Elder abuse fraud or senior fraud in California is defined as wrongfully defrauding a person age 65 or older out of money or property. The offense can be filed as a misdemeanor or a felony and can carry penalties of up to 4 years in jail or prison.
California elder abuse laws include
- physical abuse (discussed in detail in our article on Penal Code 368 | California physical elder abuse),
- financial abuse (the subject of this article), and
- any other treatment that results in physical and/or mental pain or suffering
when directed at an “elder”…defined as a person who is 65 or older.1
Financial elder abuse (also commonly referred to as “senior fraud”) is on the rise. It can be as simple as stealing some money out of an elderly person’s wallet or as sophisticated as fraudulently taking control of an elder’s estate.
And…as is the case with many California crimes…financial elder abuse is often charged against innocent individuals who have been falsely accused of (and wrongfully arrested for) this serious offense.
Therefore, it’s critical to seek legal representation from an attorney who has expertise in handling California senior fraud cases…and who therefore knows the most successful ways to help you fight your financial elder abuse charges.
As former prosecutors and police officers, we have invaluable insider experience which gives us an advantage in understanding…and, more importantly, in defending…cases involving California financial elder abuse.
In order to help you better understand California “senior fraud” laws, our California criminal defense attorneys2 will address the following:
- 1. What is elder financial abuse or senior fraud in California?
- 2. How does the prosecutor prove that a senior fraud case?
- 3. What are some examples of elder financial abuse?
- 4. What are the potential consequences?
- 5. How can a defense attorney fight the charges?
- 6. What other crimes tend to be charged together with senior fraud?
If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
1. What is elder financial abuse or senior fraud in California?
Simply put, financial elder abuse is the theft or embezzlement of money or other property from an elder. This type of senior fraud is penalized in California Penal Code sections 368(d) and 368(e).3
If you mismanage money, property, or other assets belonging to an elderly individual, prosecutors could charge you with this offense. Everyday examples of senior fraud include (but are by no means limited to):
- not paying an elder’s bills that you are responsible for paying,
- not purchasing necessary items for the elder that you are responsible for buying (food, medications, clothing, etc.),
- making unauthorized (or fraudulently obtained) withdrawals or purchases using the elder’s ATM or credit card, and
- making unauthorized (or fraudulently obtained) changes to an elder’s will or power of attorney.
Although anyone can commit senior fraud and financial exploitation, the Los Angeles branch of Adult Protective Services reports that about 90% of their cases involve allegations that a family member has financially abused an elder.
The history of California senior fraud law
In the early 1980s, the California Legislature first acknowledged that elders and “dependent adults” deserve special protection against abusive behaviors. “Dependent adults” include those whose physical and mental abilities have diminished because of age.4
In 1983, the Legislature enacted Penal Code 368. This code was written in direct response to law enforcement agencies who wanted to prosecute those who were abusing or neglecting dependent adults.5 Initially, the code was restricted to “dependent adults”.
But then in 1986, the Legislature amended California Penal Code 368 specifically to protect “elders” in addition to “dependent adults”. This amendment, which has largely remained unchanged, broadened the scope of protection to include those who are 65 years or older, regardless of whether or not they are able to care for themselves.6
Sections (d) and (e) of Penal Code 368 address financial elder abuse. Recognizing that older adults oftentimes aren’t as savvy as the typical consumer…and are often taken advantage of by those in positions of trust…these sections protect this class of vulnerable individuals.7
As an added measure of protection, in 2007, the Legislature required employees of banks and other financial institutions to report suspected financial elder abuse.8 This law was based on the fact that financial institutions typically have the first opportunity to recognize signs of senior fraud. The failure to report suspected abuse subjects the offender to a maximum $5,000 fine.
And it is actually this type of elder abuse…that is, financial elder abuse or senior fraud…that is the most difficult to investigate and prosecute. Adult Protective Services typically takes about 30 days to resolve an elder abuse case. However, their senior fraud cases often remain open for one to two years.
This is because many cases of financial elder abuse involve seniors who
- are too embarrassed to admit that they’ve fallen victim to a scam or someone’s undue influence,
- want to protect a guilty family member from legal repercussions, and/or
- have endured extreme isolation at home or in a long-term care facility to the point that they either can’t communicate with others or are afraid to speak to others for fear of the physical abuse that they may suffer if they do.
In addition, many times financial elder abuse involves claims of Medi-Cal fraud and/or allegations of elder abuse in California nursing homes. These types of cases inevitably lead to more time-consuming investigations.
In an effort to prosecute senior fraud cases successfully and aggressively, many California organizations participate in a multi-agency approach.
The California Attorney General, local law enforcement agencies (including prosecutors’ offices and police departments), Adult Protective Services, and the California Department of Consumer Affairs all work together in an effort to combat this rapidly growing form of elder abuse.
2. How does the prosecutor prove that a senior fraud case?
In order to convict you of senior fraud, the prosecutor must prove the following facts (otherwise known as “elements of the crime”):
- that you committed a “financial” crime (that is, wrongful use of money or property through theft, fraud, forgery, or embezzlement),
- that the property involved in the crime belonged to an elder, and
- you were a caregiver for the elder, or
- you knew or reasonably should have known that the individual was an elder.
Basically, this means that the prosecutor must prove the elements of the specific theft or embezzlement offense of which you are accused…with the added requirement that the alleged victim was an elder.
If the prosecutor can’t prove each and every element of this offense, you are entitled to an acquittal of your California senior fraud charges.
It’s important to understand that financial elder abuse can result in criminal charges and/or civil allegations. This article focuses exclusively on senior fraud criminal charges. However, if you or a loved one is being sued for financial elder abuse, we can help you resolve your civil case as well.
3. What are some examples of elder financial abuse?
California financial elder abuse can take place under an infinite number of circumstances. It doesn’t matter whether you steal money from an elder’s wallet, take property from the elder without permission, or fraudulently convince an elder to sign his entire estate and property rights over to you to avoid probate.
Any unauthorized (or fraudulently obtained) use of an elder’s money or property is considered a violation of California’s financial elder abuse law.
That said, some types of senior fraud are not so obvious or easy to detect. In fact, many examples of senior fraud involve scams…scams that target vulnerable elders. Despite the fact that they aren’t obvious to the unsuspecting senior, many of these scams are quite common.
Below is a brief description of some of the most frequently prosecuted forms of this type of elder abuse.
Telemarketing / mail / internet senior fraud
This is one of the easiest ways to commit senior fraud…which is, perhaps, why it is so common. Soliciting a senior to:
- donate to a fraudulent charity,
- pay money to claim an illegitimate sweepstakes prize, or
- provide his/her personal information in an effort to use that information for unlawful purposes,
is a violation of California’s senior fraud laws.
As a side note, it is important to know that anyone can call the national “Do Not Call” registry to be removed from telemarketing lists.
Credit card insurance / credit repair elder fraud
If you contact an elder and either 1) make fraudulent promises to repair his/her credit, or 2) offer fraudulent insurance to protect his/her credit cards against unauthorized charges, prosecutors could charge you with California senior fraud.
Home repair senior fraud
If you knock on a senior’s door, offering to make home improvements…tree-trimming services, roof repair, paint touch-ups, etc…and then either
- take the money without performing the work, or
- don’t perform the promised work (or do a shoddy job),
you may be guilty of violating California’s financial elder abuse laws.
Funeral and cemetery senior fraud
Funeral and cemetery arrangements are actually regulated by the California Department of Consumer Affairs’ Cemetery and Funeral Bureau.
If you are accused of trying to scam or defraud a senior into paying exorbitant costs for these arrangements…or even basic costs for services that you are not going to provide…it is important to seek representation from a California criminal defense attorney with experience defending financial elder abuse cases.
Real estate predatory lending elder abuse
If, for example, you offer a senior citizen a loan, knowing there’s no way he/she can repay it, or lock an elder into a loan with a balloon payment that is impossible to pay…all in an effort to increase your commission…prosecutors could file financial elder abuse charges against you for unscrupulous practices.
In the event that you are involved in any of the above activities…but for whatever reason, you are not successful in appropriating the elder’s property and/or money…prosecutors could still charge you with attempted senior fraud.
“Attempted financial elder abuse” subjects you to half of the jail or prison time and half of the fine that you would otherwise face if the crime had been completed.
4. What are the potential consequences?
California financial elder abuse is punished in much the same manner as California theft offenses. This means that your penalty is largely dependent on the value of the money, property, or services that were stolen.
If the value was $950 or less, you face only a misdemeanor. If the value was more than $950, prosecutors could charge you with a misdemeanor or a felony (this is what’s known as a “wobbler”).9
Misdemeanor senior fraud
If convicted of misdemeanor financial elder abuse under California Penal Code 368 PC, you face the following penalties:
- informal (otherwise known as “summary” probation),
- a maximum one-year county jail sentence, and
- a maximum $1,000 fine.
Felony financial elder abuse
If convicted of felony senior fraud, you face the following penalties:
- formal probation,
- two, three, or four years in the California State Prison,
- a maximum $10,000 fine10, and
- a “strike” on your record under California’s Three Strikes Law if you are convicted of Penal Code 459 PC burglary in connection with your elder abuse charges11.
5. How can a defense attorney fight the charges?
Fortunately, there are a variety of defenses to senior fraud that a good California criminal defense attorney could present on your behalf. The following are examples of some of the most common.
Lack of criminal intent
The most basic element of any California theft offense is the intent. If you don’t have the intent permanently to deprive an owner of his/her property, you aren’t guilty of theft or embezzlement.
This means that if you didn’t intend permanently to deprive an elder of his money or property, you aren’t guilty of senior fraud.
Let’s say, for example, that you took money from the senior’s bank account, intending to buy her new clothes. Or perhaps you took some of the personal property of an elder to have it repaired.
Maybe you reinvested some of the elder’s assets because you caught wind of a great opportunity that didn’t pan out. Your intentions were good, even though the investment didn’t bring in more money.
Maybe you engaged in one of the activities described above that law enforcement agencies monitor for common senior scams. But perhaps you actually:
- performed an honest home repair,
- solicited a donation to a legitimate (but not so well known) charity, or
- thought you truly could help a senior with his investments or in repairing his credit…
if you acted in good faith, you have not violated California’s senior fraud laws. This means that even if all signs point to fraud…if you didn’t intend permanently to deprive the elder of his/her property, you must be acquitted of financial elder abuse.
Senior fraud is very serious. An individual could easily lose his/her entire life savings in the blink of an eye to a sophisticated criminal. But just because a senior is taken advantage of, doesn’t mean that you are the culprit.
If you are a caregiver for an elder, or a family member of an elder, or the financial advisor to an elder, even well-meaning individuals who are simply trying to protect the victim may accuse you of senior fraud.
But as Rancho Cucamonga criminal defense lawyer John Murray explains12, “I’ve seen innocent caregivers charged with senior fraud by family members just trying to cover-up their own criminal conduct”.
Which leads to the next defense…
False accusations / wrongful arrest
Depending on the type of theft that occurs, it could be very easy for someone to falsely accuse another person of being a financial elder abuser.
Perhaps you are the elder’s caregiver and a jealous family member accuses you of stealing property or money because he/she is angry that the elder is giving you gifts or including you in a will.
Perhaps an angry caregiver feels like a member of the elder’s family is too controlling and is looking for a way to distance that individual.
There are countless reasons why people are falsely accused and wrongfully arrested for senior fraud…and countless ways that a California criminal defense lawyer who defends elder abuse charges can challenge those allegations.
6. What other crimes tend to be charged together with senior fraud?
In order to convict you of financial elder abuse, the prosecutor must prove that you stole or embezzled the elder’s money or other property. As such, the following California theft offenses are closely related to senior fraud.
(Defendants also face civil lawsuits, where they may have to pay compensatory and punitive damages.)
Penal Code 484 PC petty theft
A California Penal Code 484 PC “petty theft” takes place when you steal money, property, or services whose value is $950 or less.13 If you are accused of financial elder abuse…and the amount in question is $950 or less…you may be charged with both petty theft and elder abuse.
Penal Code 487 PC grand theft
Similarly, if you are accused of senior fraud and the amount in question is more than $950, prosecutors could charge you with financial elder abuse and California Penal Code 487 PC grand theft14.
Penal Code 602 PC trespass
If, for example, you take an elder’s money or property from his house without his permission, you also commit a trespass15…even if you otherwise have permission to be on the property. Under these circumstances, prosecutors could charge you with California Penal Code 602 PC trespass and senior fraud.
Penal Code 503 PC embezzlement
California Penal Code 503 PC embezzlement takes place when you take something from another person that has been entrusted to you.16 Suppose, for example, you are a caregiver living with your elderly patient and she gives you $75 to pay the water bill. If, instead of paying the bill, you take the money for yourself, you have embezzled that money.
Penal Code 470 PC forgery
California Penal Code 470 PC forgery takes place when you knowingly alter, create, or use a written document intending to commit a fraud.17 Examples of situations where financial elder abuse and forgery may be charged together include (but are not limited to) instances where the accused:
- signs the elder’s name to a check without permission to do so,
- cashes a check for him/herself when in was intended for another person, or
- signs the elder’s name to a will or other legal document without the authority to do so.
Penal Code 459 PC burglary
California Penal Code 459 PC burglary is a frequently misunderstood crime. Many people incorrectly presume that a burglary takes place when you “break” into a home, stealing money or property once inside.
Burglary actually takes place when an individual enters a home or store with the intent to commit a felony or petty theft once inside…even if the intended felony or theft doesn’t actually take place.18
This means that if, for example, you enter an elder’s home with the intent of stealing or embezzling once inside…and then actually steal or embezzle…prosecutors could charge you with both burglary and financial elder abuse.
Penal Code 211 PC robbery
California Penal Code 211 robbery is defined as taking another person’s property from his/her person, accomplished by force or fear.19 If you “rob” an elder on the street…and you knew or should have known that the individual was an elder…prosecutors could charge you with robbery and senior fraud.
Call us for help
If you or loved one is charged with senior fraud and you are looking to hire a lawyer for representation, we invite you to contact our criminal defense elder abuse attorneys at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For information about Nevada fraud law, go to our page on Nevada fraud law.
A Citizen’s Guide to Preventing and Reporting Elder Abuse--
Written by the California Attorney General’s Office, this pamphlet offers definitions, resources, and prevention tips.
What Should I Know about Elder Abuse?--
Frequently asked questions about each type of elder abuse answered by the State Bar of California
- California Welfare and Institutions Code 15610.07 — Elder abuse. ( “Abuse of an elder or a dependent adult’ means either of the following: (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.”) See also California Penal Code 368 — Elder abuse. (“(g) As used in this section, “elder” means any person who is 65 years of age or older.”)
- Our Los Angeles criminal defense attorneys have local criminal law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.
- California Penal Code 368 — Financial elder abuse.
- California Welfare and Institutions Code section 15600
- People v. Heitzman (1994) 9 Cal.4th 189, 202.
- California Penal Code 368 — Historical and Statutory Notes.
- See California Penal Code 368 — financial elder abuse, endnote 3, above.
- California Welfare and Institutions Code 15630.1
- See California Penal Code 368 — financial elder abuse, endnote 3, above.
- California Penal Code 672 PC — Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
- California Penal Code 1192.7(c)
- Rancho Cucamonga criminal defense lawyer John Murray is a successful criminal trial attorney who defends those accused of elder abuse primarily in the San Gabriel Valley and Inland Empire areas.
- California Penal Code 484 PC — Petty theft.
- California Penal Code 487 PC — Grand theft.
- People v. Brock (2006) 143 Cal.App.4th 1266, 1275.
- California Penal Code 503 PC — Embezzlement.
- California Penal Code 470 PC — Forgery.
- California Penal Code 459 PC — Burglary.
- California Penal Code 211 PC — Robbery.