Abuse by an In-Home Caregiver

In-home care arrangements are one of the settings our elder abuse and neglect page lists, and they raise a question that care facility cases usually do not: who actually employed the person in the home? The answer decides who can be held responsible, which rules applied to the hiring, and which bond or insurance may stand behind a claim.

This guide covers caregivers who come into a parent's home, whether through a licensed home care organization, a referral registry, a home health agency, a county program, or a private arrangement. If the abuse happened in a nursing home or assisted living, start with our guide on what to do this week if you suspect nursing home neglect.

What happens, step by step?

Make your parent safe. Call 911 if there is danger now. Arrange a different caregiver, or a family member, for the next shifts.
Get a medical exam and ask the doctor to record injuries, weight, hydration and any medication problems.
Report to Adult Protective Services. In Sonoma County the hotline is (707) 565-5940 or (800) 667-0404, 24 hours a day, with an online form for reports; for abuse at home, reports go to adult protective services or law enforcement (Welfare and Institutions Code 15630(b)(1)(F)).
Find out who employed the caregiver: a licensed home care organization, a registry that only made the referral, a home health agency, the In-Home Supportive Services program, or your family directly.
Preserve the evidence: care logs, timesheets, texts, the service agreement, payment records, and photos of injuries and the home.
Check the caregiver's registration on the state home care aide registry, which shows each aide's registration status and affiliated organization (Health and Safety Code 1796.12(i)).
Note the deadlines: generally two years for injury (Code of Civil Procedure 335.1) and four years from discovery for financial abuse (Welfare and Institutions Code 15657.7).

Who employed the caregiver, and who may be responsible?

Arrangement	What the law says about it	Who may be responsible
Aide employed by a licensed home care organization	The organization must clear the aide on the registry before client contact (Health and Safety Code 1796.43), carry a $10,000 employee dishonesty bond and liability insurance of at least $1,000,000 per occurrence, and report suspected abuse (1796.42)	The aide; the organization for conduct within the scope of employment (CACI 3700) and for its own negligent hiring or supervision (CACI 426)
Independent aide found through an employment agency or registry	An employment agency that refers an independent home care aide is not a home care organization (1796.17(b)(7)); an independent aide works under a direct agreement with the client (1796.12(p))	The aide; any role the agency played depends on its own conduct and contract
Home health agency staff	Licensed separately and excluded from the home care organization rules (1796.17(b)(1)); its employees are care custodians (Welfare and Institutions Code 15610.17)	The employee; the agency for conduct within the scope of employment
In-Home Supportive Services provider	Excluded from the home care organization rules (1796.17(b)(4)); in Sonoma County, applications go through the County's Adult and Aging Division	The provider; if a public entity could be involved, a written claim is due within six months (Government Code 911.2)
Caregiver hired privately by the family	No agency in between	The caregiver, under the Elder Abuse Act and ordinary injury law

What counts as abuse by a caregiver?

California's Elder Abuse Act defines abuse to include physical abuse, neglect, abandonment, isolation and abduction that result in physical harm, pain or mental suffering, the deprivation by a care custodian of goods or services needed to avoid physical harm or mental suffering, and financial abuse (Welfare and Institutions Code 15610.07). Physical abuse includes assault, battery, sexual assault, unreasonable physical restraint, prolonged or continual deprivation of food or water, and the use of a physical or chemical restraint or psychotropic medication as punishment or beyond what a doctor ordered (Welfare and Institutions Code 15610.63).

Neglect is the negligent failure of anyone who has the care or custody of an elder or dependent adult to use the care a reasonable person in a like position would use, including help with hygiene and food, medical care, protection from health and safety hazards, and prevention of malnutrition or dehydration (Welfare and Institutions Code 15610.57). A caregiver who misses shifts, leaves a parent unfed or unbathed, or ignores a fall can fall within that definition. Taking jewelry, cash or card numbers is financial abuse, covered in our guide on recovering money taken from an elder.

When is the agency responsible for what its caregiver did?

Responsibility for the employee's conduct. An employer is responsible for harm caused by its employees' wrongful conduct while acting within the scope of their employment (CACI 3700). Conduct is within that scope if it is reasonably related to the tasks the employee was hired to perform, or reasonably foreseeable in light of the employer's business (CACI 3720). Unauthorized or even criminal conduct can qualify if it arose from a risk inherent in or created by the enterprise, even if it broke a company rule (CACI 3722). Decisions the Judicial Council cites under CACI 3722 also say there must be a causal link to the work: the employer is not liable for everything an employee does during working hours. Our guide on when an employer is responsible for an employee's attack covers this line in more depth.

The agency's own carelessness. Separately, an employer can be liable for negligently hiring, supervising or keeping an employee it knew or should have known was unfit and posed a particular risk to others (CACI 426). For a licensed home care organization, the hiring rules are written into the statute: the aide must be cleared on the registry, staff with client contact must complete the background check steps, aides must show they are free of active tuberculosis, and the organization must tell the State when an aide leaves (Health and Safety Code 1796.43). Aides are fingerprinted for a state and federal criminal record search (Health and Safety Code 1796.23).

The Elder Abuse Act's extra remedies. When physical abuse or neglect is proven with recklessness, oppression, fraud or malice, the Act requires an award of attorney's fees and costs (Welfare and Institutions Code 15657). Against an employer, though, those remedies require the standard in Civil Code 3294(b) first: the employer knew in advance the employee was unfit and employed them with conscious disregard of others' safety, or authorized or ratified the conduct, or was itself guilty of oppression, fraud or malice; for a company, through an officer, director or managing agent (Welfare and Institutions Code 15657(c)). Our guide on what the Elder Abuse Act adds to a claim explains those remedies.

Did the caregiver or the agency have to report it?

Yes. Anyone who has assumed full or intermittent responsibility for the care or custody of an elder, paid or not, is a mandated reporter (Welfare and Institutions Code 15630(a)). For abuse outside a care facility, the report goes by phone or online immediately or as soon as practicable, with a written report within two working days if it was made by phone (15630(b)(1)). Failing to report, or impeding a report, is a misdemeanor, with higher penalties if the abuse results in death or great bodily injury (15630(h)). A licensed home care organization must also report and keep a copy of each report for the State to review (Health and Safety Code 1796.42(e)). Whether a report was made, and when, can matter to what the agency knew. The county offices that take these reports are listed on our Sonoma County page.

Was the agency even licensed?

A business may not arrange home care services by a registered aide in California before obtaining a home care organization license, and the State Department of Social Services must assess a penalty of $900 a day for unlicensed home care services (Health and Safety Code 1796.35). The Department administers the licensing law and may set up procedures to take and investigate complaints against home care organizations (Health and Safety Code 1796.11 and 1796.51). An agency that skipped licensing may also have skipped the bond, insurance and registry checks the law requires of licensed organizations.

What changes the answer?

The caregiver is a family member. A relative who has the care or custody of a parent can commit neglect (Welfare and Institutions Code 15610.57), but there is no agency behind them. When the problem is money held under a power of attorney or trust, see what to do when a relative misuses a power of attorney or trust.

The parent is under 65. The Act also protects dependent adults ages 18 to 64 with physical or mental limitations (Welfare and Institutions Code 15610.23).

The agency is a public program. A written claim to a public entity is due within six months (Government Code 911.2); see how to file an injury claim against a city, county or the State.

The parent has died. Elder abuse claims pass to the personal representative or successor (Welfare and Institutions Code 15657.3(d)); see elder abuse claims after a parent's death.

The level of proof. Ordinary negligence supports an injury claim against the caregiver and, through the scope of employment, the agency. The Act's added remedies need recklessness, oppression, fraud or malice, proven by clear and convincing evidence (Welfare and Institutions Code 15657).

The parent lives in Marin County. Reports go to the adult protective services agency where your parent lives (Welfare and Institutions Code 15630(b)(1)(F)); see our Marin County page for the local offices.

What could this look like? An example

For example, imagine an 87-year-old man in Windsor with Parkinson's disease whose family hires a home care agency for overnight help. Over three weeks his daughter notices bruises on his upper arms, he becomes afraid at bedtime, and a watch and some cash go missing. She photographs the bruises, takes him to his doctor, and reports to Adult Protective Services.

Checking the state registry, she finds the aide is listed but not affiliated with the agency that sent him, and the agency's records show it received an earlier complaint about the same aide and kept scheduling him. The aide may be liable for physical and financial abuse. The agency may be responsible for his conduct within the scope of the job and for its own negligent supervision and retention, and if a managing agent knew of the earlier complaint and kept him on with conscious disregard of clients' safety, the Elder Abuse Act's fee award could reach the agency too. The agency's dishonesty bond may respond to the theft. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do families make?

Firing the caregiver and moving on without reporting to Adult Protective Services.
Not finding out who actually employed the caregiver before the agency's records are lost.
Assuming the agency cannot be responsible because the abuse broke its rules.
Missing a public-entity claim deadline when a county program is involved.
Waiting for a doctor's visit weeks later, so injuries are never documented.

What should we do this week?

Replace the caregiver and make sure someone trusted is present.
Get a medical exam and ask for the visit notes.
Report to Adult Protective Services, and to the police for an assault or theft.
Collect the service agreement, invoices, care logs and the caregiver's full name.
Look up the aide and the agency in the state registry and license records, and save what you find.
Write a dated timeline of every injury, change in behavior and missing item.
Read our guide on elder abuse deadlines in California and mark the dates.

Frequently asked questions

Is a home care aide a "care custodian" under the Elder Abuse Act?

The definition covers employees of home health agencies, agencies providing publicly funded in-home supportive services, and other persons providing care or services for elders (Welfare and Institutions Code 15610.17). Separately, any person who has taken on the care or custody of an elder is a mandated reporter (Welfare and Institutions Code 15630(a)).

Can we sue the agency even though it did not know?

For compensatory damages, an employer can be responsible for an employee's conduct within the scope of employment without being at fault itself (CACI 3700). The Act's added remedies and punitive damages need the Civil Code 3294(b) showing.

What does the registry show?

Each registered aide's name, registration number, status, expiration date and, if applicable, the home care organization the aide is affiliated with (Health and Safety Code 1796.12(i)).

Does the agency's insurance cover abuse?

The law requires the coverage to exist: a $10,000 dishonesty bond with third-party coverage, and general and professional liability insurance of $1,000,000 per occurrence and $3,000,000 in the aggregate (Health and Safety Code 1796.42). Whether a policy pays a particular claim depends on its terms.

Can we get a restraining order against the caregiver?

Yes. An elder who has suffered abuse can seek an elder abuse protective order, and a conservator, trustee, agent under a power of attorney or, in some cases, Adult Protective Services can petition on the elder's behalf (Welfare and Institutions Code 15657.03).

How long do we have to file?

Generally two years for an injury claim (Code of Civil Procedure 335.1), four years from discovery for financial abuse (Welfare and Institutions Code 15657.7), and six months for a claim to a public entity. Our guide to California personal injury deadlines lists the exceptions.

If a parent or other older relative was harmed by a caregiver at home, contact Young Law Group today at (707) 343-0556 or through our contact page to schedule your free and confidential consultation.

Abuse by an in-home caregiver: who can be held responsible?