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Elder Abuse and Consequences

Kingston Personal Injury Attorney

According to a recent publication by the National Center on Elder Abuse (NCEA), it defines neglect as the “refusal or failure by those responsible to provide food, shelter, health care or protection of a vulnerable elder.” The various states, for the purpose of policing, offer varying definitions of elder abuse. Researchers have used yet other definitions to describe and study the problem.

More than the sum of its legal and clinical definitions, elder neglect or abuse can lead to serious consequences, such as bedsores, gangrene, broken bones and hematoma. Left unchecked, the neglect of caretakers can result in death.

Defining “Those Responsible”

Whatever moral obligations may exist, there is generally no legal duty to help another person in peril. Such an affirmative duty arises only in certain instances:

  • When a statute imposes a duty of care: The NCEA reports that 30 states have enacted filial responsibility statutes imposing a legal duty on adult children to care for and protect their elderly parents.
  • When there is a contract creating a duty of care: Institutions and individuals can enter contracts that impose a duty to provide care for an elder, including agreements with long-term care facilities, home care agencies, nursing homes, or between individuals.
  • When special circumstances establish a duty of care: People who voluntarily assume the role of caregiver may then be seen to have a continuing duty to provide care or seek help from others to provide that care.

Duty of Care

Caregiver duties depend on the mechanism for imposing a duty of care. Statutes may define civil liability or set forth criminal penalties for caregiver acts and failures to act. In some cases, the duty arises out of a contractual relationship under which a person or business agrees to provide care for the elderly person.

Statutory Duties of Care

Filial responsibility statutes place a duty on adult children to provide financial support for their impoverished aging parents. Specific obligations vary from state to state but, NCEA says, most impose the duty to provide necessities such as food and shelter. While 30 states have enacted filial responsibility statutes, 11 of those states have never enforced the law.

Other statutes create caregiver duties based on different circumstances. For example, a caregiver may be someone related by blood or marriage and who:

  • Resides with the elderly relative
  • Lives in the same building with and regularly visits the aging relative
  • Both lives with the aged relative and should reasonably know that the relative is unable to care for himself or herself

Contractual Duties of Care

The NCEA states that usually perpetrators of institutional abuse are people who have a legal or contractual duty to provide elder victims with care and protection. For example, paid caregivers, staff members at a board and care facility, or doctors or nurses in a nursing home may all have promised to provide a level of care for an aged adult. After entering the contractual relationship, caregivers may not neglect, or intentionally or knowingly endanger, the elder.

Other Duties of Care

Even where there is no statutory definition of a caregiver and no contract, the courts have found a caregiver relationship can be created voluntarily. According to the NCEA, when determining whether a caregiver relationship exists, the court may examine:

  • Whether the parties lived together
  • What tasks the caregiver performed for the elder
  • Whether the caregiver described himself or herself as such to others, including the court, and whether other people viewed the individual as a caregiver
  • Whether help or involvement was requested in providing care

If the court finds a sufficient number of these criteria satisfied, the caregiver may be civilly or criminally liable for neglect or intentional abuse.

Elder neglect may have civil, criminal and administrative consequences; negligent caregivers may be subject to civil liability for money damages, criminal penalties and a prospective denial of the right to work with older or vulnerable persons. Family members or friends concerned about an elder should contact an elder abuse attorney to talk about their concerns and learn about the options available to redress neglect and endangerment.