The abuse of the elderly runs the gamut from financial scams to physical neglect to serious and even deadly brutality. The criminal laws that deal with financial misconduct and assault apply in such cases, but many states also have additional laws to specifically address elder abuse.
This article discusses state elder abuse laws generally; elder abuse laws differ from state to state.
Nursing home abuse is a type of elder abuse and is discussed in the article, Nursing Home Abuse.
Elder abuse is generally defined as physical, financial, emotional, or sexual abuse; or neglect of a person age 65 or older. (Older Americans Act, 42 U.S.C. § 3002(13) (2000).)
According to a 2000 U.S. Census report, The 65 Years and Over Population, people over the age of 65 are the fastest growing segment of the country’s population. (According to a 1998 study, The National Elder Abuse Incident Study, over 550,000 incidents of elder abuse were reported every year.) With the increase in the proportion of elders in the population, it is reasonable to predict an increase in the number of cases of elder abuse.
Any criminal law that punishes physical or other abuse applies when the victim is an elderly person, of course. However, some states have enacted statutes that expose those convicted of abuse crimes against elderly victims to enhanced penalties.
Where a person knowingly assaults an individual over the age specified in a state’s elder abuse laws (usually 65 or older), the assailant may receive an enhanced sentence if convicted. Under elder abuse laws, the state must prove that the defendant knew that the victim was within the protected age group.
The statutes covering neglect of elderly persons cover treatment by those with a duty to care for the elderly person. Elder abuse laws define what degree of neglect is required for a conviction of elder abuse. In California, for example, the state must prove “recklessness” in order to convict someone of elder abuse, which courts have determined is greater than mere negligence and amounts to “deliberate disregard” of the needs of the elderly victim. “Recklessness” requires a showing that the defendant made a conscious choice to neglect the elderly person under their care.
This standard is higher than that required to prove medical malpractice or simple negligence, in order to justify the enhanced penalty that the elder abuse statute provides.
A relative or other person bearing a duty to care for an elder may even be found liable for the criminal acts of others against an elder, as illustrated in the example that follows.
Florida Man Convicted Of Manslaughter Of Mother Committed By Brother
Two brothers, Lee and James Peterson, shared a home with and provided care for their 82-year-old mother. Lee worked long hours outside the home, so the brothers agreed that James would provide the bulk of care for their mother at home. The mother, who suffered from Alzheimer’s disease, died of peritonitis after a period during which she was bed-ridden. Doctors determined that she suffered from dehydration and severe constipation, which led to a rupture in her colon and an agonizing death. The Florida appellate court upheld the manslaughter and elder abuse convictions of both brothers, holding that Lee had a duty to care for his mother and protect her from abuse at James’s hands. (Peterson v. State, 765 So. 2d 861 (2000).)
The elderly victim or another person acting on his or her behalf may bring a civil action under the laws in some states for elder abuse. At times, relatives of the elderly victim may be able to bring an action. Such suits may seek to compel the defendant to provide for the care of a neglected elderly person or to cease abusive conduct.
The personal representative or heirs of a deceased victim of elder abuse may bring an action under the elder abuse statues in certain states and essentially stand in the capacity of the deceased. Under such laws, a person who prevails in a lawsuit claiming elder abuse may recover monies lost from the abuse, pain and suffering damages, and attorney’s fees.
Some states, such as Florida and California, impose a duty on those with the “care or custody” of elderly people to provide a specified level of care. A relative, housemate, or in-home caregiver may be subject to such a duty. “Care or custody” is not limited to physical custody or one providing direct care; rather, it includes those whose relationship to the elderly victim or to those providing direct care imposes a duty to monitor the treatment and well-being of the elderly person.
For example, a company that owns a nursing home that is not headquartered in a particular home where abuse occurs may still be held liable under state elder abuse laws for the abuse committed by its employees in the home. And, a relative of an elderly person who does not live with the elder may be found liable for neglect by an in-home caregiver. The principle is that, based on a relationship either with the caregivers or the elder, a third party may have a duty to ensure the proper care of the elder.
A common form of elder abuse involves financial scams. Telephone and internet scams have achieved notoriety in the media, and the elderly make up a disproportionate share of the victims of such scams. State elder abuse statutes outlaw such scams and provide for greater penalties for those convicted of targeting the elderly.
But elder abuse laws are not restricted to scammers trolling for trusting seniors. Elder abuse also includes coercion by relatives, heirs, trustees, lawyers, and others regarding estate planning and distribution of assets.
Some states have laws that prohibit an heir who is convicted of elder abuse or found civilly liable for elder abuse from inheriting from the estate of the elderly victim after their death (whether such inheritance would have come through provisions in a will, trust, or from a person who dies intestate). Under California’s version of this law, an heir found by “clear and convincing evidence” (a very high standard of proof) to have physically or financially abused or neglected an elderly decedent is deemed by law to have predeceased the decedent and thus is barred from inheriting any of the elderly decedent’s assets.
Elder abuse is a serious social problem that is increasingly recognized as a separate civil and criminal wrong. If you suspect elder abuse is occurring or if you have been accused of elder abuse, see a lawyer with experience in elder abuse law in your area.