Vulnerable Adult & Elder Abuse

Transcription

1 Vulnerable Adult & Elder Abuse Kathleen Flynn Peterson Brandon E. Vaughn September 10, 2013

2 Introduction Vulnerable adult and elder abuse often have been overlooked because of lack of awareness Abuse, neglect, and defrauding vulnerable adults and the elderly are growing problems across the country As the American population ages, the extent of abuse will likely grow 2

3 Defining Vulnerable Adult & Elder Abuse* Vulnerable adults : elderly persons and adults with disabilities Types of Abuse: Physical Abuse Sexual Abuse Psychological Abuse Financial Exploitation Neglect * Federal and state laws may define these terms differently 3

4 Physical Abuse Use of physical force against a vulnerable adult or elderly person that may result in bodily injury, physical pain, or impairment 4

5 Sexual Abuse Nonconsensual sexual contact of any kind with a vulnerable adult or elderly person Examples: unwanted touching, rape, and coerced nudity 5

6 Psychological Abuse Infliction of anguish, pain, or distress on a vulnerable adult or elderly person through verbal or nonverbal acts Examples: verbal assaults, insults, threats, intimidation, humiliation, and harassment 6

7 Financial Exploitation Illegal or improper use of a vulnerable adult or elderly person s funds, property, or assets Examples: cashing checks without authorization, misusing or stealing money or possessions 7

8 Neglect Willful refusal or failure to fulfill any part of a person s obligation or duties to a vulnerable adult or elderly person Examples: refusing or failing to provide food, clothing, shelter, medicine, and personal hygiene 8

9 Vulnerable Adult & Elder Abuse: The Scope of the Problem Data on the occurrence of vulnerable adult and elder abuse is scarce In 2011, the U.S. Senate Special Committee on Aging Report estimated that 14.1% of noninstitutionalized elderly persons had experienced abuse, neglect, or financial exploitation between However, vulnerable adult and elder abuse are severely underreported crimes Senate Special Committee on Aging Report Experienced Abuse, Neglect or Financial Exploitation 14.1% 9

10 Vulnerable Adult & Elder Abuse: The Scope of the Problem News stories tell the stories of vulnerable adults and elders victimized by strangers and family members: Star Tribune, Grandson in Willmar murder case called angry, hurting boy (August 3, 2013) Huffington Post, Neglected Woman Confined to Bed So Long Her Legs Fused Together (July 6, 2013) Chicago Tribune, Northwest Side Man Charged With Elder Abuse in Wisconsin (May 24, 2013) Star Tribune, Minneapolis Assisted-Living Home Left Women Alone For Hours (Apr. 18, 2013) Sun Sentinel, Grandmother Becomes Secret Piggy Bank (Nov. 5, 2012) 10

11 Lasting Impact of Vulnerable Adult & Elder Abuse Elders who experienced abuse had a 300% higher risk of death Victims of elder abuse had significantly higher levels of psychological distress Vulnerable adult and elder victims of financial abuse have a higher risk of depression, which decreases their quality of life and increases unnecessary institutionalization 11

12 Deficiencies of Criminal System Many abuse cases never get prosecuted Prosecution cannot take place unless a report is made The amount of time that elapses between an incident and trial can negatively affect an otherwise successful criminal case Although criminal penalties exist, more are needed 12

13 The Civil Justice System Can Hold Perpetrators Accountable The elderly and vulnerable adults rarely pursue civil actions for compensation Nonetheless, civil damages suits have become an important means of addressing systemic problems 13

14 Legislative Response to Vulnerable Adult & Elder Abuse Since the 1970s, a wave of state legislation has addressed the problem by increasing the scope of civil remedies available to vulnerable adults and the elderly who are victims of abuse, neglect, or financial exploitation 14

15 Federal Congressional Efforts In the late 1980s, the National Center on Elder Abuse (NCEA) was established in an effort to craft an effective response to the problem As a result of the research and recommendations made to address the problem of elder abuse, the Elder Justice Act (EJA) was finally enacted in March 2010 Congress specifically refused to create a private cause of action for elder abuse On March 2, 2011, the Elder Abuse Victims Act of 2011 was introduced but died at Committee On May 22, 2013, the Elder Protection and Abuse Prevention Act was reintroduced to the Senate and referred to Committee 15

16 States Respond to Vulnerable Adult & Elder Abuse The primary responsibility for protecting the rights of vulnerable adults and the elderly rests with the states Civil remedies are available in most states under statutory and case law These remedies may include injunctive relief and monetary compensation 16

17 State Statutory Civil Remedies Many states have enacted statutes that hold persons civilly liable for the abuse, neglect, or fraud of vulnerable adults and the elderly Typical remedies include: Equitable relief Compensatory damages Pain and suffering damages Punitive damages Attorney s fees and costs 17

18 Examples of Leading State Legislative Efforts California Florida Arizona 18

19 California In 1991, California enacted the Elder Abuse and Dependent Protection Act to protect vulnerable and elderly adults Under California law, vulnerable adult and elderly victims of abuse are entitled to: Compensatory damages Pain and suffering damages Punitive damages Attorney s fees Equitable relief 19

20 Florida Florida Statute provides for a specific cause of action for vulnerable adult abuse and exploitation The statute permits damages for abuse, neglect, and fraud of vulnerable adults, and provides civil remedies for criminal violations Remedies include: Compensatory damages Punitive damages Attorney s fees Equitable relief 20

21 Arizona Arizona enacted the Adult Protective Services Act to protect vulnerable adults from neglect, abuse, and exploitation Under Arizona law, remedies include: Compensatory damages Punitive damages Attorney s fees Equitable relief 21

22 Common Law Civil Remedies Many forms of vulnerable adult and elder abuse may be litigated as traditional tort causes of action Remedies include: Injunctive or other equitable relief Compensatory damages Punitive damages Pain and suffering damages Attorney s fees and costs 22

23 Injunctive or Other Equitable Relief Courts may issue: protective or restraining orders against the vulnerable adult s abuser guardianship or conservatorship orders injunctions preventing retaliatory actions 23

24 Compensatory Damages (Economic Damages) Courts may award compensatory damages for any actual loss such as medical expenses, cost of care, living expenses and any other assets wrongfully taken 24

25 Non-Economic Damages Damages for pain and suffering, loss of enjoyment of life, disfigurement, embarrassment, and humiliation may be recoverable under a state vulnerable adult or elder abuse statute 25

26 Punitive Damages Courts may award punitive damages to victims of vulnerable adult and elder abuse 26

27 Attorney s Fees and Costs Some jurisdictions award reasonable attorney s fees and costs to a prevailing plaintiff in a vulnerable adult or elder abuse action 27

28 What You Can Do To Help Reports of suspected mistreatment Education Safety plans Home visits In-depth assessment/interviews Contact with other family and friends 28

29 Conclusion Abuse of vulnerable adults and the elderly occurs in our communities on a daily basis Vulnerable adults and the elderly are often treated as second class citizens and often have no advocate to protect their rights Vulnerable adult and elder abuse is preventable Civil remedies may be available to compensate individuals who have suffered abuse, neglect, or financial explotation 29