Elderly Legal Rights: Understanding Applicable Laws And Protections

Elder law is a legal practice area that focuses on issues affecting older adults, typically those over 65, and their caregivers, friends, and family. The purpose of elder law is to provide holistic legal advice and protect the rights of older persons and disabled individuals. This includes safeguarding their interests and well-being, and addressing elder abuse, neglect, and financial exploitation.

In the United States, the federal government and individual states have enacted laws and statutes to protect older adults in various areas, including:

- Physical abuse, neglect, financial exploitation, psychological abuse, sexual abuse, and abandonment.

- End-of-life planning, healthcare decisions, and guardianship.

- Estate planning, tax law, and asset protection.

- Social Security, Medicare, and Medicaid coverage and benefits.

- Nursing home issues and residents' rights.

Laws against elder abuse

In the United States, the federal government, states, commonwealths, territories, and the District of Columbia have laws in place to protect older adults from elder abuse and guide the practices of adult protective services agencies, law enforcement agencies, and other entities. These laws vary from state to state.

The Elder Justice Act, passed in 2010, is the first comprehensive legislation to address elder abuse, neglect, and exploitation at the federal level. The Act established the Elder Justice Coordinating Council to coordinate activities related to elder abuse across the federal government. It also authorises programs and initiatives to better coordinate federal responses to elder abuse, promote research and innovation, support Adult Protective Services systems, and provide additional protections for residents of long-term care facilities.

Elder abuse can take many forms, including physical, sexual, and emotional injury or harm, as well as financial exploitation. Financial exploitation refers to the illegal or improper use of an older adult's money, property, or other resources for monetary gain or personal benefit. This can include theft, misappropriation, concealment, misuse, or fraudulent deprivation of their assets.

While the specific laws and definitions of financial exploitation vary by state, it is a criminal offence in many jurisdictions. Some states also have civil financial exploitation statutes, which are typically part of the larger body of adult protective services law and outline who is eligible for protection.

In conclusion, elder abuse laws in the United States aim to protect older adults from various forms of abuse, including financial exploitation, and provide a framework for responding to and preventing such incidents. These laws vary at the state level, but the Elder Justice Act provides a federal framework for addressing this important issue.

Laws against elder neglect

Elder neglect is a form of elder abuse, defined by the World Health Organization (WHO) as:

> a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.

The abuse may be physical, social, financial, psychological, or sexual and can include the neglect of an older person. Elder neglect is a violation of human rights and often goes unnoticed or unreported. It is often perpetrated by someone the older person trusts, such as a family member, friend, or caregiver, and can occur in various settings, including the older person's home.

In the United States, the Elder Justice Act, passed in 2010, is the first comprehensive legislation to address the abuse, neglect, and exploitation of older adults at the federal level. The law established the Elder Justice Coordinating Council to coordinate activities related to elder abuse, neglect, and exploitation across the federal government. It also provides authority for programs and activities such as Elder Abuse Prevention Intervention Demonstrations, State Grants to Enhance Adult Protective Services, and the National Adult Maltreatment Reporting System.

Additionally, the federal government, states, the District of Columbia, and some territories have statutes to protect older adults from physical abuse, neglect, financial exploitation, psychological abuse, sexual abuse, and abandonment. Civil elder abuse statutes guide the practice of adult protective services (APS) agencies, which are responsible for receiving and responding to reports of elder abuse. Financial exploitation is a criminal offense in many, but not all, states, with varying definitions and penalties.

In Australia, the government has also implemented initiatives to address elder abuse, including the National Plan to Respond to the Abuse of Older Australians (2019-2023) and its successor, which is currently being developed. The Australian Human Rights Commission has also launched awareness campaigns, such as 'Shift Your Perspective' and 'Know the Signs', to educate the community about elder abuse and encourage reporting. Seniors Rights Victoria also operates a confidential helpline for individuals experiencing elder abuse in Victoria.

Elder neglect is a serious issue that requires a multi-faceted approach, including legislation, coordination between government agencies, community education, and support services, to protect the rights and dignity of older individuals.

Laws against elder financial exploitation

Elder financial abuse is a form of elder abuse that involves the misappropriation of financial resources or the abusive use of financial control. This occurs in the context of a relationship where there is an expectation of trust, and it causes harm to an older person.

The Older Americans Act of 2006 defines elder financial abuse as:

> The fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an older individual for monetary or personal benefit, profit, or gain, or that results in depriving an older individual of rightful access to, or use of, benefits, resources, belongings, or assets.

The Elder Justice Act, enacted in 2010, defines the financial exploitation of elderly people as:

> The fraudulent or otherwise illegal, unauthorized, or improper act... that uses the resources of an elder for monetary or personal benefit, profit, or gain, or that results in depriving an elder [of] the rightful access to, or use of, benefits, resources, belongings, or assets.

Federal Laws

The Elder Justice Act provides for greater coordination among federal and state agencies dealing with older adult abuse cases and abuse laws. It also expands reporting requirements for healthcare and financial services providers.

State Laws

Most laws protecting against elder financial abuse exist at the state level. For example, California law prohibits anyone from taking or assisting in taking the real or personal property of seniors for wrongful purposes or with the intent to defraud. California law also provides for treble damages in some instances of elder financial abuse. Other states have similar statutes.

What to Do if You Suspect Elder Financial Abuse

If you suspect elder financial abuse, you can contact your local Adult Protective Services (APS) agency or long-term care ombudsman. It may also be helpful to consult an elder law attorney.

Laws regarding elder healthcare

Elderly people in the US are protected by a range of laws that apply to their healthcare, and these laws vary from state to state. The federal government, states, commonwealths, territories, and the District of Columbia all have laws designed to protect older adults from elder abuse and guide the practice of adult protective services agencies, law enforcement agencies, and others.

The Elder Justice Act, passed in 2010, is the first comprehensive legislation to address the abuse, neglect, and exploitation of older adults at the federal level. The law authorized a variety of programs and initiatives to better coordinate federal responses to elder abuse, promote elder justice research and innovation, support Adult Protective Services systems, and provide additional protections for residents of long-term care facilities.

The federal Vulnerable Elder Rights Protection Program was enacted in 1992 and enhances the rights of senior citizens. The Older Americans Act, enacted in 1965 and reauthorized in 2020, helps elderly adults age in their homes instead of institutions. The act authorizes a variety of programs and services for elderly adults, including meals delivered to homes, support for caregivers who are family members, health services targeted at prevention, transportation, and elder abuse prevention.

The federal and state laws define elder abuse and neglect and the protections they provide, as well as who is considered an elderly person. Generally, states define the elderly, or senior citizens, as adults who are 60 or 65 years old or older. In many states, state laws regarding abuse and neglect also apply to adults of any age who are disabled.

Elder abuse can take many forms, including physical, mental, and financial abuse, as well as neglect. Physical abuse includes hitting, pushing, and sexual abuse. Mental abuse involves creating mental anguish in another person or threatening or intimidating them. Financial abuse includes scams and the misuse of an elderly person's resources without their consent. Neglect involves failing to take care of the basic needs of a person, such as providing adequate nutrition and medical care.

Each state has its own list of people who are legally required to report abuse. These typically include people who live or work with the elderly, such as mental healthcare providers, nursing home administrators, close family members, and other nursing home residents. Federal law, specifically the Elder Justice Act, sets reporting requirements for people associated with long-term care facilities and specifies punishments for failing to report abuse.

In addition to federal laws, individual states have also passed laws to protect older adults. For example, New York has a "Granny Law," which classifies the crime of assault on a person who is over 65 years of age as a 2nd-degree assault if the perpetrator is at least 10 years younger than the victim. Florida also has stringent laws that make abuse, aggravated abuse, and neglect of an elderly adult or an adult with a disability a criminal offense.

Laws regarding elder guardianship

Guardianship laws for elders vary from state to state in the US. However, there are some general principles that apply across the board.

Firstly, guardianship is a legal relationship created when a court appoints a person to care for an older adult who can no longer care for themselves. This typically involves making healthcare and financial decisions on their behalf. The guardian has a duty of care towards the older adult, meaning they must act in their best interests.

The process of obtaining guardianship can be long and complex, and it is not easy because the older adult will lose some important rights. Generally, the following people or entities can petition a court to name a guardian: a spouse or domestic partner, a relative or adult child, a friend, or a state or local government agency. The process usually involves filing a petition, providing the required information, explaining why alternatives to guardianship are not appropriate, and informing the older adult and their relatives of the petition. The court will then determine whether the guardianship is necessary and whether the proposed guardian is suitable.

There are alternatives to guardianship, such as power of attorney, living wills, and representative payees, which allow the older adult to assign their rights to another person willingly. However, these alternatives are no longer available if the older adult becomes mentally incapacitated.

It is important to note that financial exploitation and elder abuse are risks in some guardianships, and courts consider older adult guardianship to be a last-resort option.

Frequently asked questions