California Penal Code section 368 covers a range of elder abuse offenses, including elder financial abuse: taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud. The elder financial abuse subsections under PC 368(d) and (e) carry significant felony exposure and are frequently charged in family or caregiver contexts where the line between authorized access and “wrongful use” is contested. This page covers the framework and the defense angles.

Who is an “elder” or “dependent adult”

An “elder” under PC 368 is any person 65 years of age or older. A “dependent adult” is a person between 18 and 64 who has physical or mental limitations that restrict the person’s ability to carry out normal activities or protect their rights. Both definitions are broad and can apply to a wide range of victims.

Elements of PC 368(d) (elder financial abuse)

The prosecution must prove: (1) the defendant committed financial abuse, defined as taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult; (2) the conduct was for a wrongful use or with intent to defraud; (3) the defendant knew or reasonably should have known the alleged victim was an elder or dependent adult; AND (4) the value of the property and the nature of the conduct determine whether the offense is misdemeanor or felony.

Felony or misdemeanor

PC 368 is a wobbler. The dollar value of the property and the seriousness of the conduct (presence of injury, prior offenses) drive the charging decision. Felony exposure under PC 368(d) is 2, 3, or 4 years in state prison, plus enhancements under PC 368(d)(1) for property values exceeding specified thresholds ($950 and $950,000+ at the high end). Misdemeanor exposure is up to one year in county jail.

The “wrongful use” element

The “wrongful use” element is often the defense focus. The prosecution must prove the defendant knew or should have known that the use of the property was wrongful. Family members handling an elderly parent’s finances under power of attorney, joint account access, or informal arrangement often face PC 368 charges when other family members dispute the conduct. The scope of authority is fact-specific.

Common elder financial abuse defenses

Authorization. Power of attorney, joint account agreements, written or verbal authorization, and established course of dealing can all defeat the “wrongful use” element. The defense often hinges on documentation of authority and the elder’s capacity at the time of the authorization.

Capacity at time of authorization. If the elder had capacity at the time they granted authority, subsequent disputes by family members about whether the use was “wrongful” become difficult for the prosecution to prove without evidence of fraud or undue influence.

Lack of knowledge about elder status. In stranger-victim cases, the prosecution must prove the defendant knew or should have known the victim was an elder. This is often satisfied but can be contested in some scenarios.

Civil family dispute. Many PC 368 cases arise from inheritance disputes or sibling rivalries over an elderly parent’s care. Defense framing as a civil family matter, paired with proper probate or family-court process, can support a no-file disposition.

Restitution and pre-filing intervention. If property has been returned or restitution paid, and the dispute reframed as a misunderstanding rather than a crime, pre-filing intervention can sometimes prevent charges from being filed.

The civil overlay

PC 368 often runs parallel to civil elder abuse claims under Welfare and Institutions Code section 15600 and following. Civil cases can produce significant treble-damages exposure under W&I 15657.5. Coordination between criminal defense and civil counsel is critical when both proceedings are active.

What to do right now

If you have been accused of elder financial abuse, do not have substantive conversations with family members, alleged victims, or investigators without counsel. Preserve all documentation of authorization, capacity, and the relationship to the elder or dependent adult. Pre-filing intervention is often available and the highest-leverage defense moment.

The Law Office of Zak Fisher is a Los Angeles criminal defense practice. This page is general legal information, not legal advice for any specific matter. Past results do not guarantee a similar outcome in your case. No attorney-client relationship is formed without a signed engagement letter. Attorney Advertising. Zak Fisher, Esq., California Bar No. 332712.

Penal Code § 368: Elder Financial Abuse Defense