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 elder'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 inside 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:
If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
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, 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 elders 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,
- want to protect a guilty family member from legal repercussions, and/or
- have endured extreme isolation 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.
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, 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.
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 over to you.
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 obtaining 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.
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.
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 elder's property 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 accuse another person falsely of financial elder abuse.
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.
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.
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 an attorney for representation, we invite you to contact us 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
1California 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.")
2Our 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.
3California Penal Code 368 -- Financial elder abuse. ("(d) Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates [California Penal Code] Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred and fifty dollars ($950); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred and fifty dollars ($950). (e) Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates [California Penal Code] Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred and fifty dollars ($950), and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred and fifty dollars ($950)")
4California Welfare and Institutions Code 15600 -- Elders and dependent adults subjected to abuse, neglect or abandonment; legislative declarations and intent. ("(a) The Legislature recognizes that elders and dependent adults may be subjected to abuse, [financial abuse or senior fraud], neglect, or abandonment and that this state has a responsibility to protect these persons. (b) The Legislature further recognizes that a significant number of these persons are elderly. The Legislature desires to direct special attention to the needs and problems of elderly persons, recognizing that these persons constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment. (c) The Legislature further recognizes that a significant number of these persons have developmental disabilities and that mental and verbal limitations often leave them vulnerable to abuse and incapable of asking for help and protection. (d) The Legislature recognizes that most elders and dependent adults who are at the greatest risk of abuse, neglect, or abandonment by their families or caretakers suffer physical impairments and other poor health that place them in a dependent and vulnerable position.")
5 People v. Heitzman (1994) 9 Cal.4th 189, 202. ("In 1983, the Legislature passed the state's first law focusing exclusively on those 65 years of age or older, requiring elder care custodians and other specified professionals to report instances of elder abuse. (Welf. & Inst. Code, 9380-9386, added by Stats. 1983, ch. 1273, 2 and repealed by Stats. 1986, ch. 769, 1.3, eff. Sept. 15, 1986.) That same year, Senate Bill No. 248, 1983-1984 Regular Session, was introduced at the request of the Santa Ana Police Department. An analysis of the bill prepared for the Senate Committee on the Judiciary indicates that the goal of the legislation was to aid in the prosecution of people who harm or neglect dependent adults [which includes California financial elder abuse]. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 248 (1983-1984 Reg. Sess.) p. 2.) According to this document, law enforcement agencies receiving reports concerning suspected abuse or neglect of dependent adults were having difficulty finding Penal Code sections under which they could prosecute such cases. ( Ibid.)")
6California Penal Code 368 -- Historical and Statutory Notes. ("The 1986 amendment made the section applicable to "elder" adults as well as "dependent" adults; added the definition of "elder adult" in subd. (d); relettered the remaining subdivisions; and substantially revised the definition of "dependent adult", which formerly provided: "As used in this section, 'dependent adult' means a person who, because of any mental disability due to birth defect, physical disorder, or advanced age, is unable to properly provide for his or her own personal needs with regard to his or her physical health, food, clothing, or shelter, or is substantially unable to manage his or her own financial resources or to resist fraud or undue influence."")
See also the current wording of California Penal Code 368 relating to "dependent adults". ("(h) As used in this section, "dependent adult" means any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. "Dependent adult" includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
7See California Penal Code 368 -- financial elder abuse, endnote 3, above.
8California Welfare and Institutions Code 15630.1 -- Mandated reporter of suspected financial abuse of an elder or dependent adult; definitions and reporting requirements. ("(a) As used in this section, "mandated reporter of suspected financial abuse of an elder or dependent adult" means all officers and employees of financial institutions... Failure to report financial abuse under this section shall be subject to a civil penalty not exceeding one thousand dollars ($1,000) or if the failure to report is willful, a civil penalty not exceeding five thousand dollars ($5,000), which shall be paid by the financial institution that is the employer of the mandated reporter to the party bringing the action. Subdivision (h) of Section 15630 shall not apply to violations of this section.")
9See California Penal Code 368 -- financial elder abuse, endnote 3, above.
10California Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
11California Penal Code 1192.7(c) - ("(c) As used in this section, "California serious felony" means any of the following...(18) any burglary of the first degree"). See also California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")
12Rancho 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.
13California Penal Code 484 PC -- Petty theft. Petty theft is any theft where the value of the property, money, or services stolen is $950 or less. Whether the offense is petty theft or grand theft determines the penalty for a financial elder abuse / senior fraud case.
14California Penal Code 487 PC -- Grand theft. ("Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred and fifty dollars ($950)...")
15People v. Brock (2006) 143 Cal.App.4th 1266, 1275. ("The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property. [Citation.]" ( People v. Davis, supra, 19 Cal.4th at p. 305, 79 Cal.Rptr.2d 295, 965 P.2d 1165, fns. omitted, italics added.)")
16California Penal Code 503 PC -- Embezzlement. ("Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.") This is frequently the basis for California financial elder abuse / senior fraud charges.
17California Penal Code 470 PC -- Forgery. ("(a) Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery [that is, any instrument dealing with transferring money, property, or services]. (b) Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery. (c) Every person who, with the intent to defraud, alters, corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court or the return of any officer to any process of any court, is guilty of forgery.")
18California Penal Code 459 PC -- Burglary. ("Every person who enters any house, room, apartment, tenement, shop, [etc.]...with intent to commit grand or petit larceny or any felony is guilty of burglary. ") Entering the home of an elder, intending to steal or embezzle once inside is sufficient to sustain both financial elder abuse charges and burglary charges.
19California Penal Code 211 PC -- Robbery. ("Robbery defined. Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.")