Older Adult Abuse: Legal Overview

What Is Older Adult Abuse?

Older adult law, sometimes called “elder law,” covers a range of legal topics applying to people over the age of 65. Unfortunately, elder abuse cases are a large part of this legal area. The U.S. Department of Justice estimates that up to 10% of older adults over the age of 65 experience abuse each year.

Someone commits older adult abuse by subjecting a person over 65 to:

• Physical, emotional, or sexual mistreatment
• Neglect or abandonment
• Exploitation for financial or material gain

Even self-neglect, where an older adult fails to perform essential self-care tasks, may be characterized as older adult abuse. You can be liable for abuse if you don’t refer the abuse to adult protective services (APS), a long-term care ombudsman, or the police.

Older Adult Abuse Basics

Older adult individuals are often more vulnerable to various forms of abuse. They tend to have assets that they have accumulated through their lives and may also experience mental or physical limitations.

It is essential to know the laws protecting our loved ones from abuse, how to spot and report elder abuse, and what types of elder abuse exist.

When Does Older Adult Abuse Take Place?

Abuse can happen anytime to someone of any gender identity, culture, or socioeconomic level.

Abuse is more common when an elderly person has a mental health impairment like Alzheimer’s or dementia. They may experience mental incapacity, struggle to make sound judgments with assets, and have difficulty seeking help.

Without the proper protection, older adults can find themselves transferring away their assets. This is often the result of:

• The undue influence of another person
• Fraud or scams
• Physical abuse, psychological abuse, and/or sexual abuse, without the ability to report such abuse to the authorities

There are also more subtle forms of older adult abuse. Family members, caregivers, or “new friends” may pressure seniors to alter their estate plans. Changes to a will, a trust, or a power of attorney are often the hardest to detect.

Laws on Older Adult Abuse

The Elder Justice Act (EJA) is the first federal law to address older person abuse specifically. The U.S. Department of Health and Human Services also funds the National Center on Elder Abuse (NCEA). All 50 states and the District of Columbia provide APS programs for victims.

While older adults usually are defined as those 65 and older, most laws addressing older adult abuse also apply to vulnerable adults of any age. They are often similar to child abuse laws.

Most experts agree that older adult abuse usually happens in the victim’s own home or the facility of their care provider or assisted living facility. The wrongdoer is often a family member.

Victims often are:

• Confused about abusive acts
• Kept isolated
• Unwilling to report a family member
• Unaware of the abuse (especially if it is financial abuse)

An estimated one out of every 10 older adults in the United States experiences some type of abuse. Fewer than 20% of those cases ever get reported, according to the NCEA.

Older Adult Abuse and Criminal Law

Individuals accused of committing older adult abuse may be prosecuted under a given jurisdiction’s general criminal code. This means the crime could be called assault, battery, fraud, theft, rape, etc.

Some states have adopted statutes that provide explicit criminal penalties for older adult abuse in its various forms. Others have enacted stricter penalties for certain crimes when older adults are the victims.

Some states’ criminal justice systems began changing to better respond to instances of older adult abuse in the 21st century. A factor in this change is the increasing population of aging Baby Boomers.

In California, for example, the State Attorney General’s Office assigns a single prosecutor to vertically prosecute cases where individuals 65 and over have been physically or financially abused. The goal is to help provide more continuity and success in these types of cases. California also has implemented specialized forensic review teams to better identify and respond to suspected cases of older adult abuse.

Illinois passed the Illinois Older Adult Abuse and Neglect Act in 1988, which includes provisions to help law enforcement and social workers better respond to older adult abuse reports. This includes a mandate that older adult care (and other) professionals in contact with older adults aged 60 and older, who cannot care for themselves, must report any signs of abuse.

At the federal level, “fiduciary abuse specialist teams” (FASTs) consist of FBI agents, accountants, insurance claims detectives, and other professionals. They are more aggressively pursuing cases of financial older adult abuse.

Older Adult Abuse and Civil Liability

Civil liability resulting from older adult abuse is handled at the state level. Some states allow the recovery of punitive damages, court costs, and attorney’s fees in addition to compensatory damages.

Nursing homes and other long-term care facilities may be subject to lawsuits for:

• Failing to provide adequate living conditions or adequate medical care
• Over-prescribing drugs
• Financial fraud
• Inflicting physical harm
• Other forms of abuse or exploitation

Adult Protective Services (APS)

Adult protective services (APS) is similar to child protective services. It provides for the safety, health, and overall well-being of adults with special needs.

APS, facilitated by state governments, serves all vulnerable adults who are victims of mistreatment and neglect. It also serves those who are unable to care for or protect themselves. This includes adults of all ages with disabilities as well as older adults.

APS interventions include (but are not limited to) the following:

• Receiving reports of suspected abuse
• Investigating reports of abuse
• Evaluating the victim’s risks
• Assessing the victim’s ability to understand being at-risk and to give informed consent
• Drafting a case plan for an abused adult
• Arranging for needed care (such as emergency shelter, medical attention, legal consultation, and related services)
• Monitoring of services rendered
• Performing a general evaluation of each case

APS caseworkers are the first to respond to reports of abuse, neglect, exploitation, and related offenses. They investigate all issues for other vulnerable adults, including reports of self-neglect.

Most state laws that specifically address older adult abuse establish reporting requirements. This includes:

• Penalizing mandated first responders who fail to report abuse
• Outlining procedures for investigating reports
• Providing for emergency protection, guardianship, health care, and other vital services

These state laws heavily involve the operations of adult protective services.

Typical Forms of Older Adult Abuse

There are various types of older adult abuse – some less obvious than others. Every form is just as serious regarding the harm that can be done to an older adult person’s well-being or financial assets.

Abuse can involve:

• Pressure from family, friends, or caregivers to revise an estate plan or transfer assets
• Phone or internet scams by companies targeting older adults
• Some form of physical, emotional, mental, or sexual abuse
• Preying upon feelings of fear or loneliness by forcing an older adult victim to take certain actions
• Threats, violence, and domestic violence

Fortunately, there are tools that can help you detect older adult abuse, even in its early stages. These tools can allow you to intervene, report the case to the proper authorities, and protect a potential or actual victim of older adult abuse.

Example of Financial Older Adult Abuse

Imagine rushing to the hospital after learning that your older adult parent has had a stroke and will need long-term care. On arriving, you find out that your parent no longer has the long-term care policy that you thought was in place to cover this very situation.

As you dig deeper, you find that your parent recently signed a power of attorney naming a stranger as an agent with complete authority over your parent’s financial assets and Social Security benefits.

That stranger cashed out everything, leaving your parent without the financial resources needed for future care and expenses. Unfortunately, situations like this are more common than most people realize.

If you feel that your loved one was coerced into signing a power of attorney, you will need an attorney’s help. A lawyer can help prove that the document was created under an abusive situation and help your loved one reclaim control of their finances.

How To Identify Older Adult Abuse

Detecting older adult abuse is essential and can be lifesaving. The risk factors include social isolation, mental illness, lack of mobility, or lack of family contact. Read this checklist of signs of mental, physical, sexual, or financial abuse.

There are also basic, preliminary questions that many medical professionals ask their older adult patients. This helps determine whether there are any indications of older adult abuse.

How To Report Older Adult Abuse

If you become aware of an incident of older adult abuse, it’s important to report it to the appropriate authorities immediately. This will help protect the older adult’s health and assets and ensure they can access the many available support services.

The resources below can help the victim through the process of recovery and protect them from future abuse. These resources will also show you how to report suspicions of older adult abuse and where to find the local adult social services responsible for protecting victims of older adult abuse in your area.

Each resource below includes information on specific professionals who are required by law to report suspicions of older adult abuse. This is important, as many of these requirements provide penalties if a professional who’s required to report older adult abuse fails to submit a timely report to the proper authorities.

Resources for Reporting Elder Abuse

See FindLaw’s Reporting Older Adult Abuse page for detailed information about alerting authorities. The NCEA provides a state directory of resources on older adult abuse. They provide hotlines, prevention resources, applicable older adult abuse laws, and links to state APS websites.

You can also direct questions to an elder law attorney or another professional regarding the protections that are available to older adult abuse victims in your area.

DIY forms and resources are also available if you want to create a living will, power of attorney, or living trust.

Legal Remedies: Your State Laws Matter

There are various criminal and civil laws (and other pending legislation) designed to protect against older adult abuse. Where a victim of older adult abuse lives can often determine what legal remedies are available. Most laws protecting against older adult abuse exist at the state level rather than the federal level.

Although all states have general laws prohibiting physical or sexual abuse or theft, many states have criminal and civil laws specifically protecting older adult victims.

An attorney near you can explain how your state’s laws apply to your loved one’s situation and available legal protections. Find local legal help now.

Some of these laws require professionals, such as doctors, to report any signs and suspicions of older adult abuse. They are often best situated to detect abuse given their regular interactions with older adult patients.

Some states even grant older adults the ability to file civil complaints to recover any damages caused by older adult abuse, particularly when such abuse involves financial exploitation.

Protect Your Older Loved One: Get Legal Help

Various human service agencies and organizations are part of the effort to address and prevent older adult abuse. An attorney can help you get a better understanding of the specific steps to take to assist a victim of older adult abuse.

Because there are often serious legal implications involved in cases of older adult abuse, it’s also a good idea to contact a local attorney specializing in elder law for the specific rights and remedies available in your state. Your older loved one will be grateful you did.

FindLaw’s directory of elder law attorneys can get you started. Enter your city or ZIP code for a list of qualified legal professionals near you. Your search results will also show important details about prospective attorneys, like ratings and whether they offer free case evaluations.