An overview of the underlining legal issues surrounding elder abuse.
Elder abuse has many variations and its victims may not be readily identifiable when they are involved in court proceedings. Elder abuse can be an underlying concern for cases heard in any division of the court (e.g., traffic, domestic violence, probate, family, and criminal). An elderly victim of abuse may not always be the alleged victim in a case; he or she could appear in court as a defendant or respondent, a plaintiff or petitioner, a witness, or a juror.
The following "red flags" can help judges, court staff, attorneys and others identify persons who may be experiencing elder abuse and neglect.
Signs of Physical or Sexual Abuse
- Inadequately explained fractures, bruises, welts, cuts, sores, and burns
- Elder person appears to be afraid of the caregiver
- Elder person changes to different doctors
Signs of Financial Abuse
- Elder person "voluntarily" giving inappropriate financial reimbursement for needed care and companionship
- Elder person lacks amenities he or she should be able to afford
- Caregiver has control of elder's money but is failing to provide for elder's needs
- Elder has signed property transfers but is unable to comprehend the transaction (e.g., medical and/or financial power of attorney, new will)
- Sudden changes in elder person's financial status
- Elder person changes to a different lawyer
Signs of Psychological Abuse
- Caregiver isolates the elder person
- Caregiver is aggressive, controlling, or uncaring toward the elder person
Signs of Neglect
- Elder person lacks basic hygiene
- Elder person lacks medical aids (e.g., glasses, walker, hearing aid, medications)
- Elder person hoards possessions and food
- Bed-bound person left without care
- Person with dementia left without care
Judges, court staff, attorneys and others who work with elderly persons should be familiar with three important concepts relevant to identifying and responding to elder abuse: capacity, consent, and undue influence. Elder persons can be more vulnerable to abuse and exploitation if they lack capacity to make every day decisions, to give meaningful consent based on their ability to understand the meaning of transactions, or are subject to the undue influence of trusted people in their lives. Assessing whether a person has capacity, gave consent or was under undue influence can be critical to determining whether a person is victim of elder abuse.
Capacity is a general term used to describe the cluster of mental skills, such as memory and logic, as well as behavioral and physical functioning, that people use in their everyday lives. It is not a fixed or static condition. People can have capacity for different activities and tasks, and capacity can vary across time, situations and location. Determining capacity in older adults can be very difficult and often requires gathering information from many sources, including family members, medical care professionals, mental health care professionals, adult protective service workers, and other involved parties. For more information about capacity see Establishment of Guardianships: Determination of Capacity, Capacity in Aging: Key Legal Issues, and Elder Abuse Curriculum for State Judicial Educators, Module Two.
Consent requires individuals to be able to understand the transaction or activity, make judgments about it, and decide if it is something they choose. A critical element of consent is whether the person has the capacity to consent. The capacity of older persons to consent is historically most commonly applicable in the provision of adult protective services. For additional information about consent see Consent in Aging: Key Legal Issues, and Elder Abuse Curriculum for State Judicial Educators, Module Two.
Undue Influence is the misuse of one's role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person's decision making or assets. Undue influence typically is not itself a crime, but it can be a means for committing a crime, including exploitation, fraud, domestic abuse, and sexual assault. For more information on undue influence see Undue Influence in Aging: Key Legal Issues and Elder Abuse Curriculum for State Judicial Educators, Module Two.
- American Bar Associaiton Commission of Aging: Elder Abuse Laws
- Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
- Center of Excellence in Elder abuse and Neglect, University of California, Irvine
- Judicial Determination of Capacity of Older Adults in Guardianship Proceedings
- National Adult Protective Services Association
- National Center on Elder Abuse
- National Clearinghouse on Abuse in Later Life
- NYC Elder Abuse Center, Capacity Evaluations in Elder Abuse Cases
Most states have some type of statutory requirement to report elder abuse, neglect or exploitation. Reporting requirements are complex and vary greatly from state to state. They typically are included in the state's adult protective services (APS) laws, but they also may be imbedded in other statutes and regulations. Examples of major types of variables in state elder abuse reporting provisions include:
- Categories of persons who must and who may report elder abuse (e.g., any person, specified professionals or employees of specified agencies)
- Exceptions based on privileged communications for specified professionals
- Categories of suspected victims (e.g., all persons over a specified age; only older persons with disabilities; only persons determined to be incapacitated)
- Agency or department to which reports should be made (e.g., APS agency, long term care ombudsman, law enforcement, or district attorney)
- Cross-agency reporting requirements (e.g., law enforcement to APS, APS to district attorney)
- Time limits for reporting elder abuse
- Methods of reporting (oral, in writing or both)
- Content of the report
- Immunity for good faith reporting of elder abuse
- Sanctions for failure to report and for making a false report
The American Bar Association has developed detailed charts on state elder abuse reporting requirements in APS statutes. The charts are current as of December 31, 2019. An extensive explanation of the charts provides guidance and caveats related to the use of the charts.
Judges and court employees should be knowledgeable about their state's reporting requirements. If court personnel are mandated reporters, the court should institute protocols for timely reporting to the proper agencies. Whether or not the court has statutory reporting obligations, the court should establish and nurture a good working relationship with the local adult protective services agency to promote legal and proper responses to suspected elder abuse.
American Bar Association Commission on Law and Aging: