California Penal Code § 368: Elder Abuse Laws and Defenses

By The Bulldog Law Criminal Defense Team • Reviewed by a licensed California criminal defense attorney

California Penal Code § 368 is an important law that protects people who are 65 or older from abuse, neglect, and financial exploitation.

An elder abuse case can involve several different types of conduct. A person may be accused of physically hurting an older adult, failing to provide proper care, or taking money or property from an older person.

These cases can involve serious felony charges and prison time. However, not every difficult caregiving situation is a crime. Medical problems, family disagreements, an elder's own choices, and money disputes can sometimes be misunderstood as criminal conduct.

Many cases involve people who already know the older adult. The accused may be an adult child, spouse, family member, caregiver, or facility employee.

This guide from The Bulldog Law's criminal defense team explains California's elder abuse law, how these cases begin, common defenses, and what to do if you are being investigated.

What Does Penal Code § 368 Cover?

California Penal Code § 368 covers several types of elder abuse.

The main areas include:

• Physical abuse

• Endangering an older adult

• Caregiver neglect

• Financial abuse

• Theft or misuse of an elder's property

• Other conduct that causes harm or puts an elder at risk

The exact charge depends on what allegedly happened and the facts of the case.

The law is designed to protect older adults who may be vulnerable because of age, illness, disability, or dependence on another person.

At the same time, the prosecution still has to prove the required elements of the offense.

Physical Abuse and Endangerment

An elder abuse case may involve an allegation that someone caused an older person unjustifiable physical pain or placed the person in a dangerous situation.

Examples may include allegations involving:

• Hitting or striking an elder

• Rough handling

• Unsafe living conditions

• Improper use of medication

• Failing to provide needed protection

• Other conduct that creates a serious risk of harm

The seriousness of the charge can depend on the circumstances.

For example, prosecutors may look at the elder's injuries, the person's age, the accused person's actions, and whether the conduct was likely to cause serious physical harm.

A defense lawyer should carefully review what actually happened instead of relying only on the description in a police report.

Caregiver Neglect

Some § 368 cases involve a person who has care or custody of an older adult.

A caregiver may be accused of failing to provide:

• Food

• Water

• Personal hygiene

• Medical care

• Medication

• Safe living conditions

• Protection from danger

However, caring for an elderly family member can be very difficult.

An older adult may have dementia, serious medical problems, mobility problems, or other conditions that make care challenging.

A caregiver can also become overwhelmed while trying to manage work, family, medical appointments, and daily care.

A difficult situation does not automatically mean a crime occurred.

The prosecution may need to prove that the accused acted in a way that meets the legal requirements for elder abuse or neglect.

Medical Problems Do Not Always Mean Neglect

An older person's health may get worse even when they receive proper care.

For example, an elderly person may develop:

• Bedsores

• Weight loss

• Dehydration

• Infections

• Falls

• Confusion

• Memory problems

• Other medical conditions

These conditions can have many causes.

A defense may need to use medical records and medical professionals to explain what happened.

Important evidence may include:

• Doctor's records

• Hospital records

• Medication records

• Nursing notes

• Care logs

• Appointment records

• Photos

• Messages between caregivers

• Statements from medical professionals

The goal is to show the court the full medical picture.

What If the Elder Refused Care?

An older adult may refuse medical treatment, food, medication, or help.

That can create a difficult situation for family members and caregivers.

For example, an older person may refuse to:

• Take medication

• Eat certain foods

• Move to a care facility

• Attend a doctor's appointment

• Accept help with bathing

• Allow a caregiver into the home

The caregiver may try to help but still be unable to force the person to accept care.

The elder's wishes and mental capacity can therefore become important evidence.

A lawyer may need to review medical records, statements from doctors, and communications between the elder and the caregiver.

Financial Elder Abuse

Section 368 can also involve financial abuse.

Financial elder abuse allegations may involve claims of:

• Theft

• Fraud

• Forgery

• Misuse of money

• Unauthorized withdrawals

• Unauthorized property transfers

• Misuse of a bank account

• Improper use of a power of attorney

Financial disputes can become especially complicated when family members disagree about an elder's money.

For example, one family member may accuse another family member of taking money while the accused person believes the spending was authorized.

Our California grand theft defense information explains another area of California theft law that can overlap with allegations involving money or property.

What If I Had Power of Attorney?

Having power of attorney does not automatically mean that every financial transaction is legal.

At the same time, having power of attorney does not mean that every payment, withdrawal, or gift is automatically criminal.

The important questions may include:

• What did the power of attorney allow?

• Did the elder authorize the transaction?

• Was the elder mentally capable of making the decision?

• Was the money used for the elder?

• Was the person paid for legitimate caregiving work?

• Were expenses documented?

• Was the transaction consistent with the elder's wishes?

• Did the accused person hide the transaction?

Good records can be very important.

Keep receipts, bank records, written instructions, messages, and other documents that explain how the money was used.

How Elder Abuse Cases Usually Begin

Elder abuse cases can begin in several ways.

A doctor, nurse, social worker, banker, caregiver, or another person may report suspected abuse.

Adult Protective Services may also become involved.

Police may investigate after receiving a report. Prosecutors may later review the evidence and decide whether criminal charges should be filed.

This means there may be both a protective-services investigation and a criminal investigation at the same time.

Statements made during one investigation may become important in another.

That is why it is important to understand the situation before giving detailed explanations.

What Should I Do If Police or APS Contact Me?

If you are being investigated for possible elder abuse, stay calm and be respectful.

However, do not feel that you must immediately explain everything.

Before giving a detailed statement, speak with a criminal defense lawyer.

You should also:

• Keep all medical records

• Keep care logs

• Save receipts

• Preserve bank records

• Keep messages and emails

• Do not delete documents

• Do not change records

• Do not destroy evidence

• Write down important dates while they are fresh in your memory

Do not try to create new records to make the situation look better. Preserve the records that already exist.

Early legal advice can help protect both your rights and the older person's care.

Common Defenses to Elder Abuse Charges

The right defense depends on the facts of the case.

1. The Alleged Injury Had a Medical Cause

An injury does not always prove abuse.

Older adults may have fragile skin, weak bones, blood-thinning medication, balance problems, or other medical conditions.

A defense lawyer may use medical records and expert opinions to explain the cause of an injury.

2. The Caregiver Provided Proper Care

A caregiver may be accused of neglect even though they were doing their best to provide care.

Care logs can help show:

• When meals were provided

• When medication was given

• When appointments were attended

• When doctors were contacted

• What care was provided

• What problems were reported

The more complete the records, the easier it may be to understand what actually happened.

3. The Elder Refused the Care

An older person may make their own decisions.

If an elder refused treatment, medication, food, or placement in a facility, that fact may be important.

The defense should examine whether the caregiver reasonably tried to provide the required care and whether the elder knowingly refused it.

4. The Money Was Used With Permission

Financial abuse allegations can sometimes grow from family disagreements.

The defense may show that money was:

• Used for the elder's expenses

• Given as a legitimate gift

• Used with the elder's permission

• Used to pay an authorized caregiver

• Spent under a valid agreement

Bank statements, receipts, messages, and other records can help establish what happened.

5. The Accused Did Not Have Criminal Intent

Not every mistake is a crime.

A person may make a poor financial decision, misunderstand an instruction, or fail to provide care because of a genuine emergency.

The prosecution still has to prove the elements required for the particular charge.

Family Disputes Can Make These Cases More Complicated

Elder abuse cases sometimes happen during serious family disagreements.

For example, siblings may disagree about:

• Who should care for a parent

• Who controls the parent's money

• A power of attorney

• A will

• Property

• Inheritance

• Medical decisions

• Changes to beneficiaries

One family member may report another person to police or Adult Protective Services.

A family dispute does not automatically mean the accusation is false. However, the history of the dispute can be important when understanding why the allegation was made and what evidence supports it.

Protective Orders and Family Problems

When an elder abuse allegation involves family members, the case can also lead to protective orders or other restrictions.

A protective order may affect where a person can live, who they can contact, or whether they can return to the family home.

If the allegations also involve domestic violence, our information about California domestic violence charges explains another area of California criminal law that may become relevant.

Do not violate a protective order, even if you believe the allegations are false.

Frequently Asked Questions

Is elder abuse a felony in California?

It can be.

The exact classification depends on the type of conduct and the facts of the case.

Some elder abuse offenses can be charged as misdemeanors or felonies. Serious allegations involving a high risk of great bodily harm, serious injury, or death can lead to much greater penalties.

Financial elder abuse can also result in serious criminal charges depending on the amount involved and the circumstances.

Can I be charged because my parent has bedsores or lost weight?

You can be investigated or accused, but a medical condition does not automatically prove criminal neglect.

Bedsores, weight loss, and other health problems can have many causes.

The defense should review the person's medical history, treatment, care records, and the steps taken by the caregiver.

Medical evidence can be very important in showing whether the condition was caused by neglect or by an underlying medical problem.

What counts as financial elder abuse if I had power of attorney?

Power of attorney gives a person certain authority, but that authority has limits.

The key questions include what the document allowed, what the elder wanted, whether the elder had the ability to make the decision, and how the money was used.

Keep detailed records of transactions and expenses.

If a financial dispute has already become a criminal investigation, a lawyer may also need to review bank records and other financial documents.

What should I do if APS or police contact me?

Be respectful, but do not rush into a detailed statement.

Ask for the investigator's name and contact information and speak with a lawyer before discussing the facts in detail.

Preserve medical records, care logs, financial documents, messages, and other evidence.

Do not delete or change records.

Can a family member make a false elder abuse report?

Family disputes can sometimes lead to accusations against relatives.

However, whether an allegation is true or false depends on the evidence.

A defense lawyer can examine the reason for the report, the history between the family members, the medical evidence, financial records, and statements from witnesses.

The goal is to separate family conflict from evidence of an actual crime.

Can an elder abuse case involve theft charges?

Yes.

Financial elder abuse can involve allegations of theft, fraud, or other financial crimes.

The exact charge depends on what the prosecution claims happened and the evidence supporting it.

Our California grand theft information provides additional information about California theft charges.

Can identity theft be part of an elder financial abuse case?

It can be, depending on the facts.

For example, an investigation may involve allegations that someone used an older person's personal information or financial information without permission.

You can learn more about this type of allegation in our guide to California identity theft under Penal Code § 530.5.

Protecting Your Rights in an Elder Abuse Case

An elder abuse accusation can be extremely stressful, especially when the accused person is a family member or caregiver.

The best defense starts with understanding the evidence.

• Keep the records.
• Preserve medical information.
• Keep financial documents.
• Do not destroy or change evidence.
• Do not make statements without understanding how they may be used.

If you are contacted by police or Adult Protective Services about an elder abuse investigation, speak with an experienced criminal defense attorney as soon as possible.

The Bulldog Law's criminal defense team defends people facing serious criminal allegations throughout California.

Contact the firm online or call (888) 928-1609 to discuss your situation.