An overview of elder abuse.
Elder abuse is:
“any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to a vulnerable adult” - the Administration for Community Living.
State definitions vary from law to law and state to state. Every state has an adult protective services law with their own definitions, and many states have other relevant criminal or civil laws.
Typical definitions characterize elder abuse as:
(1) intentional or negligent action that
(2) causes harm, serious risk of harm, or distress to
(3) vulnerable older persons.
Some definitions also require a relationship of trust between the older person and the abuser. Others restrict the term to "vulnerable adults or elders."
Although overarching legal definitions vary from state to state, many states incorporate the same types of abuse into their criminal and civil statutes.
Examples of each type of abuse include but are not limited to:
Elder abuse has many variations and its victims may not be readily identifiable when they are involved in court proceedings. It is critical that judges, court staff, attorneys, and any others court-involved professionals know how to spot elder abuse in any situation.
The following "red flags" can help identify persons who may be experiencing elder abuse and neglect.
Elder abuse may be the subject matter of or a legal issue in criminal, civil, family or probate cases. Jurisdiction for a case involving elder abuse therefore could lie in a variety of courts or divisions of courts. Elder abuse also may be an underlying issue in cases in which elder abuse is not the substantive issue before the court.
Criminal cases. In some states, elder abuse is a specific crime defined in the criminal code and therefore may be before the court explicitly as an elder abuse case. In all states, an older person could be the victim of any offense set out in a state's criminal code, including assault, battery, sexual assault, theft, fraud, and financial exploitation.
Civil cases. In all states, elder persons may seek a civil order of protection against domestic abuse by a family member. Elder abuse also may be a factor in civil claims for damages or other relief from identity theft, financial exploitation, undue influence, fraud, and deceptive practices. Other civil actions that may involve elder abuse include petitions for access to an elderly person and petitions for removal of durable power of attorney.
- Power of Attorney (POA) abuses are a topic of increasing concern for the court community. An exploratory study, Addressing Power of Attorney Abuse: What Courts Can Do to Enhance the Justice System Response, describes several measures that state courts can take to more effectively address POA abuse.
Probate and guardianship cases. Elder abuse is potentially an issue in cases that fall under a court's probate jurisdiction. One of the purposes of probate courts is to protect the safety and financial interests of elderly, disabled or vulnerable adults. Elder abuse and financial exploitation may be issues across the range of cases heard in probate courts, including amendments of wills and trusts, exercise of power of attorney, guardianship of the person, guardianship of the estate or property, and conservatorship.
Both federal and state laws address elder abuse, neglect and exploitation, but state law is the primary source of sanctions, remedies and protections related to elder abuse. Several tribes also have codes that address elder abuse (see the Native Indigenous Elder Justice Initiative for information on tribal codes and other resources). This page provides a brief overview of the major areas of federal and state law related to services for elder abuse victims, crimes against older persons, and civil remedies for elder abuse, neglect and exploitation.
Federal Laws. A few federal laws relate specifically to elder abuse and neglect, but none of these laws provides broad regulatory mechanisms for state or local programs established specifically to support services for victims of elder abuse. Until the recent passage of the Elder Justice Act of 2009, federal law authorized little funding to states and local agencies for identification, prevention or remediation of elder abuse (see Elder Justice Act of 2009, below). Federal criminal law aimed to address elder abuse is limited, although legislation is pending that would significantly increase federal resources to respond to crimes against the elderly (see Elder Abuse Victims Act, below). Some examples of federal laws applicable to elder abuse are summarized here.
Elder Justice Act of 2009 was enacted in March 2010 as part of the Patient Protection and Affordable Care Act (H.R. 3590; P.L. 111-148). The Elder Justice Act coordinates federal elder abuse detection and prevention programs within the Office of the Secretary of Health and Human Services. The Act establishes an Elder Abuse Coordinating Council, composed of federal department and agency heads or designees, and an Advisory Board on Elder Abuse, Neglect, and Exploitation, composed of 27 members of the public with expertise in elder abuse prevention, detection, treatment, intervention or prosecution. To date, Congress has provided only limited funding for the Act. For updates on appropriations, see Elder Justice Coalition.
The Elder Justice Act authorizes funding in several areas, including (1) stationary and mobile elder abuse forensic centers to develop forensic markers, methodologies for intervention, forensic expertise, and capacity to collect forensic evidence; (2) enhancement of long-term care through programs to recruit, train and retain long-term care staff; programs to improve management practices; and adoption of standards for electronic exchange of clinical data; (3) grants to enhance the provision of adult protective services by state and local agencies and to conduct demonstration programs to test training on and methods to detect and prevent elder abuse and financial exploitation; (4) grants to support long-term care ombudsman programs; (5) evaluations of grant funded activities; and (6) a national institute for training, technical assistance, and development of best practices to improve investigations of elder abuse reported in long-term care facilities.
The Act also requires owners, operators and employees of long-term care facilities to report suspected crimes committed there and to provide 60 days written notice to the HHS Secretary and the state of a facility's impending closure. The notice must include a plan for transfer and adequate relocation of all residents. Another provision of the Patient Protection and Affordable Care Act requires the HHS Secretary to establish a nationwide program for national and state background checks on prospective direct patient access employees of long-term care facilities and providers.
The Older Americans Act (42 U.S.C. 3001 et seq.) contains definitions of elder abuse and authorizes federal funding for the National Center on Elder Abuse (NCEA), a program of the U.S. Administration on Aging. The NCEA has collaborated with several organizations to promote and support elder abuse awareness initiatives, multidisciplinary responses to elder maltreatment, and professional training and education. The NCEA partners for 2011-2013 are the University of California Irvine's Center of Excellence on Elder Abuse & Neglect and the University of North Dakota's Center for Rural Health Native Indigenous Elder Justice Initiative (NIEJI). The NCEA NIEJI focuses attention on developing culturally appropriate information and community education materials on elder abuse, neglect and exploitation in Indian Country. NCEA partners from 2007-2011 were the University of Delaware's Clearinghouse on Abuse and Neglect of the Elderly (CANE), the National Committee for the Prevention of Elder Abuse, and the National Adult Protective Services Association.
Violence Against Women Act established federal domestic violence crimes that may be applied in cases of elder abuse. These federal crimes are limited, however, to abuse that occurs in the federal territories or involves crossing state, federal or tribal boundaries to commit or attempt to commit a crime of violence against an intimate partner (18 U.S.C. 2261), to stalk or harass (in person or by mail or computer)(18 U.S.C. 2261A), or to violate a qualifying protection order (18 U.S.C. 2262).
The Enhanced Training and Services to End Violence and Abuse of Women Later in Life Program (42 U.S.C. 14041a), is a section in the Violence Against Women Act of 2005. The Office on Violence Against Women (OVW) administers this relatively small program, which offers discretionary grant funding for training and services to address elder abuse, neglect, and exploitation involving victims who are 50 years of age or older. In FY 2011 OVW awarded 9 grants totaling $3.3 million.
Elder Abuse Victims Act of 2009 (H.R. 448, S. 1821) would authorize federal grant funding for training state and local prosecutors, courts, and law enforcement personnel handling elder justice-related matters. It also would establish the Elder Serve Victim grant program to facilitate and coordinate emergency services to victims of elder abuse. These provisions were removed from the Elder Justice Act of 2009, enacted in March 2010. The Elder Abuse Victims Act of 2009 has been pending in the Senate Judiciary Committee since February 2009.
State Laws. States address elder abuse in multiple statutory areas, including adult protective services 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 may be embedded in several code sections. The major categories of state laws addressing elder abuse are summarized below.
Adult protective services. 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 victims. See the American Bar Association Commission on Law and Aging for extensive information about state adult protective services laws and legislative updates.
Eligibility for APS services typically is based on a statutorily defined disability, vulnerability or impairment, not solely on the age of the adult. In three states (Massachusetts, Oregon, and Wisconsin), separate code sections apply exclusively to older persons, as defined by the statute. Eligibility criteria and definitions of those criteria vary widely across the states and acquiring an adequate understanding of the requirements can be challenging in some states. Judges, prosecutors, attorneys and other 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 ABA Commission on Law and Aging has developed detailed charts on threshold eligibility criteria for adult protective services.
Long-Term Care Ombudsman Program and institutional abuse laws. All states also have statutes establishing a Long-Term Care Ombudsman Program. These programs advocate for the rights, safety and other interests of long term care facility residents. Programs typically are administered under a state or local office on aging. Approximately 15 states also have separate statutes that address abuse, neglect and exploitation of residents of long term care facilities and other institutions. See the ABA Commission on Law and Aging for a list of statutes current as of December 31, 2006 (Adult Protective Services, Institutional Abuse and Long Term Care Ombudsman Program Laws: Citations by State).
Criminal codes. 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 (e.g., Virginia and Texas). A few states provide increased penalties for victimizing older adults (e.g., California, Connecticut, Indiana, and Florida). Some states specify elder abuse as one or more separate crimes (e.g., California Penal Code 368, Missouri, Florida's Chapter 825: Abuse, Neglect, and Exploitation of Elderly Persons and Disabled Adults, and Nevada's Abuse, Neglect, Exploitation or Isolation of Older Persons and Vulnerable Persons). For information about the prosecution of elder abuse crimes see Prosecuting Elder Abuse Cases: Basic Tools and Strategies.Several states recently have targeted financial exploitation of older persons. In 2012, for example, Maryland enacted a law (S. 941) requiring financial institutions to report suspected financial abuse of older persons to APS or law enforcement within 24 hours of the suspicious activity. Missouri amended its elder abuse statute (S. 689) to include undue influence as an act that, when committed against an elderly or disabled person, constitutes the crime of financial exploitation.
Civil remedies. 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. See WomensLaw.org for information about and links to state domestic violence laws, including criminal statutes and civil protection orders. 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 durable power of attorney.
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 protections of adults with some impairment of capacity through guardianship of the person, guardianship of financial matters and or property, and conservatorship. These laws are explained in greater detail under Guardianships Laws.