Keeping The Elderly Free From Abuse

by | Jun 29, 2011 | Estate Planning, Health

We’re pleased to feature a guest post from Tom Simmons, a partner with the Rapid City law firm of Gunderson, Palmer, Nelson & Ashmore, LLP.

There is a great deal of ruckus about the rights of our country’s elderly citizens to be free from abuse and exploitation.

The most recent cloud of dust was raised when the Elder Justice Act was being argued and considered by Congress.  Mickey Rooney, age 90 and the beloved Hollywood star of films like Boys Town, testified in March of this year before the Senate Aging committee.  Coincidentally, Rooney had to obtain a restraining order against his stepson on account of allegations that the stepson had been financially abusing his stepfather.

So what is elder abuse and what can or should the U.S. Congress do to eliminate it?

Elder abuse can take many forms: financial exploitation, physical abuse, sexual abuse, neglect or exploitation.  It typically centers around a relationship of trust which is exploited to the elderly person’s disadvantage.  The common denominator is the use of power and control by one individual to affect the well-being of an older victim.  In 1987, Congress offered this definition of elder abuse: the domestic and institutional abuse of persons over age 60 involving physical, sexual, and emotional/psychological harm, as well as neglect, self-neglect, abandonment, and financial exploitation.

One particular form of elder abuse is typically referred to as “domestic elder abuse” which is simply a form of domestic violence against an older person.  Domestic elder abuse cuts across income, race, religious and socioeconomic lines.  The vulnerability of old age exacerbates the physical violence by factors like isolation, dependence, and mobility impairments.  Law enforcement struggles with this crime because – like child abuse – believable testimony from the victim may be difficult to obtain.

Elder abuse in all its forms is a serious problem.  It is often under-reported and under-prosecuted.

The Elder Justice Act is a federal law which was signed into law on March 23 last year.  Essentially, it is a funding bill.  It authorizes a total of $757 million over four years for services, grants and programs to combat elder abuse.  It enhances coordination of elder justice research, establishes ten forensic centers to develop ways to better identify elder abuse, and funds state adult protective services centers.

The Act also changes the substantive law in one significant way.  It requires nursing homes to report reasonable suspicion of any criminal act against a resident within 24 hours, or within 2 hours in the case of a serious bodily injury.  Failure to comply (or retaliating against an employee for making a report) triggers substantial civil monetary penalties.

Mandatory reporting of abuse is an already familiar fixture of state child abuse laws.  Adding mandatory reporting of elder abuse makes sense.  The federal law impacts nursing homes.  But additional mandatory reporting at the state level from counselors to healthcare workers should also be seriously considered.  The law – if it does nothing else – should always strive to provide protections from physical and financial harm for the most vulnerable members of society.

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