Elder Neglect Laws

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 Who is Considered to be an Elder?

Pursuant to federal laws including the Older American Act (OAA), an elder is defined as any individual who is at least sixty years of age. The state definition of an elder individual may vary.

However, the majority of states define an elderly individual as an individual over 65 years of age. In addition, disabled individuals who are over the age of majority, which is 18 years of age in most states, may, in some cases, be classified as an elder under both state and federal laws.

What is Elder Neglect and How is it Different From Elder Abuse?

Elder neglect occurs when an individual who is responsible for providing care to an elder fails to provide the proper care to the elder. A victim of elder neglect is most often a senior citizen who lives in a care home facility and is unable to care for themselves on a daily basis.

As previously noted, elderly individuals are typically over 60 years of age. Some states, however, define an elder as an individual who is over the age of 65. In many cases, elder neglect is mentioned in conjunction with elder abuse.

However, numerous jurisdictions distinguish between elder neglect and elder abuse. Neglect implies that a victim was neglected and did not receive the proper care and attention.

Elder neglect usually involves violations which are omissions or failure to act. Examples of elder neglect may include:

  • Failure to provide the basic necessities for the elderly individual, such as:
    • food;
    • water;
    • clothing; and
    • shelter;
  • Failure to administer medicines or treatments to the elder according to the instructions of their physician;
  • Allowing the elder to live in living conditions that are:
    • unreasonable poor;
    • uninhabitable; or
    • unsuitable; and
  • Failure to communicate important information to another individual as requested by the elder, especially when the failure results in the physical harm of the elder.

The majority of state laws define elder abuse as actions that result in physical harm to the elder or striking the elder. It may also include mental or emotional harm imposed on the elder.

In addition, some laws include non-consensual sexual contact in the definition of elder abuse. This type of abuse may be further classified as passive or active abuse.

Passive abuse occurs when a caregiver’s accidental negligence results in abuse of the elder. Active abuse occurs when a caregiver intentionally fails to meet the needs of the elder.

Active abuse occurs most often when there is hostile tension between an elder and a caregiver. Active abuse typically results in criminal charges.

In the majority of cases, in order for a claim to be actionable, an elder must have suffered some type of physical or economic harm, which may include bodily harm or the loss of property. Emotional injuries may be the subject of a lawsuit in certain states.

Emotional injuries, however, are typically more difficult to prove unless a physical injury resulted from the emotional distress.

Who Can be Held Liable for Neglect?

In general, any individual who is charged with caring for an elder can be held liable for their neglect. Individuals who may be legally charged with these duties include:

  • Nursing home staff;
  • Caregivers who live with the elder;
  • Those who provide respite care;
  • Medical professionals; or
  • Relatives or friends who have assumed legal responsibility for the elder.

It is important to note that it may be a violation to attempt to render care to an elder if an individual has not been authorized to do so.

Is it Required to Report Elder Abuse?

Most state laws require any individual who has witnessed elder abuse to report the incident to the appropriate agency. Individuals who are required to report abuse include:

  • Health care professionals;
  • Human services professionals;
  • Law enforcement personnel; and
  • Long-term care facility employees.

The individuals listed above are required to make a report when they are presented with a claim of elder abuse or neglect. Any individual who is responsible in some way for the care of an elder should make a report if they reasonably believe that the elderly individual has suffered abuse.

The majority of state laws require any individual who witnesses elder abuse to report the incident to an appropriate agency. Individuals who are required to make reports include:

  • Health care and human service professionals;
  • Law enforcement personnel; and
  • Long-term care facility employees.

Other individuals who may be required to report elder abuse include financial contributors, such as bankers, as well as religious clergy members. Generally, an individual who is responsible in some way for the care of an elderly individual should make a report if they reasonably believe that an elderly individual has been subjected to abuse.

Failure to report elder abuse or neglect is considered a misdemeanor crime in the majority of states. A charge of criminal elder abuse may result in a monetary fine, a short jail sentence, or both.

In addition, in some jurisdictions, if an individual has a duty to report the abuse or neglect but fails to do so, they may be sued by the elder or the family of the elder. The offender may then be liable for the victim’s losses and may be required to pay costs, including hospital bills and attorney’s fees.

Would My Elder Abuse Report Be Confidential?

Any individual can make a report regarding elder abuse which has occurred and it can be kept confidential. In many cases, there are hotlines and support phone lines that individuals may call without providing any personal information if they need to report elder abuse.

What Else Should I Know About Elder Law?

In order to establish a lawsuit against the caretaker of an elder, a plaintiff is required to determine what type of personal injury the caretaker caused. In negligence claims, a plaintiff would be required to prove the following elements:

  • The defendant had a duty of care to the elder who was harmed or neglected;
  • The defendant breached their duty by harming or neglecting the elder;
  • The elder receiving the care was actually harmed by their caretaker; and
  • The caretaker’s actions resulted in specific injuries.

If an elder is a resident of a nursing home, the Nursing Home Residents Bill of Rights, established by the Nursing Home Reform Act, provides the elder with rights, including:

  • The right to be free from abuse;
  • The right to privacy;
  • The right to make a complaint against the nursing home without facing retaliation or discrimination; and
  • The right to be treated with dignity.

In addition, it is important for individuals to be aware of the signs of nursing home abuse, which include:

  • Bruises, bedsores, or other injuries;
  • Excessive, unexplained weight loss;
  • Dehydration; or
  • Unclean conditions.

Do I Need an Attorney for Help with Elder Neglect Laws?

Yes, it is essential to have the assistance of an elder law attorney for any issues, questions, or concerns you may have related to elder neglect laws. Elder laws may vary from state to state.

If you suspect that an elderly individual is being neglected or abused, your attorney can advise you of your state laws as well as help you determine what options may be available in your case. Your attorney will also represent you in court when you are required to appear.

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