The State of California gives elders, or the elderly or seniors, and dependent adults special legal protection to prevent their being abused and taken advantage of.
What is elder/dependent abuse?
Elders are defined as anyone (a) 65 and older and (b) living in a care or custodial setting, such as in a nursing home. Dependent adults are defined as anyone (a) 18-64 years of age and (b) dependent on others due to a physical, emotional, or mental disability.
Elder abuse and dependent abuse refer to the neglect, exploitation, or “painful or harmful” mistreatment of an elder or dependent adult. Such abuse might involve physical violence, psychological abuse, isolation, abandonment, abduction, false imprisonment, or neglect by a caregiver.
For more information, see the California State Bar page on Elder Abuse.
What’s the difference between abuse and neglect?
Under Cal. Penal Code 368, “abuse” occurs when any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an elder or a dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person of health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health ins endangered.
“Abuse of an elder or dependent adult” Under Cal. Penal Code 15610.07 – means either of the following:
- Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
- The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Such includes physical abuse ,neglect, financial abuse ,abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering and/or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
“Neglect” under Cal. Penal code 15610.57(b):
- Failure to assist in personal hygiene, or in the provision of food, clothing or shelter.
- Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
- Failure to protect from health and safety hazards.
- Failure to prevent malnutrition or dehydration.
- Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) – (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.
Elderly people and dependent adults become the victims of abuse and neglect when nursing homes or dependent adult and assisted living facilities either intentionally injure or fail to protect them from dangers that result in injury.
According to the U.S. Department of Health and Human Services, the primary types of elder abuse and neglect involve emotional, physical, and verbal abuse and neglect, and financial abuse.
Most elder abuse and neglect occurs in understaffed and overcrowded long-term care facilities. Frequently, elderly residents require assistance dealing with complex medical issues as well as daily personal needs. Unfortunately, caregivers often are overworked, underpaid, and poorly trained – conditions that can lead to abuse.
Do you know a victim?
Sometimes it is difficult to tell whether your elderly loved one is simply aging, or has been a victim of nursing home abuse and neglect. The following list describes the most common types of elder neglect and abuse:
- Physical, Sexual and Emotional Abuse
- Physical, Emotional or Verbal Neglect
- Nursing Home Falls
- Malnutrition, dehydration, excessive weight loss
Where can I find assistance?
The following agencies may aid and assist you in ensuring that your loved ones are protected from nursing home, dependent adult or assisted living facility abuse and neglect in California.
Department of Health Services (CDHS), Licensing and Certification
The California Department of Health Services administers investigations into complaints, as well as licensing, and certification surveys on skilled nursing facilities, acute care facilities, and transitional care centers. Annual survey results of these facilities as well as results of investigations are available for public viewing at the CDHS office within the county where the facility is located. This is a good source of information for the general public.
To determine the district office nearest you, call (916) 445-4171. The contact number for licensing and certification is (916) 552-8700.
Department of Social Services (CDSS), Community Care Licensing
The California Department of Social Services provides a similar function to that of CDHS, but for residential care facilities only. Results of investigations, as well as annual survey results are available at the CDSS offices within the specific county where the facility is located.
Other California Government Resources
- Bureau of Medi-Cal Fraud and Elder Abuse Medi-Cal Fraud and Elder Abuse
- California Department of Aging
- California State Long-Term Ombudsman Program
- California Commission on Aging
What laws may impact my case?
Elder Law is generally governed by the 1987 Nursing Home Reform Act, a set of laws that establish the standards of care for elder nursing homes and assisted living facilities.
The Nursing Home Reform Act was adopted to protect residents from neglect, abuse, and mistreatment and commands that all facilities provide:
- Individual care plans for each resident
- Nursing services
- Social services
- Pharmaceutical and medication services
- Nutritional and dietary services
- In facilities with more than 120 beds, a full-time social worker
- Rehabilitative services
The Residents’ Bill of Rights
The Nursing Home Reform Act guarantees the following rights to nursing home residents:
- The right to freedom from abuse, mistreatment, and neglect
- The right to freedom from physical restraints
- The right to privacy
- The right to accommodation of medical, physical, psychological, and social needs
- The right to participate in resident and family groups
- The right to be treated with dignity
- The right to exercise self-determination
- The right to communicate freely
- The right to participate in the review of one’s care plan, and to be fully informed in advance about any changes in care, treatment, or change of status in the facility
- The right to voice grievances without discrimination or reprisal
If any of these rights are violated, the nursing home resident or family member should contact Berglund & Johnson immediately to prevent further abuse and make sure your rights, or those of a family member, are fully protected.