Elderly Statutory Protections

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 What Are Elderly Statutory Protections?

Statutory protections are written laws passed by legislatures, such as Congress. Elderly statutory protections are laws that offer various protections to elderly people. As a class, elderly people are federally protected, for example, by the federal Age Discrimination in Employment Act (ADEA), which forbids discrimination against people 40 and older.

Another example is the federal Nursing Home Reform Act of 1987, which requires all nursing home facilities to follow federal guidelines that require these facilities to provide every nursing home resident with certain services and meet a prescribed standard of care. Additionally, the Act gives nursing home residents certain legal rights.

For example, the Nursing Home Reform Act (NHRA) specifies the services that nursing homes are required to provide to their residents. The NHRA also sets standards that the care provided must meet. Some of the services that must be provided are as follows:

  • Assessments: An assessment of every patient must be made periodically;
  • Care Plans: The home must prepare a comprehensive care plan for every patient;
  • Nursing Services: Patients must be provided with nursing services;
  • Social Services: Patients must be provided with social services;
  • Rehabilitation Services: Patients must be provided with rehabilitation services;
  • Pharmacy Services: Patients must be provided with pharmacy services;
  • Dietary Services: Patients must be provided with dietary services; and,
  • Social Worker: If the home has over 120 beds, there must be a full-time social worker on staff.

Each state has to certify that the nursing home facilities in that state substantially comply with these requirements of the NHRA. If a nursing home facility fails to comply, the state may impose measures such as monitoring, putting temporary management in place, denying the home Medicare or Medicaid payments, requiring fines, and even terminating any agreement with the state.

A person who wants to report elder abuse in a nursing home can call a toll-free hotline telephone number in their state. Every state has one. People who suspect abuse should listen to their elderly family member or friend when they discuss their care, ask for details and take notes. Then, the person should report their concerns to a doctor they trust or report what they have heard to the toll-free hotline.

In addition to the protection offered by federal laws, state laws also afford the elderly some protection. 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.

What Are Common Statutory Protections for the Elderly?

All states have statutes that offer protections and aim to prevent abuse and neglect of the elderly. In most states, abuse and neglect of elderly people are crimes, just as abuse and neglect of minor children can be crimes. However, what qualifies as a violation in one state may not be in another, as statutes and definitions vary by state.

Many state statutes that protect the elderly have addressed the issue of long-term care in nursing homes and other facilities.

However, elder laws also cover other areas, including the following:

  • Safe Environment: Nursing home policies that violate residents’ rights to a safe environment;
  • Fraud: Nursing home fraud;
  • Discrimination: Discrimination against long-term care facility residents;
  • Abuse: Instances of abuse against long-term care facility residents, including physical and mental abuse that causes harm;
  • Neglect: Neglect of the elderly; and
  • Medicare and Medicaid: Issues involving healthcare-related matters, such as Medicare or Medicaid.

What Remedies Are Available for Violations of Statutes That Protect the Elderly?

Importantly, every state has a state adult protective services agency to which all allegations of elder abuse, exploitation, or neglect can be reported. This is for reports of abuse, exploitation, or neglect in private residences and acts that may occur in nursing homes or other facilities. In most states, such allegations must be reported just as some people are mandated to report child abuse and neglect, e.g., teachers.

After a violation of an elderly statute has been reported, the state’s protective services agency will investigate the allegations.

If an investigation finds that a statute has been violated, the agency should offer the victim a remedy to the problem, such as providing them with 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 pursue a civil action against the violator. If the agency determines that an elderly person has been the victim of criminal conduct, they would report it to the local prosecuting authority.

Common remedies for violations of statutes aimed at protecting the elderly include the following:

  • Injunctions: A victim asks a court 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: Fraudulent transactions that harmed the elderly person are reversed;
  • Pain and Suffering Damages: Claims for pain and suffering damages;
  • Attorney’s Fees: Damage awards for attorney fees;
  • Compensatory damages: These include the payment of all medical bills and compensation for other losses that resulted from the abuse or neglect of the elderly person; or
  • Punitive Damages: These are rarely awarded in exceptional cases to punish the violator of the statute for outrageous conduct.

As mentioned above, violations of elderly statutory protections can be considered civil and criminal offenses in some cases. Criminal penalties for committing crimes against elderly people could involve the payment of fines, imprisonment, or both. Additionally, in many states, it is a crime to fail to report elder abuse that a person has witnessed or of which a person has knowledge, especially if the victim was under the person’s care.

What Is Exploitation of the Elderly?

Although every state has statutes regarding elder abuse and neglect, many states also have statutes that give victims the legal right to sue if they have been exploited. Elder exploitation occurs when an individual, long-term care home, employer, or other party that stands in a position of trust concerning 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:

  • Theft: Stealing or misusing the assets of the elderly person;
  • Forgery: Forging the elderly person’s signature to write checks without their permission;
  • Fraud: Deceiving an elderly person into signing a document the contents of which they do not know or understand or otherwise taking advantage of an elderly person’s disability to get control of their property;
  • Embezzlement: 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

Criminal charges that might be made and the penalties if a person is convicted 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 property’s value is large.

Additionally, the victim of exploitation (or their legal guardian) has the legal right to take civil action against the perpetrator and sue them for civil damages. Among the crimes that could be charged are theft, embezzlement, theft by fraud, and others.

Should I Hire an Attorney for Help with My Elderly Protection Issue?

As can be seen, statutory protections for the elderly have expanded in recent years and cover several different areas of law. Contacting a well-qualified elder law attorney is in your best interest if you or your loved one needs assistance with an elder law issue.

An experienced elder law attorney can advise you on your best action. Additionally, they can file a civil suit against the violator on your behalf and represent you in court if necessary.

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