ELDER ABUSE and NEGLECT – WHAT is it – WHO Is Accountable

May 22nd, 2014 written by Lance M. McKinney
 

No Elder Abuse or Neglect
Florida has made it state public policy to protect it’s elder population.  In particular, we have Florida Statute Chapter 415 which is titled “Adult Protective Services”.  This law defines what Elder Abuse and Neglect is and the penalties related to this crime.  See a similar example in Arizona.

What Is It?

Abuse

Abuse is defined as any “willful act or threatened act by a relative, care giver or household member which causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental or emotional health.”  This also includes failing to protect the vulnerable adult.

 

Neglect

Neglect is defined as the failure or omission on the part of the care giver or the vulnerable adult themselves to provide the care, supervision and services necessary to maintain the physical and mental health of the vulnerable adult.  These services include providing food, clothing, medicine, shelter, supervision and medical services that a prudent person would consider essential for the well being of a vulnerable adult.

 

Neglect also includes the failure of a care giver or vulnerable adult to make a reasonable effort to protect the vulnerable adult from abuse, neglect or exploitation by others.

 

Neglect can be repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or substantial risk of death.  In short, this means that neglect can be either self-neglect or care giver neglect of the vulnerable adult.

 

Who Is Accountable?

Vulnerable Adult

A vulnerable adult is any person who is 18 years of age or older, whose ability to perform normal activities of daily living or ability to provide for his or her own care or protection is impaired due to mental, emotional, sensory, long term physical or developmental disability or dysfunction.  It includes a person with brain damage or “infirmity of aging”.  The law addresses self neglect, so although the vulnerable adult who self neglects won’t be punished, they are subject to forced protective custody and medical care.  Although there are some additional protections for Elder Adults (60 or older) there is protection for all adults if they are “vulnerable”.  You should note that this does not require the person to be mentally incapacitated.

Care Giver

A care giver is a person who has been entrusted with or has assumed the responsibility for frequent or regular care or services to a vulnerable adult, either on a temporary or permanent basis.  There needs to be a commitment, agreement or understanding with the vulnerable adult or that person’s guardian that a care giver role exists.  The care giver can include, but is not limited to, relatives, household members, guardians, neighbors and employees and volunteers of facilities.  A facility includes any location that is providing day or residential care, or treatment for vulnerable adults.  It can include hospitals, state institutions, nursing homes, assisted living facilities, adult family care homes, adult daycare centers and others.  One of the surprises to many people is that this can include a spouse.  There have been cases of intentional bad actions but even failure to protect is defined as neglect, which could result even to the burned out care giving family member.

The Mandatory Tattletales

Certain groups of people have a mandatory duty to report abuse or neglect of a vulnerable adult.  They are health or mental health professionals, such as physicians, nurses, paramedics, hospital personnel, nursing home staff, assisted living staff, adult day care center staff and social workers. It also includes all state, county and municipal criminal justice employees or law enforcement officers, the state long term care ombudsman members. It even covers employees of banks, savings and loans and credit union officers who know or have reasonable cause to suspect that a vulnerable adult is being abused, neglected or exploited.

 

The mandatory reporting requires to the extent known the name, age, gender and location of each alleged victim, the name, addresses and phone numbers of the victim’s family members, the names, addresses and phone numbers of the alleged perpetrator and the name, address and phone number of the care giver of the victim if not the perpetrator and the name, address and phone number of the person reporting the abuse, neglect and exploitation.  The reporter should include any other information available which may establish the cause of the abuse and neglect whether past or continuing.  If there is a death related to the abuse or neglect, then that shall also be immediately reported to the appropriate medical examiner and criminal justice agency.

 

Any person who participates in making a report of abuse or neglect or participates in a judicial proceeding resulting from that report is presumed to be acting in good faith and unless that is proven otherwise, the reporter is immune from civil or criminal liability.  This immunity does not protect someone who is guilty themselves of committing abuse or neglect.  There is also protection from discharge from employment if any employee reports the abuse or neglect related to the employer.   Any discriminatory discharge that results from making the report entitles the person damaged to civil damages and punitive damages.  See an example of this.

 How is it Punished?

There are various criminal penalties for anyone who has a mandatory duty to report and knowingly and willfully fails to report a case of known or suspected abuse and neglect, which is a criminal misdemeanor of the second degree.  A person reporting suspected abuse or neglect is kept confidential. So, a person who knowingly and willingly makes public that confidential information in the central abuse hotline also commits a criminal misdemeanor of the second degree.   Since the mandatory reporter must report on even “suspected” actions, there is some effort to balance that by making it a crime to knowingly or willingly make a false report of abuse or neglect of a vulnerable adult or prompts someone else to make a false report.  It is a third degree felony.

 

A vulnerable adult who has been abused or neglected has the right to sue for actual and punitive damages related to that abuse and neglect.  The person who wins the lawsuit proving abuse and neglect will also be entitled to reasonable attorney fees and costs.

 

Examples

A few examples of neglect are:

 

Leaving a demented or disoriented vulnerable adult at home while the spouse or other care giver leaves to go to the grocery store if the vulnerable adult is not competent to provide for their own protection;

 

leaving a vulnerable adult in wet diapers for such a time that it either produces or reasonably could produce serious physical injury such as pressure sores and other infections;

 

a nurse or dental tech failing to report a caregiver (including a spouse) that won’t follow treatment recommendations by the medical provider;

 

a child caregiver leaving mom or dad at home while they work when they really need constant supervision.

 

If you are a caregiver or are concerned about the actions of a caregiver, contact us at 239-939-4888 to review your concerns or duties to report.  We specialize in helping people find and pay for good care.

Contact Osterhout & McKinney, P.A. Today

If you are seeking legal representation or have questions about our services, please call our office at (239) 939-4888 or contact our firm online.

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