Elder Abuse and Elder Law

Transcription

1 Elder Abuse and Elder Law Why is Elder Law and Elder Abuse a growing concern? Baby Boomers Americans born between 1946 and million persons 39% of population over 18 29% of total population National Academy of Elder Law Attorneys, Survey of Elder Issues, recently noted that 48% have experienced higher health insurance copays, 47% have had increase in monthly premiums, 36% have had increase in annual deductible, 30% have had decrease in healthcare coverage Why is Elder Law and Elder Abuse a growing concern? Average retirement age after 50 is at 59.7 years of age 22% of Boomers retired 30% persons retired 92% persons 65 and older retired 21% retires 50 years or older working part time during retirement Studies have indicated as many as 5 million cases of elder abuse each year, including physical, financial, emotional or sexual abuse. National Elder Abuse Incidence Study suggests almost 85% go unreported.

2 Why is Elder Law and Elder Abuse a growing concern? As the Boomer s reach their 80s, the prevalence of Alzheimer s and dementia will reach continue to increase. Every 70 seconds someone in the US develops Alzheimer s [4]. 5.1 million people over 65 have Alzheimer s [5] of these, 2.7 are over 85 years of age By 2031, when the Boomer s are 85, 3.5 million people over 85 will have the disease What are the concerns of the elderly? National Academy of Elder Law Attorneys, Survey of Elder Issues, top five concerns of persons 35 and older: Losing Physical Health 55% Running out of money 37% Losing mental health 32% Having someone else care for them 25% Loss of memory 24% What is Elder Abuse? The National Center of Elder Abuse defines elder abuse as any knowing, intended or careless act that causes harm or serious risk of harm to an older person physically, mentally, emotionally, or financially. A National Institute of Justice study showed that nearly 11% of Americans 60 years of age and older faced some type of elder abuse in the past 12 months

3 Studies have shown that victims of financial exploitation, elder abuse, or neglect have been found to have three times the risk of dying prematurely. 1 Reported incidents of abuse in care facilities, both long term and day-care, have skyrocketed in the past decade. Types of abuse Physical abuse Sexual abuse Financial abuse (financial exploitation) Neglect Abandonment Abduction Psychological abuse Self-neglect Why are the elderly at such risk? Difficulty defending oneself (physically or emotionally vulnerable) Greater dependence on others for assistance Fear of losing independence if abuse is reported (vulnerable to intimidation, coercion, duress) Feelings of shame as a result of abuse

4 Why are the elderly at such risk? Elder s suffering from Alzheimer s or Dementia are at particular risk May be unable to recognize abuse May be unable to report abuse May be the perpetrator of abuse, potentially unknowingly May not be believed How does the law become involved? (Elders Medical Professionals Law) At the federal level, recent adoption of the Elder Justice Act At the state level, many states now require reporting by professionals with significant penalties for failure to report Elder Justice Act The Elder Justice Act was signed into law by President Obama on March 23, 2010, as part of the Patient Protection and Affordable Care Act. [2] It provides federal resources to prevent, detect, treat, understand, intervene in and, where appropriate, prosecute elder abuse, neglect and exploitation.

5 Elder Justice Act In part, the Act requires the following [3]: Establishment of the Elder Justice Coordinating Council Establishment of an Advisory Board on Elder Abuse Establishment of Elder Abuse, Neglect, and Exploitation Forensic Centers Enhancement of Long-Term Care Funding to State and local adult protective service offices Grants for long-term care ombudsmen programs and for evaluation of programs Programs to provide training Grants to State agencies to perform surveys of care and nursing facilities. Mandatory Reporting In Colorado, C.R.S Mandatory report of abuse and exploitation of at-risk elders list of reporters penalties. (1) (a) On and after July 1, 2014, a person specified in paragraph (b) of this subsection (1) who observes the abuse or exploitation of an at-risk elder, or who has reasonable cause to believe that an at-risk elder has been abused or has been exploited or is at imminent risk of abuse or exploitation, shall report such fact to a law enforcement agency not more than twenty-four hours after making the observation or discovery. Mandatory Reporting What types of abuse are covered? Non-accidental infliction of bodily injury, serious bodily injury, or death Confinement or restraint that is unreasonable under generally accepted caretaking standards Subjection of sexual conduct or contact that is otherwise a crime Caretaker neglect when adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision is not secured for an at-risk elder, or is not provided timely and with proper degree of care Exploitation deception, harassment, intimidation, or undue influence used to deprive an at-risk elder of use, benefit, or possession of any thing of value

6 Mandatory Reporting Who must report? (b) The following persons, whether paid or unpaid, shall report as required by paragraph (a) of this subsection (1): (I) Physicians, surgeons, physicians' assistants, osteopaths, physicians in training, podiatrists, occupational therapists, and physical therapists; (II) Medical examiners and coroners; (III) Registered nurses, licensed practical nurses, and nurse practitioners; (IV) Emergency medical service providers; (V) Hospital and long-term care facility personnel engaged in the admission, care, or treatment of patients; (VI) Chiropractors; (VII) Psychologists and other mental health professionals; (VIII) Social work practitioners; (IX) Clergy members; except that the reporting requirement described in paragraph (a) of this subsection (1) shall not apply to a person who acquires reasonable cause to believe that an at-risk elder has been mistreated or has been exploited or is at imminent risk of mistreatment or exploitation during a communication about which the person may not be examined as a witness pursuant to section (1) (c), C.R.S., unless the person also acquires such reasonable cause from a source other than such a communication; Mandatory Reporting (X) Dentists; (XI) Law enforcement officials and personnel; (XII) Court-appointed guardians and conservators; (XIII) Fire protection personnel; (XIV) Pharmacists; (XV) Community-centered board staff; (XVI) Personnel of banks, savings and loan associations, credit unions, and other lending or financial institutions; (XVII) A caretaker, staff member, employee, or consultant for a licensed or certified care facility, agency, home, or governing board, including but not limited to home health providers; and (XVIII) A caretaker, staff member, employee of, or a consultant for, a home care placement agency, as defined in section (5), C.R.S. Mandatory Reporting Punishment for failing to report (c) A person who willfully violates paragraph (a) of this subsection (1) commits a class 3 misdemeanor and shall be punished in accordance with section Class 3 Misdemeanor: Minimum: $50 fine Maximum: $750 fine or 6 months imprisonment, or both

7 Mandatory Reporting Following information is to be provided to law enforcement: (I) The name, age, address, and contact information of the at-risk elder; (II) The name, age, address, and contact information of the person making the report; (III) The name, age, address, and contact information of the at-risk elder's caretaker, if any; (IV) The name of the alleged perpetrator; (V) The nature and extent of the at-risk elder's injury, whether physical or financial, if any; (VI) The nature and extent of the condition that required the report to be made; and (VII) Any other pertinent information. Mandatory Reporting Protection for reporting A person, including but not limited to a person [ ] who reports abuse or exploitation of an at-risk elder to a law enforcement agency [ ] is immune from suit and liability for damages in any civil action or criminal prosecution if the report was made in good faith; except that such a person is not immune if he or she is the alleged perpetrator of the abuse or exploitation. Mandatory Reporting States Alaska (AS ) Arizona (A.R.S ) California (Ca. Welf. And Inst. Code 15630) Connecticut (Conn. Gen. Stat. 17b-451) Florida (Fla. Stat ) Georgia (OCGA ) Reporting States New Jersey (N.J.S. 52:27D-409) North Dakota (N.D.C.C ) South Carolina (S.C. Code ) South Dakota (S.D.C.L ) Tennessee (TCA ) Utah (Utah Code 62A-3-305) Vermont (V.S.A. 6903) Hawaii (HRS , HRS 412:3- Washington (RCW ) 114.5) West Virginia (W. Va. Code 9-6-9) Idaho (Idaho Code ) Wisconsin (Wis. Stat ) Maryland (Md. Code, FL ) Minnesota (Minn. Stat ) Missouri ( , RSMo)

8 What s your role in combating elder abuse? Prevention Risk Assessment Reporting Documentation Testimony Research / Education What to look for Physical abuse (including sexual abuse) Includes Assault or Battery, with and without a weapon Unwelcome contact with or use of unwelcome force on another, whether likely to cause injury or not Unreasonable restraint, whether physical or chemical Prolonged or unreasonable deprivation of food or water What to look for Neglect Occurs where one person has responsibility for care or custody of elder or dependent adult and fails to exercise the amount of care a reasonable person in a similar position would exercise As with physical abuse, assault, battery, unwelcome force, unreasonable restraint with the added element that the actor had responsibility for the abused person Includes also failure to provide hygiene care, clothing, shelter, food and water, medical care Failure to protect from health or general safety hazards

9 What to look for Delirium Problems with attention Fluctuations in cognition Delirium may indicate abuse Resulting from neglect Resulting from over/under medication Resulting from lack of medical care, delay in seeking care Red Flags / Signs of Possible Abuse Implausible or vague explanations Unreasonable delay in seeking care Unexplained injuries Inconsistent explanations / stories Sudden changes in behavior not reasonably attributable to another explanation Lack of appropriate concern on the part of the caregiver Unreasonable or inappropriate delay in seeking care How do you determine if what you have seen is abuse? Trust your senses observe the elder Watch elder s behavior, especially with others and most especially with someone who may be the perpetrator of abuse Watch for behaviors or indications of state-of-mind consistent with abuse Withdrawal Fear Confusion Denial Shame

10 How do you determine if what you have seen is abuse? Investigate appropriately Ask open ended questions (who, what, when, where, why) Avoid leading questions avoid questions that suggest the answer you are looking for Start with general questions and move to more specific questions based on the answers Separate the elder from his or her caregiver during interview, especially if elder appears to be withholding or looking to caregiver for direction What should you be doing with Elders Look for signs of abuse and ask questions to help recognize if it is occurring Don t forget to look to the caregiver s behavior, even if simply to recognize when a caregiver is overwhelmed and needs help (which may help prevent abuse from happening) Report Follow your state law (contact law enforcement, Adult Protective Services, etc.) Report the abuse even if your state does not mandate that you do so Create a paper trail Even if abuse is not present, you may be seeing signs of problems that could lead to abuse or you may not be seeing abuse now but will recognize it later A record of what you see, what you are told, what you learn will not only assist in treating your patient, it may be the key to stopping the abuse via criminal or other legal action Planning for the Future Power of Attorney / Limited Power of Attorney Durable Power of Attorney Medical Durable Power of Attorney Guardianship Conservatorship Advanced Directives

11 Power of Attorney Primarily 4 types that may come be presented by POA regarding an Elder 1. General POA basic form allowing for one person to have authority to manage financial affairs of another 2. Limited POA a/k/a Special POA, grants limited authority to agent to act on behalf of another (i.e. POA limited to purchasing specific parcel of property for another) 3. Durable POA allows agent to act on behalf of elder only if elder becomes incapacitated 4. Medical Durable POA allows agent to make medical decisions for elder if elder becomes incapacitated Power of Attorney Benefits of POA If principal becomes incapacitated, agent may immediately step in and make decisions on behalf of principal without the need for a court to first appoint guardianship and/or conservatorship. Principal decides who will act on his/her behalf instead of a court deciding after a lengthy, public, expensive proceeding for guardianship and/or conservatorship Power of Attorney Impact of POA on Elder s rights POA does not take away an Elder s right to make decisions on his or her own behalf. If Elder is not incapacitated, both Elder and agent can work in conjunction with each other to handle Elder s affairs Elder has absolute right to revoke POA at any time, so long as he or she has requisite capacity (whether Elder reasonable understands extent and effect of the action same as for executing POA to begin with)

12 Power of Attorney Duties of Agent An agent is a fiduciary of the Elder who executed the POA and must act with the highest degree of good faith on behalf of the principal. Agent must follow any and all reasonable instructions given by principal. Agent my act, even where no instructions are given, in the best interests of principal (not in the best interests of agent unless specifically instructed by principal to do so) Power of Attorney Abuse Although POA has many advantages, primary disadvantage is that it gives an agent the opportunity and means to take advantage of the Elder Financial exploitation, including illegal and/or unauthorized use of principal s funds, property, or resources for profit or advantage of agent, is on the rise If you suspect an agent is misusing a POA, take action and report it. Power of Attorney Medical POA specifics Although an agent likely will need access to the Elder s medical records to make informed decisions on behalf of the principal, keep in mind that a POA without sufficient HIPPA language does not give the agent access. Proper language should appoint agent as personal representative (the HIPPA term for an agent) Medical POA should be provided to all medical professionals who keep medical records for the Elder, as well as any hospital, assisted living facility, nursing home, or other medical facility on admission. If you work at one of these and are seeing an Elder for the first time, be on the lookout for such a document.

13 Guardianship / Conservatorship Guardianship A fiduciary relationship created by a court in which the Guardian is authorized to make all significant decisions affecting the Ward s physical custody, education, health, activities, personal relationships, and general welfare Court will issue an Order Appointing Guardian, Letters of Guardianship, or other similar instrument appointing the Guardian typically it must be certified by the Court Clerk Conservatorship A fiduciary relationship created by a court in which the Conservator is authorized to take title to and manage a Protected Person s property (real and personal) Court will issue an Order Appointing Conservator, Letters of Conservatorship, or other similar instrument appointing the Conservator typically it must be certified by the Court Clerk Guardianship / Conservatorship A guardianship and/or conservatorship is necessary when the incapacitated person did not execute valid or thorough enough legal documents before he or she become incapacitated (i.e lack of POA, insufficient POA). Incapacity a person who is impaired by intoxicant, by mental illness or deficiency, or by physical illness or disability to the extent that personal decision-making is impossible [6] Defined in Colorado law as an individual other than a minor who is unable to effectively receive or evaluate information or both or make or communicate decision to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance. Guardianship / Conservatorship The Elder can nominate someone for each role, but the court retains total discretion. Typically the court is considering these factors: Criminal and civil suit history (felonies, misdemeanors, civil judgments, etc.) Credit report, bankruptcy filings, criminal background checks Preference of the ward or protected person Typically the Guardian or Conservator will be: Family member or friend Public administrator Professional fiduciary Trust company or bank State or county agency

14 Guardianship / Conservatorship Duties Guardian Duties and responsibilities equal to those of a parent with regard to support, care, education, health, and welfare Conservator Duties and responsibilities of a trustee or financial fiduciary to manage, preserve, and disburse property Guardianship / Conservatorship Abuse Guardians are in a position of trust and authority at least as great as any typical caregiver and the potential is for abuse of the kind typical of caregivers Physical abuse Neglect Financial exploitation Conservators, like an agent with a POA, have access and authority sufficient to give them means and opportunity to exploit the property of the Protected Person. Financial exploitation is the primary danger, although other possibilities exist (i.e. neglect). If you suspect a Guardian or Conservator is misusing the power granted to them by court order, take action and report it. [1] The Elder Justice Coalition. Retrieved July 22, 2012 from: [2] BIFOCAL, Stiegel, Lori A., March-April Vol. 31, No. 4. Elder Abuse Prevention: Elder Justice Act Becomes Law, But Victory Is Only Partial. Retrieved July 22, 2012 from: [3] American Psychological Association. The Elder Justice Act (S.1070/H.R. 1783). Retrieved July 22, 2012 from: [4] 2009 Alzheimer s Disease Facts and Figures [5] USA Today, March 24, 2009 [6] Black s Law Dictionary, 8 th Edition