While all 50 states have enacted laws that address the problem of elder abuse and neglect, the laws are not uniform. Under federal law, an older individual is a person who is 60 years of age and older. Many states follow the federal law and use the age of 60 as the baseline age for elderly individuals. Some state laws recognize that protected older individuals are 65 years of age and older and/or disabled.
Definition of Elder Abuse
Each state law specifically defines elder abuse. Typically, state law definitions include physical abuse, neglect, or a deprivation of care that results in physical harm or pain and/or mental suffering. Neglect may be defined as both passive and active neglect. Many states include financial exploitation of the elderly in their definitions of elder abuse. Sexual abuse, which involves any form of nonconsensual sexual touching, may also be specifically addressed. Some states even include self-neglect by elderly individuals in the definition of elder abuse.
Classification of Abuse as Criminal or Civil
There is a growing trend to treat elder abuse as a criminal offense with enhanced penalties and sentences. Elder abuse statutes provide a range of criminal punishments from misdemeanor to felony, fines, and/or jail time. A special classification for the elderly may be included in a broad range of criminal statutes including those that proscribe assault and battery, sexual assault, and property crimes such as theft and fraud. A few states have even included the elderly in their "hate crime" statutes.
Statutes may create special penalties for those who defraud elderly consumers such as double or treble damages. In some states, minimum sentencing ranges may be set for criminals convicted of committing crimes against the elderly. Sentencing schemes may be enhanced when the victim of the crime is an elderly person, i.e., the victim's status as an elderly person may be an aggravating factor to be considered in imposing the sentence. There may be a separate penalty scheme for entities and workers who abuse the elderly in institutional settings. In some states, nursing homes and other institutional caregivers and their works are subject to penalties including loss of license, censure, and fines.
Some states' elder abuse statutes provide for civil redress of elder abuse and allow for compensatory and punitive damages, costs, and attorney's fees.
Reporting Requirements
A majority of states now mandate reporting of elder abuse. Currently, only 16 states require all citizens to report elder abuse. Many states mandate reporting of elder abuse by health and human services professionals, long-term care facilities employees, and law enforcement personnel. A few states require financial professionals such as bankers to report elder abuse, while even fewer require the clergy to report elder abuse.
States also have different punishment schemes for failure to report. The majority of states now makes the failure to report elder abuse a misdemeanor and may punish that failure with a fine and/or jail time. Those charged with the responsibility of reporting elder abuse are generally required to have a "reasonable belief" that an elderly person has been the victim of elder abuse. A few states provide that the failure to report is a ground for civil liability. Institutional caregivers and their employers are also subject to penalties and sanctions for failing to report elder abuse. However, various levels of immunity from civil liability and retaliation for failure to report are afforded. If immunity is recognized, it generally does not extend to a reporter who is also the abuser. Typically, a reporter is afforded protection if he or she notifies the appropriate authorities of suspected elder abuse in "good faith."
Investigation Procedures
Most states designate the agency or entities that are responsible for receiving and investigating elder abuse reports. Certain agencies may be exclusively responsible for investigating abuse in institutional settings. Every state has appointed an ombudsman to investigate complaints of elder abuse in institutional settings. The investigative reach of some state ombudsmen may extend to domestic settings. A minority of states now compiles registries of facilities and caregivers that have been convicted of elder abuse or crimes involving the elderly. There is pending federal legislation that proposes to authorize background checks for all caregivers, but a few states currently have laws in place that authorize such criminal background checks.
The information required to complete the report, the timing of the ensuing investigation, and the agencies responsible for the investigation are designated by each state. Typically, the local adult protective services agency or police departments are identified as first contacts. It is also common for the identity of the reporter to remain confidential.
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