Yes, you can be, although using the account is not a crime by itself. Having your name on the account does not make the money yours: under Probate Code section 5301, while all the parties are alive, a joint account belongs to each of them in proportion to what each contributed, unless there is clear and convincing evidence of a different intent. A conviction under Penal Code section 368(d) or (e) still requires proof of an actual theft, embezzlement, forgery, or fraud, including the intent that crime requires.

Whose money it is: the contribution rule

An account “belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each,” unless there is clear and convincing evidence of a different intent (Probate Code section 5301(a)). A party’s net contribution is, in general, what was deposited by or for that party, minus withdrawals by or for that party that were not paid to or used for another party, plus a share of the interest (Probate Code section 5134(a)). If there is no proof of who contributed what, the parties who can withdraw are treated as having contributed equally (section 5134(b)). That is why deposit records matter: a pension, Social Security, or sale proceeds your parent deposited count toward your parent’s share even though your name is on the account.

Being able to withdraw is a separate question. A bank may pay any party to a joint account on request and under the account’s terms, even if another party is incapacitated (Probate Code section 5402), and the ownership rules “have no bearing on the power of withdrawal” (Probate Code section 5201(a)). The bank letting you take the money does not make it yours.

What an excess withdrawal does

If you withdraw more than your own net contribution then on deposit, the difference is an “excess withdrawal” (Probate Code section 5301(f)), and your parent has an ownership interest in it, in proportion to net contributions, unless clear and convincing evidence shows a contrary agreement between you (section 5301(b)). Only a living party, or a conservator, guardian, or agent acting for one, may claim recovery of that interest, and a court may reduce the recovery to reflect money withdrawn and used for the claiming party’s benefit (section 5301(c)).

How this connects to the criminal charge

The ownership rules are civil law. The Probate Code says they are relevant only to disputes among the account’s parties and their creditors and successors (section 5201(a)); they do not define a crime. The criminal charge requires proof that you committed theft, embezzlement, forgery, or fraud, and that the property taken was owned by an elder, meaning someone 65 or older (CALCRIM No. 1807; Penal Code section 368(g)). How a criminal court applies section 5301 to that ownership question is something to raise with your lawyer, but the same facts, who deposited what and what your parent intended, are relevant to both.

Section 368(d), written for people who are not caretakers, requires proof that you knew or reasonably should have known the owner was an elder. Section 368(e) covers a caretaker who commits the same offenses against that elder’s property, and there the prosecution proves caretaker status instead (CALCRIM No. 1807). A “caretaker” is a person “who has the care, custody, or control of, or who stands in a position of trust with” an elder or dependent adult (Penal Code section 368(i)), so an adult child who manages a parent’s money, even informally, may qualify regardless of what the signature card says.

Both subdivisions carry the same ranges: a wobbler, with a felony term of 2, 3, or 4 years under Penal Code section 1170(h), when the value taken exceeds $950, and a misdemeanor when it does not. For a felony involving a loss over $50,000, Penal Code section 12022.6 can add consecutive time, but only if that allegation is charged and admitted or found true.

When you believed the money was yours

Ownership also bears on intent. Someone who openly takes property, or a specific amount of money, honestly believing they have a right to it, does not have the intent theft requires, and the belief can count as good faith even when it is wrong or unreasonable (CALCRIM No. 1863). There are limits. Jurors may reject the belief if you knew facts that made it completely unreasonable, and the defense does not cover a taking you tried to hide, or money taken to offset or pay a claim against your parent whose amount was undetermined or disputed. For embezzlement, Penal Code section 511 gives a similar defense for property appropriated openly under a good faith claim of title, but not for keeping someone else’s property to offset or pay what that person owes you.

Evidence that actually matters in a joint-account case

  • Records of who deposited what over time, compared with what you contributed yourself.
  • Any documented sign of your parent’s intent for the account, such as estate planning documents, a note, or messages, since clear and convincing evidence of a different intent can override the contribution rule.
  • What the withdrawn money paid for: your parent’s own bills, care, or needs, or your separate expenses.
  • Whether the withdrawals were made openly, and what you believed about your right to the money at the time.
  • Whether your role, such as managing your parent’s day-to-day money or care, could make you a caretaker.
  • Whether your parent, or anyone with authority to act for them, objected while your parent was still able to do so.

For defenses based on authorization, capacity, and undue influence, see financial elder abuse. For a related theft-based charge against an elder’s property, see theft from an elder, and for the elder abuse statute generally, see elder abuse.

If you are being investigated or charged over money spent from a joint account you shared with a parent, the Law Offices of David S. Chesley can review the account records and contributions with you. Call (800) 755-5174.