Elder Abuse Law Background Informtion
Elder Abuse Law Background Information Information about Laws Related to Elder Abuse1 -------------------------------------------------------------------------------- Overview This Web page provides background information about federal and state statutes related to elder abuse. It also provides for each state and the District of Columbia the citation to three categories of state laws: adult protective services, institutional abuse, and the long term care ombudsman program. These three categories are explained below. Criminal laws are also discussed briefly, although citations for them are not included on this Web page. Although they are not included in this document, other laws in a jurisdiction may provide remedies or authorize services for older abused persons. For example, a state's domestic violence or family violence law may provide useful tools such as restraining orders, even if only in limited instances of elder abuse (i.e., physical abuse committed by a spouse or certain other persons included in the state's law). State laws on guardianship/conservatorship and durable powers of attorney may be important in cases of elder abuse. Moreover, regulations and policies may supplement a state's laws relating to elder abuse. The Web page also includes a discussion of the resources that an individual can use to obtain copies of state statutes. Copies of federal and state laws are NOT available from the National Center on Elder Abuse or the American Bar Association Commission on Law and Aging. This document is based on information current at the beginning of April 1999. Statutory citations do not change often, but there is always the possibility that a law will be revised and renumbered or even repealed. The National Center on Elder Abuse staff will update this information periodically. If you are aware of changes or errors, please feel free to notify the Center by e-mail at NCEA@NASUA.ORG and we will update or correct the information as quickly as possible. -------------------------------------------------------------------------------- Federal Law on Elder Abuse Federal laws on child abuse and domestic violence fund services and shelters for victims, but there is no comparable federal law on elder abuse. The federal Older Americans Act (42 U.S.C. 3001 et seq., as amended) does provide definitions of elder abuse and authorizes the use of federal funds for the National Center on Elder Abuse and for certain elder abuse awareness, training, and coordination activities in states and local communities, but does not fund adult protective services or shelters for abused older persons. -------------------------------------------------------------------------------- Adult Protective Services Laws All fifty states and the District of Columbia have enacted legislation authorizing the provision of adult protective services (APS) in cases of elder abuse. Generally, these APS laws establish a system for the reporting and investigation of elder abuse and for the provision of social services to help the victim and ameliorate the abuse. In most jurisdictions, these laws pertain to abused adults who have a disability/vulnerability/impairment as defined by state law, not just to older persons. These statutes vary widely in: the age at or circumstances under which a victim is eligible to receive protective services; the definition of abuse; types of abuse, neglect and exploitation that are covered; classification of the abuse as criminal or civil; reporting (mandatory or voluntary); investigation responsibility and procedures; and remedies for abuse. Some state APS laws only relate to individuals who reside in the community (what is called "domestic abuse"), while other APS laws also include individuals who reside in long term care facilities (known as "institutional abuse"). Each state defines long term care facility (LTCF) differently; moreover, some states include other types of institutions (such as mental health facilities) in their statutes also. -------------------------------------------------------------------------------- Institutional Abuse Laws In some states where the APS law only covers individuals who reside in the community, a separate law addresses institutional abuse. Like the APS laws, institutional abuse statutes create a mechanism for reporting, investigating and addressing incidents of elder abuse that occur in long term care facilities (LTCFs) or other facilities covered under the law. -------------------------------------------------------------------------------- Long Term Care Ombudsman Program Additionally, all states and the District of Columbia have laws authorizing the Long Term Care Ombudsman Program (LTCOP), which is responsible for advocating on behalf of long term care facility residents who experience abuse, violations of their rights, or other problems. LTCOPs are mandated in each state as a condition of receiving federal funds under the Older Americans Act. LTCOPs are an integral part of the systemic response to institutional elder abuse. LTCOPs may discover an abusive situation when responding to complaints within a facility and then, if appropriate, make a referral to an APS program, a law enforcement agency, or the agency responsible for licensing and certifying such facilities. Moreover, in some states, the LTCOP actually fulfills the role of adult protective services and has the legal authority to investigate and respond to abuse occurring within long term care facilities. -------------------------------------------------------------------------------- Criminal Laws Although they are not included in this document, an increasing number of states are passing laws that provide explicit criminal penalties for various forms of elder abuse. Legislatures are also signaling their intent that elder abuse be treated as a crime in other ways. For example, some APS laws include a provision stating that elder abuse may be prosecuted criminally, while others define certain acts (e.g., sexual abuse) in the same words or by reference to definitions that are used in the criminal laws. Even if there is not a specific statute or provision authorizing criminal prosecution for elder abuse, a jurisdiction's basic criminal laws (e.g., battery, assault, theft, fraud, rape, manslaughter, or murder) can be used to prosecute someone who has committed an act of abuse against an older person. Some legislatures have enacted enhanced penalties for certain crimes against older persons. -------------------------------------------------------------------------------- Other Relevant Laws Other state laws may be pertinent in cases involving elder abuse, even though they are not cited in this document. Such laws include those addressing guardianship/conservatorship, durable powers of attorney, and domestic violence or family violence prevention. -------------------------------------------------------------------------------- To Find Out More about Federal Elder Rights Law See Older Americans Act: Title VII Vulnerable Elder Rights Protection http://www.elderabusecenter.org/default.cfm?p=backgrounder.cfm