, were a joint account holder, or were acting with the elder’s consent, the intent to defraud element fails. Documentation matters enormously here.

You weren’t responsible for the care. Neglect charges require care or custody. Where responsibility was shared, undefined, or belonged to a facility, that element is contestable.

Lack of knowledge. The statute requires that you knew or reasonably should have known the person was an elder or dependent adult.

Why a Former Prosecutor Matters in an Elder Abuse Case

These cases arrive at the District Attorney’s Office through a referral — from a mandatory reporter, from Adult Protective Services, or from a family member. Someone then decides whether the facts amount to a crime or to a difficult family situation that doesn’t belong in criminal court.

Polina Logrue made those decisions at the Orange County District Attorney’s Office. She knows what distinguishes a case prosecutors believe in from one that was referred because a reporter had no choice, what medical documentation changes a filing decision, and how the office evaluates financial allegations that originate in a family dispute.

In many of these cases, the most valuable work happens before charges are filed — presenting medical records, caregiving documentation, and financial authorizations to a prosecutor who hasn’t yet committed to a position.

Meet Polina →

Accused of Elder Abuse? Do This First

1. Don’t discuss it with investigators, APS, or facility staff without counsel. They are gathering information, and explanations offered in good faith become evidence.
2. Preserve the medical records. Existing conditions, medications, prior falls, and mobility limitations are frequently the entire defense.
3. Document the caregiving. Medication logs, appointment calendars, notes, texts with family, and anything showing the scope of what you were managing.
4. Gather financial authorizations if the allegation involves money — powers of attorney, joint account records, written instructions, and anything reflecting the elder’s wishes.
5. Write down the timeline, including who reported, when, and what was happening in the family at the time.
6. Don’t confront the person who reported. It will be read as intimidation.
7. Call before charges are filed. This is the stage where these cases are most winnable.

Call (949) 758-4469 · Free Consultation

Related Charges

• Assault & Battery — Penal Code §§ 240, 242
• Domestic Violence — where the elder is a spouse or cohabitant
• Theft & Property Crimes — for financial allegations
• White Collar Crimes — embezzlement and fraud
• Restraining Orders — frequently sought alongside these allegations
• Pre-Filing & Investigation — the most valuable stage in these cases