As they age, older people tend to be invisible to society; however, this is not the case when it comes to the law. One of the lesser known laws is elder law, which is designed to protect the hundreds of thousands of older people who are abused and neglected every year. An adult who falls within this category is someone who's 60 years or older.
What Constitutes Elder Abuse
The term "elder abuse" refers to any intentional or negligent act that causes harm to a vulnerable person. It is generally perpetrated by trusted individuals, including family members and private caregivers, as well as nursing home staff. The victims of elder abuse tend to be frail and thus vulnerable, and are dependent on others to take care of their basic needs.
Elder abuse may be perpetrated in the family home, a public location or a nursing home, and can take occur in many different forms that may result in personal injury. All 50 states have passed legislation aimed at preventing elder abuse in its various guises. The relevant laws and definitions of terms vary considerably between states, but in general they include:
- Emotional Abuse – Exposing a vulnerable elder to mental pain, anguish, fear or distress through verbal acts such as name calling, belittling, shouting, swearing or being disrespectful. It can also include non-verbal acts, for example threatening or intimidating behavior, refusing to speak to the older person, and isolating them from friends and family or recreational activities.
- Physical Abuse – Causing physical pain or personal injury to a dependent adult, for example by pushing, slapping, kicking or beating. Physical abuse is also caused by applying physical restraints such as tying or chaining the vulnerable elder, or by the improper use of medicines to restrict the victim’s ability to defend themselves.
- Sexual Abuse – Covers engaging in non-consensual sexual contact of any kind with the senior. This includes rape, sodomy or coerced nudity, in addition to inappropriate touching or photographing of the elderly victim, or forcing them to watch pornography.
- Neglect – Occurs when caregivers with a responsibility to care and protect a dependent elder fail in their duties. In nursing homes, elder neglect can range from the failure to provide food, water, clothes, shelter and medicine, to the failure to help with personal hygiene and daily activities such as taking the elder for walks. Some acts of negligence in nursing homes may be unintentional, where the caregiver is overwhelmed or lacks the relevant knowledge and maturity to handle the challenge of the role. Neglect can also arise when the caregiver is in charge of managing the dependent adult’s money, for example they are authorized to pay bills and fail to do so.
- Financial Exploitation – Covers the appropriation of the elder victim’s money or assets. In some cases of elder exploitation, the caregivers abuse their legal authority (gained via power of attorney, guardianship or conservatorship) to conceal or misuse the funds and assets of the older person. Financial elder exploitation can involve fraud, forgery and forced property transfers, as well as denying the older person access to their own money or home. Financial abuse of elders in nursing homes can be perpetrated by caregivers who have become trusted confidantes of their victims, and so the crime may go unnoticed for years.
- Abandonment – Concerns the desertion of a dependent elder by the person who has assumed the responsibility for their custody and care. Generally, the abandonment is purposeful and permanent; for example, the elderly person is left by family at a hospital or nursing home, and the relatives or caregivers never return. Older people who have been abandoned at nursing homes face an increased risk of some form of personal injury.
Laws Regarding Elder Abuse and Protection for Dependent Adults
Both federal and state laws address elder abuse, elder neglect and elder exploitation. The two main federal laws are as follows:
1. The Elder Justice Act of 2009 (EJA), which authorizes $100 million in federal funding provided for state and local adult protective services (APS) programs. Additionally, $25 million was authorized for APS demonstration programs. The EJA also provides additional support for the Long-Term Care Ombudsman Program; creates elder abuse forensic centers; authorizes an Elder Abuse Coordinating Council for federal agencies as well as an expert public Advisory Board on Elder Abuse, Neglect and Exploitation; and requires the reporting of crimes in long-term care facilities to law enforcement.
2. The Older Americans Act of 1965 (OAA) provides federal funding for the National Center on Elder Abuse (NCEA), a program of the U.S. Administration on Aging. The intent of the OAA is to promote the dignity of older adults by providing services and support that enable them to remain independent and engaged citizens within their communities. In addition to elder abuse prevention and caregiver support, this law supports a range of home and community-based services, such as meals-on-wheels and other nutrition programs, in-home services, transportation and legal services.
State law provides the primary source of sanctions, remedies and protections related to elder abuse. Where there are any suspicions of elder abuse in nursing homes, it is prudent to retain a personal injury lawyer or an elder law specialist to provide advice and guidance on any possible personal injury claim.
States address elder abuse in multiple statutory areas, including APS laws, criminal codes, probate and trusts and estates codes, family law and civil remedies. Statutory schemes vary widely and in most states, the laws related to elder abuse are contained in several code sections.
All states have general criminal statutes on assault, battery, sexual assault, theft, fraud and other offenses that can be applied in cases of elder abuse. Many states have specific crimes against family members. A few states provide increased penalties for victimizing older adults. Some states specify elder abuse as one or more separate crimes. Several states have recently targeted financial exploitation of older persons, for example requiring financial institutions to report suspected financial abuse of older persons to APS or law enforcement within 24 hours of the suspicious activity. Other states have amended their elder abuse statutes to include undue influence as an act that, when committed against an elderly or disabled person, constitutes the crime of financial exploitation.
The abuse of legal authority to act on behalf of an elder—such as powers of attorney, guardianship or conservatorship—may be criminal. Depending on the state's law, it may be treated as larceny, theft, embezzlement, elder financial abuse, forgery, financial exploitation or fraud.
Civil remedies for particular types of elder abuse are available in most states under statutory and case law. For example, all states provide civil remedies for domestic abuse. Examples of other civil remedies include civil liability for identity theft, financial exploitation and deceptive practices; petition for access to an elderly person; and removal of a durable power of attorney for health care and/or a durable power of attorney for finances.
Probate Codes or Trusts and Estates Statutes
Most states address elder abuse and neglect under probate laws, trusts and estates laws, or both. These laws are designed to protect the safety and financial interests of elderly, disabled or vulnerable adults. All states provide the protection of adults with some impairment of capacity through guardianship of the person, guardianship of financial matters and/or property, and conservatorship.
Reporting and Responding to Elder abuse
Elderly victims are often reluctant or slow to report abuse or personal injury because they love and trust the abuser and/or are dependent on them for basic care. The Administration on Aging, a part of the U.S. Department of Health & Human Services, provides useful information on what to do if elder abuse is suspected.
All states have adult protective services (APS) or elder protective services (EPS) statutes that authorize and regulate the provision of services in cases of elder abuse. Some states have both EPS and APS statutes, and some states have more than one APS law. These statutes set up systems for reporting and investigating suspected elder abuse and for delivering services to vulnerable victims. The American Bar Association’s resources on elder abuse present comprehensive information about state adult protective services laws and legislative updates.
Eligibility for APS services is typically based on a statutorily defined disability, vulnerability or impairment, not solely on the age of the adult. Eligibility criteria and definitions of those criteria vary widely across the states, and professionals involved in the justice system response to elder abuse should be familiar with their state's threshold eligibility requirements for adult protective services. The American Bar Association’s Commission on Law and Aging has compiled a thorough explanation of the eligibility criteria for adult protective services.
Elder Abuse in Long-Term Care Facilities
Elder abuse is often a hidden crime that may result in poor health, financial ruin and even wrongful death in long-term care facilities. The Elder Justice Act (EJA) makes provisions regarding vulnerable elders for the owners, operators and employees of long-term care facilities. Such a facility is a residential care provider that arranges for, or directly provides, long-term care. Long-term care is defined as supportive and health services for individuals who need assistance due to the loss of capacity for self-care due to illness, disability or vulnerability. These include: nursing facilities, skilled nursing facilities, inpatient hospices and intermediate care facilities for the mentally disabled, but does not include assisted living facilities.
The crime of elder abuse can go unnoticed in nursing homes, as not all forms of abuse cause personal injury and leave physical marks such as bruises. There may, however, be other signs of harm such as the victim demonstrating unexplained or uncharacteristic changes in their behavior, for example becoming uncommunicative, fearful or suspicious of others. Caregiver neglect in nursing homes will be particularly apparent when the elderly victim’s basic hygiene has not been addressed, or when the person appears to be hungry or thirsty. Other signs include weight loss and pressure bedsores.
The EJA requires long-term care providers to report any reasonable suspicion of crimes committed there to the Department of Health & Human Services. Individual owners, managers, employees and contractors are mandated to report suspected cases of elder abuse. Individuals face fines of up to $300,000 for failing to report a suspected crime. Individuals may also be excluded from participation in any federal healthcare program. Facilities face exclusion from federal funding for retaliation against anyone reporting suspected criminal acts. The penalties for a facility that retaliates against a staff member who reports a crime can be a fine of up to $200,000.
Long-Term Care Ombudsman Program
All states also have statutes establishing a Long-Term Care Ombudsman Program. These programs advocate for the rights, safety and other interests of residents in long-term care facilities. Usually, programs are administered under a state or local office on aging. Some states also have separate statutes that address abuse, neglect and exploitation of residents in long-term care facilities.
Capacity and Consent
Often, the perpetrator will claim that the dependent adult consented to the elder abuse. It then becomes important to assess the elderly victim’s capacity or incapacity to consent at the particular time. Undue influence by the caregiver may vitiate consent when it involves deceit or the use or threatened use of force.
Dementia sufferers are particularly vulnerable to abuse, as they are unlikely to be in a position to give informed consent or to recall the decision. Sometimes, prosecuting lawyers will need to have the victim evaluated by professionals to assess their capacity. If the victim is unavailable or deceased, the experts will assess medical records and speak to witnesses who may have knowledge of the victim's behavior, level of functioning, independence and decision-making ability.
Criminal Penalties for Elder Abuse
Each type of elder abuse may involve complicated legal, evidentiary or medical issues that require a significant amount of training and expertise in order to successfully recognize, investigate and prosecute it.
Sentencing should have the dual purposes of protecting individuals from further abuse and providing justice in the particular case. Penalties will vary by state, and will also be dependent on whether the circumstances of the abuse were particularly heartless or heinous, and whether the perpetrators have a criminal history.
In deciding what crime to charge, prosecutors will look at elder-specific state laws and procedures. If a dependent adult is specifically targeted based on their age, this may meet the requirement of the state’s elder law. Not all states have specialized elder abuse statutes, so the prosecutor will also investigate whether the relevant state provides sentencing enhancements or special findings in elder abuse cases.
The prosecutor will always consider charging general common law or statutory crimes. A charge of burglary is possible if the burglar enters the elderly victim’s home or bank for the purpose of financial exploitation. If an older adult dies from abuse or neglect, then the crime may be manslaughter or murder. The sentences on such convictions could range from months to many years in prison, or even life imprisonment.