Can I Sue Adult Protective Services (APS)?

Adult Protective Services (APS) is a human services agency that aims to protect the well-being of older adults vulnerable to abuse, neglect, and other forms of mistreatment. APS is the principal public agency responsible for investigating and reporting cases of elder abuse against elderly persons. APS also aims to protect adults of any age with disabilities or mental health issues that make them vulnerable to abuse.

Adult Protective Services not only investigates reports of abuse but also helps facilitate necessary health care and medical care for adult victims of abuse. It can also obtain court orders and provide support to both you and your loved one.

You would be hard-pressed to win a legal action against APS. The legal doctrine of sovereign immunity generally bars claims against APS agencies in federal court and severely restricts any claims you might be able to bring in certain state courts. Even if your state has waived sovereign immunity and permits such claims, a lawsuit against Adult Protective Services is a lot to take on. There are several procedural hoops, notice requirements, and time and damage limitations you will need to take into account.

Maybe your problem isn't really with APS, however. Maybe it's with someone who filed a false elder abuse report against you. Assuming they acted in bad faith, you may be able to sue them in state court for defamation or intentional infliction of emotional distress.

Adult Abuse Cases Are Pervasive

Abuse can be inflicted by any number of people, including:

• Caregivers
• Home care agencies
• Long-term care facilities
• Assisted living facilities
• Nursing homes
• Family members
• Financial advisors

According to the United States Department of Justice (DOJ), more than 10% of people over the age of 65 in any given year suffer some form of elder abuse, including:

• Physical abuse
• Sexual abuse
• Self-neglect
• Domestic violence
• Emotional abuse
• Financial abuse or exploitation

False Charges of Adult Abuse Can Be Devastating

APS receives many reports of alleged abuse that are potentially inaccurate or even false. False charges of elder abuse can be devastating, both financially and emotionally.

Suppose you get a call from an APS caseworker named Shirley. She tells you that they are investigating a claim of older adult abuse involving your 86-year-old mother. You're shocked. You have a close relationship with your mom — as her primary caregiver with power of attorney — so you figure you would know if your mom was being abused. Turns out your jealous sister reported you for financial exploitation, falsely claiming that you had been taking money out of your mom's account for yourself.

APS Investigates You

APS decides to investigate. Although it would be a great idea to get legal advice at this point, you decide on your own to simply cooperate with the investigation. You present Shirley with carefully maintained financial records reflecting that no cash has left your mom's account and that none of the checks she wrote was made out to you. Shirley gives you her phone number and tells you that she will be in touch.

APS Concludes the Referral Is Unsubstantiated

After some time, you are finally able to get in touch with Shirley. She does not acknowledge the many voicemail messages you have left her. Instead, she tells you that Adult Protective Services determined that the case was unsubstantiated and has chosen not to proceed.

Do You Have a Potential Lawsuit Against APS?

APS is a state agency. As an agency of the state, APS is treated as the state in most lawsuits.

As a general rule, states are immune from being sued. This doctrine is called sovereign immunity. It's rooted in the Eleventh Amendment of the United States Constitution and stems back to English common law. For a detailed discussion of the doctrine, check here.

In order to sue the state or federal government, it must waive sovereign immunity. They only do this when they clearly manifest an intent to permit themselves to be sued in court.

Sovereign Immunity and APS: Federal Court

As for suing APS in federal court, you are probably out of luck. No state has generally waived its Eleventh Amendment right to immunity from federal lawsuits. Nor has Congress expressly done away with immunity for claims you might want to file against APS.

Under Supreme Court authority, you might be able to get a federal court to order APS not to do something that violates federal law in the future. However, that wouldn't help you bring a direct claim against Shirley.

Sovereign Immunity and APS: State Court

You may have better luck in state court, but you will face an uphill battle. Although all states have waived, limited, or created exceptions to the doctrine of sovereign immunity, they have only done so on their own specific terms. You have to navigate your way through many procedural hoops, and you will face several restrictions.

State Lawsuit: Notice of Claim

First, you will need to file a formal notice of the claim with the appropriate official. In some places, it's the attorney general. In others, it's the agency itself. In either case, you have a limited number of weeks to submit your notice, or you will be barred from any relief.

State Lawsuit: Damage Caps

Another challenge is that the damages you can recover are generally limited. For example, there are statutory caps on what you can get in compensatory damages. In most states, you cannot recover punitive damages against the state. Punitive damages punish the wrongdoer for particularly outrageous conduct and deter others from similar acts.

State Lawsuit: May Require Filing in Specific Court

Further, some states require you to file a case in a particular court. In Illinois, for example, claims against the state need to be filed in the court of claims, which has its own rules and limitations.

Criminal Penalties for False Older Adult Abuse Claims

Whether a civil trial is worth it or not, you may also have the option of going to the police and the local district attorney. In most states, it's illegal to file a false report of older adult abuse knowingly. You can face jail time and potentially large fines. If you believe you have been falsely reported, you should contact the local authorities.

Potential Lawsuit Against the Person Who Reported You

In the vast majority of states, a person who reports suspected abuse in good faith is immune from a suit under state law. This is a big burden to overcome.

In a handful of states, you may be able to sue if you can prove that the person reported you in “bad faith." This means you need to show that the report against you was not only false, but that the reporter knew it was false when they reported it.

If you can show bad faith, you may be able to assert claims for at least defamation and perhaps intentional infliction of emotional distress.

Elder Abuse Reporting and Resources

Vulnerable adults cannot always speak for themselves. This may be a result of mental illness, impairment, or incapacitation. If you believe a loved one is being abused, you should report it to law enforcement, social services, or your local APS hotline. The National Center on Elder Abuse, which falls under the U.S. Department of Health and Human Services, has a compiled list of elder abuse resources by state. Another great resource is your local long-term care ombudsmen program.

If You Are Considering Suing APS, Consult an Attorney

As you can see, lawsuits against state agencies such as APS are complicated and can be hard to win. If you do decide to pursue a claim, you should strongly consider consulting with an attorney for legal services. A family law attorney or estate planning attorney specializing in elder law can guide you through the legal process, deal with the agency on your behalf, and protect your legal rights. They can also help you decide whether a lawsuit against Adult Protective Services is the best way to proceed.