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Can I Sue Adult Protective Services (APS)?

You would be hard-pressed to win a legal action against adult protective services (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.

But even if your state has waived sovereign immunity and permits such claims, you need to be very careful. There are a lot of 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 a person who filed what you believe was a false report about you. If this happens, you may be able to sue them in state court for defamation or intentional infliction of emotional distress if they acted in bad faith (but probably only if they acted in bad faith).

Adult Abuse Cases Are Pervasive

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 abuse:

  • Physical abuse
  • Sexual Abuse
  • Emotional abuse
  • Financial abuse or exploitation

As of 2019, there were more than 54 million people over that age, which means that more than 5.4 million people were abused that year. And our population is aging.

In 2019, APS received more than 1.9 million reports of adult maltreatment (abuse, neglect, or exploitation) nationwide. About two-thirds of these were eligible for APS investigation. APS found 260,000 substantiated cases of elder abuse.

That means that APS receives many reports of abuse that are potentially inaccurate, even false.

False Charges of Adult Abuse Can Be Devastating

Abuse can be inflicted by any number of people, including caregivers, care facilities, family members, adult children, and financial advisors. Let's use a family situation as an example.

You Receive a Call From APS

Suppose you get a call from an APS caseworker (we'll call her Shirley) who tells you that they are investigating a claim of elder 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, claiming that you had been taking money out of your mom's account for yourself.

APS Investigates You

Shirley decides to investigate, which causes you a huge amount of anxiety, to say the least. Although it would be a great idea to get legal advice at this point (more on that later), you decide on your own to simply cooperate with the investigation. You calmly show Shirley carefully maintained records reflecting that no cash has gone out of your mom's account and that not one 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.

Then you wait.

And wait.

APS Concludes the Report Is Unsubstantiated

After some time and many sleepless nights pass, you are finally able to get in touch with Shirley. She doesn't even acknowledge the many voice mail messages you had left her. Instead, she tells you that they had determined that the case was unsubstantiated, chosen not to proceed, then she abruptly hangs up the phone on you.

Where does that leave you?

Well, you are pretty happy that the investigation is over, but you are also fuming mad. Mad at Shirley for how she handled the investigation and really mad at your sister for filing a false report against you. What can you do?

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 for purposes of most lawsuits.

And for you, that's a problem. 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.

Although 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, that wouldn't help you bring a claim against Shirley to recover for the harm she did you. So federal court is probably a no-go.

Sovereign Immunity and APS: State Court

You may have a little better luck in state court, but you still face a steep 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 a number of procedural hoops, and you face a number of restrictions.

State Lawsuit: Notice of Claim

The first in virtually all states is that you 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 amount of time in which to submit your notice or you're barred from any relief. And we're not talking years. More like weeks. So you need to act quickly.

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. And in most places, you cannot recover what are called “punitive damages" against the state (damages intended to punish the wrongdoer for particularly outrageous conduct and to 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.

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 you want to pursue a claim, you would benefit from getting legal advice from a capable litigation attorney or an administrative law attorney. They can help you understand your legal rights, the challenges you face, and assist you if you decide that a lawsuit against APS is the way you wish to proceed.

How to Fight False APS reports

If you do get find yourself having to respond to an accusation of abuse, it is important to stay calm and answer questions honestly. Don't let your (understandable) feelings of hurt and anger get in the way of cooperating with the APS.

Don't Panic

Being on the receiving end of an abuse accusation is no joke and must be taken seriously. But you do not want to overreact. Keep in mind that most abuse reports don't even lead to investigations, and many APS investigations result in a finding that the abuse report is unsubstantiated. Just because you've been reported doesn't mean you did anything wrong.

Answer Questions Honestly

APS has a job to do. That's to protect elder and vulnerable adults from harm. If they do contact you, don't try to make things difficult for the caseworker. Assuming you did nothing wrong, answer questions directly, openly, and calmly. Being upfront will also help the caseworker resolve an unsubstantiated report quickly.

Consider Speaking With a Family Law Attorney

If APS does decide to investigate an abuse report about you, you should strongly consider consulting with a law firm with experience in family law. A family law lawyer can help guide you through the process, deal with the agency on your behalf, and protect your rights.

Potential Lawsuit Against Who Reported You?

But maybe you're madder at your sister than you are at Shirley. You may want to sue her instead. That's understandable.

Immunity for Good Faith Reports

But in the vast majority of states, a person who reports suspected abuse in good faith is immune from suit under state law. So you face a big obstacle there.

Immunity May Be Lost for “Bad Faith" Reports

In a handful of states, you may be able to sue if you can prove that the person reported you in “bad faith." This doesn't mean that you have to prove that they are evil. What you would need to show is that the report against you was not only false but also that the reporter knew it was false when they phoned it in. In other words, you have to try to get into their head. This is hard to do. And it makes for a really hard standard to meet.

For example, in our situation, you'd need to show more than that you weren't taking money. You'd also need to prove that your sister knew you weren't taking money but filed a false report anyway. Even if she just suspected, but didn't know for sure, she'd likely be immune.

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

Criminal Penalties for False Elder 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 knowingly file a false report of elder abuse. You can face jail time and potentially large fines. So if you believe you have been falsely reported, you can go to the authorities and let them handle it.

If You Are Falsely Reported for Elder Abuse and Want To Sue, Hire an Attorney

Self-determination is important. But vulnerable adults cannot always take care of, let alone speak, for themselves. Any number of issues may arise, from mental health and self-neglect to actual adult maltreatment at someone else's hands.

If you believe a loved one is being abused, you should report it to law enforcement, social services, or your local APS office. The National Adult Protective Services Association (NAPSA) has a locator on its website if you need contact information from the national center.

If you find yourself the victim of a false report of abuse, you do have options. You should consult with an experienced family law attorney and decide what those are and how best to proceed in your situation.

Next Steps

Contact a qualified elder abuse attorney to help you and loved ones recognize and fight elder abuse.

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