Rex L. Crandell

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California State Definitions.

Various aspects of
Elder Abuse

 

 

“Abandonment”

Under Cal. Pen Code 15610.05 - means the desertion or

willful forsaking of an elder or a dependent adult by anyone having care or

custody of that person under circumstances in which a reasonable person would

continue to provide care and custody.

 

Abduction”

Under Cal. Pen code 15610.06 means the removal from this

state and the restraint from returning to this state, or the restraint from returning

to this state, of any elder or dependent adult who does not have the capacity to

consent to the removal from this state and the restraint from returning to this

state, or the restraint from returning to this state, as well as the removal from this

state or the restraint from returning to this state, of any conservatee without the

consent of the conservator or the court.

 

“Abuse”

Under Cal. Pen. Code 368 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 or 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 is endangered.

 

“Abuse of an elder or dependent adult”

Under Cal. Pen. Code

15610.07 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. Includes 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

.

 

“Elder”

Under Cal. Pen. Code 368 means any person residing in this state,

between the ages of 18 and 64 years, who has physical or mental limitations that

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;

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.

 

 

“Financial abuse”

Under Cal. Pen. Code 15610.30 Financial abuse" of an

elder or dependent adult occurs when:

(a) A person or entity does any of the following:

(1) Takes, secretes, appropriates, or retains real or personal property of an

elder or dependent adult to a wrongful use or with intent to defraud, or

both.

(2) Assists in taking, secreting, appropriating, or retaining real or personal

property of an elder or dependent adult to a wrongful use or with intent to

defraud, or both.

(b) A person or entity shall be deemed to have taken, secreted, appropriated, or

retained property for a wrongful use if, among other things, the person or

entity takes, secretes, appropriates or retains possession of property in bad

faith.

(1) A person or entity shall be deemed to have acted in bad faith if the

person or entity knew or should have known that the elder

or dependent adult had the right to have the property transferred or made

readily available to the elder or dependent adult or to his or her

representative.

(2) For purposes of this section, a person or entity should have known of a

right specified in paragraph (1) if, on the basis of the information

received by the person or entity or the person or entity's authorized third

party, or both, it is obvious to a reasonable person that the elder or

dependent adult has a right specified in paragraph (1).

(c) For purposes of this section, "representative" means a person or entity that

is either of the following:

(1) A conservator, trustee, or other representative of the estate of an elder

or dependent adult.

(2) An attorney-in-fact of an elder or dependent adult who acts within the

authority of the power of attorney.

 

"Isolation"

Under Cal Pen. Code 15610.43 means any of the following:

(1) Acts intentionally committed for the purpose of preventing, and that do serve

to prevent, an elder or dependent adult from receiving his or her mail or

telephone calls.

(2) Telling a caller or prospective visitor that an elder or dependent adult is not

present, or does not wish to talk with the caller, or does not wish to meet with

the visitor where the statement is false, is contrary to the express wishes of

the elder or the dependent adult, whether he or she is competent or not, and

is made for the purpose of preventing the elder or dependent adult from

having contact with family, friends, or concerned persons.

(3) False imprisonment, as defined in Section 236 of the Penal Code.

(4) Physical restraint of an elder or dependent adult, for the purpose of

preventing the elder or dependent adult from meeting with visitors.

(b) The acts set forth in subdivision (a) shall be subject to a rebuttable

presumption that they do not constitute isolation if they are performed

pursuant to the instructions of a physician and surgeon licensed to practice

medicine in the state, who is caring for the elder or dependent adult at the

time the instructions are given, and who gives the instructions as part of his or

her medical care.

(c) The acts set forth in subdivision (a) shall not constitute isolation if they are

performed in response to a reasonably perceived threat of danger to property

or physical safety.

 

“Neglect”

under Cal Pen. code 15610.57.

(a) "Neglect" means either of the following:

(1) The negligent failure of any person having the care or custody of an

elder or a dependent adult to exercise that degree of care that a

reasonable person in a like position would exercise.

(2) The negligent failure of an elder or dependent adult to exercise that

degree of self care that a reasonable person in a like position would

exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing,

or shelter.

(2) 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.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Failure of an elder or dependent adult to satisfy the needs specified in

paragraphs (1) to (4), inclusive, for himself or herself as a result of poor

cognitive functioning, mental limitation, substance abuse, or chronic poor

health.

 

"Physical abuse"

under Cal Pen. Code 15610.63 - means any of the following:

(a) Assault, as defined in Section 240 of the Penal Code.

(b) Battery, as defined in Section 242 of the Penal Code.

(c) Assault with a deadly weapon or force likely to produce great bodily injury,

as defined in Section 245 of the Penal Code.

(d) Unreasonable physical constraint, or prolonged or continual deprivation of

food or water.

(e) Sexual assault, that means any of the following:

(1) Sexual battery, as defined in Section 243.4 of the Penal Code.

(2) Rape, as defined in Section 261 of the Penal Code.

(3) Rape in concert, as described in Section 264.1 of the Penal Code.

(4) Spousal rape, as defined in Section 262 of the Penal Code.

(5) Incest, as defined in Section 285 of the Penal Code.

(6) Sodomy, as defined in Section 286 of the Penal Code.

(7) Oral copulation, as defined in Section 288a of the Penal Code.

(8) Sexual penetration, as defined in Section 289 of the Penal Code.

(9) Lewd or lascivious acts as defined in paragraph (2) of subdivision (b)

of Section 288 of the Penal Code.

(f) Use of a physical or chemical restraint or psychotropic medication under any

of the following conditions:

(1) For punishment.

(2) For a period beyond that for which the medication was ordered

pursuant to the instructions of a physician and surgeon licensed in the

State of California, who is providing medical care to the elder or

dependent adult at the time the instructions are given.

(3) For any purpose not authorized by the physician and surgeon.

 

 

 

 

 

 

 

Friday, September 26, 2008

Source: http://209.85.173.104/search?q=cache:LCIZjvcRtSoJ:www.centeronelderabuse.org/files/CaliforniaStateDefinitions.pdf+Penal+Code+%C2%A7368&hl=en&ct=clnk&cd=9&gl=us

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