Statutory protections are written laws passed by a legislative body, such as Congress. As a class of people, elderly people are federally protected. For example, under the Nursing Home Reform Act of 1987 passed by the federal government, all nursing home facilities must follow federal guidelines and meet a certain standard of care. Additionally, the Act gave nursing home resident’s additional legal rights.
In addition to federal law protections, state laws also afford the elderly additional protections. Elderly statutory protections are a specific set of laws that both protect the elderly from conduct that may cause them harm and give them the legal right to file civil claims against violators of those laws.
All states have elderly statutory protections regarding the abuse or neglect of the elderly, and in most states both are crimes. However, what qualifies as a violation in one state may not in another, as statutes and definitions vary by state. Typically, the bulk of elderly statutory protections deal with long-term care in a nursing home facility.
However elder laws also cover other areas, including:
- Nursing home policies that violate residents’ rights to a safe environment;
- Nursing home fraud;
- Discrimination against long-term care facility residents;
- Instances of abuse against long-term care facility residents, including physical or emotion acts of harm;
- Neglect of the elderly; and
- Issues involving health care related matters, such as Medicare or Medicaid.
Importantly, every state has a state adult protective services agency in which any and all allegations of elder abuse, exploitation, or neglect can be reported to. In fact, in most states it is mandatory that such allegations be reported. After a violation of an elderly statute has been reported, the protective services agency will investigate the allegations.
If an investigation leads to a finding that a statute has been violated, the agency will provide the victim a remedy to the problem, such as providing them medical assistance or transfer to a different residential setting that can meet their needs. However, if the victim feels that the remedy provided by the agency is insufficient, then the victim may then pursue a civil action against the violator.
Common remedies for violations of elderly statutes include:
- Injunctions where the victim seeks the state to order the violator to cease doing something or to make restitution to the victim. For instance, in the case of nursing home neglect, a court may order that the nursing home provide adequate care for the resident;
- Rescission of any fraudulent transactions that harmed the elder;
- Claims for pain and suffering damages;
- Damage awards for attorney fees;
- Compensatory damages, such as the payment of all medical bills that resulted from the abuse or neglect of the elderly person; or
- Punitive damages, which are damages that are imposed in order to punish the violator of the statute for outrageous conduct.
As mentioned above, violations of elderly statutory protections can be considered both a civil and criminal offense. This means that elder abuse usually always involves criminal charges. Criminal penalties for violating elder statutory protect laws may include fines, imprisonment, or both. Additionally, it is a crime in many states to fail to report elder abuse that you witnessed or had knowledge of, especially if the victim was under your duty of care.
Although every state has statutes regarding elder abuse and neglect, many states also have statutes that given victims the legal right to sue if they have been exploited. Elder exploitation occurs where an individual, long-term care home, employer, or other party that stands in a place of trust with the elderly person takes advantage of that elderly person. Typically, elderly statutory protections on exploitation deal specifically with financial exploitation.
Common examples of elder exploitation include, but are not limited to the following:
- Stealing or misusing the assets of the elderly person;
- Forging the elderly person’s signature to write checks without their permission;
- Inducing or deceiving an elderly person into signing a document in which they are not aware of the contents;
- Improperly using one’s status as a legal guardian, conservator, or holder of a power of attorney to take the assets of an elderly person and use them for their own benefit; or
- Otherwise taking advantage of the disability or lack of mental capacity of an elderly person to obtain control of their property.
Penalties and criminal charges for exploitation of an elderly person vary by state. Criminal charges range from misdemeanor charges, where the value of the property illegally obtained is small, to felony charges, where the value of the property illegally obtained is large. Additionally, the victim of exploitation (or their legal guardian) will also have the legal right to take civil action against the violator, and sue them for civil damages.
As can be seen, statutory protections for the elderly have expanded in recent years, and cover several different areas of law. Thus, if you or your loved one needs assistance with elder laws, it is in your best interest to contact a well qualified and knowledgeable elder law attorney.
An experienced personal injury attorney will be able to advise you on your best legal course of action. Additionally, they will be able to file a civil suit against the violator on your behalf, as well as represent you in court, if necessary.