BILL ANALYSIS
AB 768
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Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Bonnie Lowenthal, Chair
AB 768 (Torres) - As Amended: April 15, 2009
SUBJECT : Elder abuse.
SUMMARY : Deletes the requirement that a person either know or
reasonably should know that the victim of a crime defined as
elder or dependent adult abuse was an elder or dependent adult.
Specifically, this bill :
1)Deletes the current standard that the abuser must have
knowledge that the victim is an elder or dependent adult in
order to be punishable for a crime of elder or dependent adult
abuse in the following cases:
a) Under circumstances or conditions likely to produce
great bodily harm or death;
b) Under circumstances or conditions other than those
likely to produce great bodily harm or death; or,
c) Where the person is not a caretaker who violates
existing law proscribing theft, embezzlement, forgery,
fraud, or identity theft.
2)Expands the scope of the crime of elder or dependent adult
abuse to include any person who willfully causes or permits
any elder or dependent adult to sustain any wound or physical
or psychological injury under circumstances or conditions
likely to produce great bodily harm or death and provides that
the crime is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed six thousand
dollars, or by both that fine and imprisonment, or by
imprisonment in the state prison for two, three, or four
years.
3)Similarly expands the scope of elder and dependent adult abuse
crimes to include any person who willfully causes or permits
any elder or dependent adult to sustain any wound or physical
or psychological injury under circumstances other than those
likely to produce great bodily harm or death and provides that
the crime is a misdemeanor. A second or subsequent violation
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would be punishable by a fine not to exceed two thousand
dollars or by imprisonment in a county jail not to exceed one
year, or by both the fine and imprisonment.
EXISTING LAW in various statutes, regulations, and programs
within state departments, provides for the prevention,
reporting, investigation, and prosecution of elder and dependent
adult abuse and the collection of data regarding these cases.
Specifically, existing law:
1)Includes findings and declarations that crimes against elders
and dependent adults are deserving of special consideration
and protection.
2)Establishes the Elder Abuse and Dependent Adult Civil
Protection Act (EADACPA), which defines abuse of an elder or
dependent adult as either:
a) Physical abuse, neglect, financial abuse, abandonment,
isolation, abduction, or other treatment with resulting
physical harm or pain or mental suffering; or,
b) The deprivation by a care custodian of goods or services
that are necessary to avoid physical harm or mental
suffering.
3)Specifies that financial abuse of an elder or dependent adult
under EADACPA occurs when a person or entity does any of the
following:
a) 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; and,
b) 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.
4)Specifies that any person who knows or reasonably should know
that a person is an elder or dependent adult and who, under
conditions likely to produce great bodily harm or death,
willfully causes or permits any elder or dependent adult to
suffer, or inflicts unjustifiable physical pain or mental
suffering, or having the care or custody of any elder or
dependent adult to be placed in a situation in which his or
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her person or health is endangered to be punished by:
a) a term of imprisonment in a county jail not to exceed on
year;
b) by a fine not to exceed six thousand dollars ($6,000);
c) by both a fine and imprisonment in a county jail; or,
d) by imprisonment in the state prison for two, three, or
four years.
5)Specifies that if, in the commission of the offense described
above, the victim suffers great bodily injury the defendant
shall receive an additional term in state prison as follows:
a) three years if the victim is under 70 years of age; or,
b) five years if the victim is 70 years of age or older.
6)Specifies that if, in the commission of the offense described
above, the defendant causes the death of the victim, the
defendant shall receive an additional term in state prison as
follows:
a) five years if the victim is under 70 years of age; or,
b) seven years if the victim is 70 years of age or older.
7)Specifies that any person who knows or reasonably should know
that a person is an elder or dependent adult and, who under
conditions other than those likely to produce great bodily
harm or death, willfully causes or permits any elder or
dependent adult to suffer, or inflicts unjustifiable physical
pain or mental suffering, or having the care or custody of any
elder or dependent adult to be placed in a situation in which
his or her person or health is endangered is guilty of a
misdemeanor.
8)Specifies that a second or subsequent violation is punishable
by:
a) a fine not to exceed two thousand dollars ($2,000);
b) by imprisonment in a county jail not to exceed one year;
or,
c) by both a fine and imprisonment.
9)Specifies that any non-caretaker who violates any provision of
law proscribing theft, embezzlement, forgery, fraud, or
identity theft, when the value of the crime is more than $400,
is subject to:
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a) imprisonment in a county jail not exceeding one year;
or,
b) in the state prison for two, three, or four years.
If the value of the crime is less than $400, the individual is
subject to a fine not exceeding one thousand dollars, by
imprisonment in a county jail not to exceed one year, or both.
10)Specifies that any person who commits the false imprisonment
of an elder or dependant adult by the use of violence, menace,
fraud, or deceit is punishable in the state prison for two,
three, or four years.
11)Specifies that upon conviction of a felony violation, the
fact that the victim was an elder or dependent adult shall be
considered a circumstance in aggravation when imposing a
sentencing term.
12)Provides that in any case in which an individual is convicted
of elder abuse, the court may require him or her to receive
appropriate counseling as a condition of their probation.
Similarly, existing law provides for the prevention and
reporting of abuse and neglect of elders and dependent adults
and the delivery of various services to victims of abuse as well
as those who are functionally impaired, through the Adult
Protective Services (APS) program. APS provides assistance to
elderly and dependent adults who are functionally impaired,
unable to meet their own needs, or are victims of abuse,
neglect, or exploitation. The county APS program receives
reports of abuse and neglect of elderly and dependent adults
residing in their own homes for investigation and evaluation of
their need for protection and services. APS coordinates support
services for both emergency situations and longer-term case
management.
The State Long Term Care Ombudsman Program is authorized through
the federal Older Americans Act (42 U.S.C. Sec. 3001 et seq.)
and its state companion, the Mello-Granlund Older Californians
Act (Welfare and Institutions Code, Division 8.5, commencing
with Section 9000). The primary responsibility of the program
is to investigate and attempt to resolve complaints made by, or
on behalf of, individual residents in long-term care facilities.
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These facilities include skilled nursing facilities,
residential care facilities for the elderly, intermediate care
facilities, adult residential care facilities, and adult day
health care facilities.
State law authorizes the Department of Justice's Bureau of
Medi-Cal Fraud and Elder Abuse to protect the state's Medi-Cal
Program from fraud and abuse, and to investigate and prosecute
elder and dependent adult abuse, neglect, and poor quality of
care occurring in long-term care facilities.
Local law enforcement entities are responsible for investigating
reported elder and dependent adult abuse cases. Some local law
enforcement agencies dedicate specific units to these cases.
District attorney and city attorney offices are responsible for
the investigation and prosecution of elder and dependent adult
abuse. Some local entities have devoted units to specialize in
the prosecution of elder and dependent adult abuse cases.
FISCAL EFFECT : Unknown.
COMMENTS :
This bill eliminates the requirement that a perpetrator have
specific knowledge of the victim's status as an elder or
dependent adult and includes the willful infliction of physical
or psychological injury as evidence of elder or dependent adult
abuse.
Approximately 200,000 Californians are victims of elder and
dependent adult abuse each year, with family members
constituting more than two-thirds of the alleged abusers. As
California's population ages due to the influx of the baby boom,
elder abuse is likely to become an even more pressing issue.
Nationwide, between 1 and 2 million older adults have been
injured, exploited, or otherwise mistreated by someone on whom
they depend on for care or protection. Data suggests that only
1 in 14 incidents of abuse come to the attention of authorities.
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Current estimates for financial abuse are even more striking,
suggesting that only 1 in 25 cases are reported.
According to proponents, prosecutors seeking to protect victims
of elder abuse face challenges holding perpetrators accountable
because of unnecessarily restrictive language related to elder
and dependent adult abuse in the Penal Code. Unlike Penal Code
guidelines on child abuse or sexual assault against minors,
elder and dependent adult abuse guidelines mandate that
prosecutors must prove that the perpetrator knew the victim was
elderly or a dependent adult and that the abuse caused physical
pain or mental suffering to the victim, above and beyond the
actual injury or financial loss. These restrictions leave elders
and dependent adults without adequate legal protection against
abuse and force the criminal justice system to allow abusers to
go free.
California Advocates for Nursing Home Reform argues that this
bill does not create any new crimes against elders or dependent
adults, thus prosecutors will still have to prove criminal
intent on the part of the perpetrator. However, this bill will
change the requirement that the prosecutor must prove, in
addition to the defendant's intent to commit the crime, that the
perpetrator intended to commit the crime while knowing that the
victim was an elder or dependent adult. If the perpetrator
intended to commit the crime and the victim happened to be an
elder or dependent adult, then that should be enough.
According to the author, California's elder and dependent adult
population deserves to be fully protected from abuse. Too many
elders suffer from exploitation and abuse at the hands of both
strangers and their own family members without ever seeing their
abusers brought to justice.
Recent amendments have addressed the primary concern of the
California Hospital Association (CHA) and the California
Association for Health Facilities (CAHF).
This bill is double-referred to this Committee and the Assembly
Committee on Public Safety.
Prior and Related Legislation:
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AB 2611 (Simitian), Chapter 886, Statutes of 2004, increased
criminal penalties related to elder and dependent adult abuse
and made them applicable to a person who knows or reasonably
should know that the potential victim is an elder or dependent
adult. In addition, the bill applied a preponderance of
evidence standard of proof for the commission of financial
abuse, instead of the current "clear and convincing evidence"
standard. A prior version of the bill had deleted the knowledge
requirement for elder and dependent adult abuse.
SB 344 (Strickland) applies the existing penalties for elder and
dependent adult financial abuse to knowingly engaging in
exploitation of or exerting criminal undue influence upon an
elder or
dependent adult in order to acquire possession or control of an
interest in funds or property of the elder or dependent adult.
SB 344 is currently pending in Senate Public Safety.
REGISTERED SUPPORT / OPPOSITION :
Support
San Francisco District Attorney - sponsor
CalPACE
California Advocates for Nursing Home Reform (CANHR)
California Alliance for Retired Americans (CARA)
Institute on Aging
Professional Fiduciary Association of California
Tuolumne County District Attorney
Opposition
None on file.
Opposition Unless Amended
California Association of Health Facilities (CAHF)
California Hospital Association (CHA)
Analysis Prepared by : Allison Ruff / AGING & L.T.C. / (916)
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319-3990