Legal Ethical Issues of Elder Abuse District Attorney
Legal & Ethical Issues of Elder Abuse District Attorney Walter P. Reed 22 nd Judicial District St. Tammany and Washington Parishes, Louisiana
Legal & Ethical Issues of Elder Abuse Presented by: Harold S. Bartholomew, Jr. EAPU Supervisor, 22 nd Judicial District, Office of Walter P. Reed, District Attorney St. Tammany and Washington Parishes
Percent of Total Population Age 65 and Over: 1900 to 2000 Source: U. S. Census Bureau, decennial census 1900 to 2000
A growing Elderly population Source: U. S. Census Bureau
Population Growth Source: U. S. Census Bureau.
Elder Abuse is Exploding • • Fastest growing age group No known cure for dementia Victims often do not report Family Members commit much of the abuse • Third fastest growth job is home care
$ Median Net Worth $120, 000 $112, 048 $114, 050 $120, 000 $108, 885 $100, 100 $100, 000 $83, 150 $80, 000 $55, 000 $60, 000 $44, 275 $40, 000 $20, 000 $7, 240 $0 Less 35 to 44 45 to 54 55 to 64 65 to 69 70 to 74 75 and than 35 older Total of 65 and all older Source: U. S. Census
Mandatory Reporting • La. R. S. 14: 403. 2 requires reporting of abuse by ANY PERSON “having cause to believe. ” • Failure to report = 6 months + $500. • Are you a person?
Mandatory Reporting of Abuse • La. R. S. 14: 403. 2 requires reporting of abuse: • C. Any person, including but not limited to a health, mental health, and social service practitioner, having cause to believe that an adult's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation shall report in accordance with Subsection D of this Section.
Mandatory Reporting of Abuse • D. (1) Reports reflecting the reporter's belief that an adult has been abused or neglected shall be made to any adult protection agency or to any local or state law enforcement agency. These reports need not name the persons suspected of the alleged abuse or neglect.
Elder Abuse is a Crime • Louisiana law (R. S. 14: 403. 2) protects adults aged 60 or older from acts or omissions which result in physical or emotional abuse and neglect, inflicted by caregivers and from self-neglect by an individual. Louisiana law also protects seniors from acts of financial exploitation and extortion.
What are some Signs of elder abuse? • Physical actions, • such as pushing, • hitting, • restraining an elder; • Emotional and verbal intimidation, • such as screaming, • threatening, • insulting an elder;
What are some Signs of elder abuse? • Withdrawal or isolation • Sexual exploitation • Neglect, • such as withholding of medicine, medical care, • food, personal care, • utilities, or daily necessities, or • overmedication, or • self-neglect to the point of danger;
Financial extortion or exploitation, • • such as theft or misuse of money, property or possessions of the elder.
Multiple criminal statutes apply specifically to elderly victims 14: 35. 2 Simple battery of the infirm. Minimum 30 days 14: 42 Aggravated Rape. 14: 50. 2 Perpetration or attempted perpetration of certain crimes of violence against a victim sixty-five years of age or older. Adds 3 years to maximum, at court’s discretion. 14: 67. 16 C. (1) (b) Identity theft. If victim 60 years of age or older, minimum goes from 0 years to 2 years. 14: 67. 21 Theft of assets of aged person,
Multiple criminal statutes apply specifically to elderly victims, cont’d 14: 93. 3 Cruelty to the infirmed, 14: 93. 4 Exploitation of the infirmed, 14: 93. 5 Sexual battery of the infirm, 14: 403. 2 Abuse and neglect of adults; reports; investigation; waiver of privileges; penalties; immunity. Makes reporting of elder abuse mandatory, and empowers District Attorneys to take steps to protect the elderly.
ALERT: Aged Law Enforcement Response Team R. S. 15: 1237 Creates a statewide network of ADAs Specialized training in: Elder Victims Witnesses Defendants
Exploitation of the infirmed is: • (1) The intentional expenditure, diminution, or use by any person, including a caregiver, of the property or assets of the infirmed, a disabled adult, or an aged person, including but not limited to a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility without the express voluntary consent of the resident or the consent of a legally authorized representative of an incompetent resident, or by means of fraudulent conduct, practices, or representations.
Exploitation of the infirmed is: • (2) The use of an infirmed person's, or aged person's, or disabled adult's power of attorney or guardianship for one's own profit or advantage by means of fraudulent conduct, practices, or representations. La. R. S. 14: 93. 4
What is the Elderly Protective Services Program? • The purpose of Elderly Protective Services (EPS) is to protect adults 60 years of age and older • who cannot physically or mentally protect themselves and who are harmed or threatened with harm through action or inaction by themselves or by the individuals responsible for their care or by other persons.
What does EPS do? • EPS acts to prevent, remedy, halt or hinder acts of abuse and neglect against an elder adult in the community, while promoting the maximum possible degree of personal freedom, dignity and selfdetermination. • Only when other efforts fail will EPS recommend referral or admission to an appropriate care facility for the elder adult, or seek judicial remedy to the situation.
How do I contact EPS? • Individuals may email questions or request information regarding abuse here: eps@goea. state. la. us State office Hotline number 1 -800 -2594990 Toll free number: 1 -800 -351 -4889 (Consumer Information Line)
Who should contact the people at EPS? • Physicians, medical interns, dentists, nurses, social workers, family counselors, police officers, licensed psychologists, coroners, registered podiatrists, occupational therapists, osteopaths, probation officers, staff of homemaker, home health agencies, or nursing facilities, financial directors, bank tellers, family members, friends. . . anyone who has reasonable cause to believe an adult aged 60 or older is being abused or neglected by a caregiver or by selfinflicted acts, should contact the EPS office.
What should be reported to EPS when an incident occurs? • Use your eyes and ears to note any unusual occurrences, such as: • burns, bruises, black or swollen eyes, broken bones, dilated pupils, evidence of restraints, bedsores, lack of clothing or dirty clothing, body odor, dehydrated or malnourished appearance, • no utilities in the home, disappearance of personal property, absence of food or medication, frequent change in doctors, discontinuation of visitor privileges, no visitors allowed, • individual expressions of shame, embarrassment or fear.
Immunity • The persons reporting incidents of abuse or neglect are immune from civil and criminal liability if they acted in good faith.
Failure to Report • Further, a person who knowingly fails to report abuse may be liable for fines and/or imprisonment. • It is everyone's responsibility to report abuse or neglect of an elder.
What happens after a report is made? • First, • Trained EPS staff screen all reports. If a case is ineligible for processing by the EPS office the case is referred to alternative community services and resources for action.
What happens after a report is made? • Eligible cases of abuse or neglect are investigated by EPS program staff, intervene when and where appropriate, and prepare a plan of resolution utilizing community resources. • EPS staff monitor this plan at each step until the situation is stabilized. EPS program staff may call for physical, psychiatric or psychological evaluations as necessary, and will assist in obtaining alternative living arrangements for older adults when the situation requires it.
What happens after a report is made? • When EPS staff determine that a case of abuse or neglect cannot be remedied by other means, they may seek judicial action and may refer the case to the local District Attorney for civil or criminal action.
How to report suspected abuse or neglect: • Telephone the toll free EPS Statewide Hotline (from within Louisiana only) at 1(800) 259 -4990 or, if out-of-state, call 1(225) 342 -9722. • Call your local law enforcement agency. • Ref. the Elderly Protective Services web site at: • http: //goea. louisiana. gov/eps. htm • Updated June 11, 2008
Ethical Issues • • • Power of Attorney Respect Support Who is your client? Professional Caregiver / Friend / Family
Power Of Attorney • Kinds of Power of Attorney • General • Medical • Special / Specific • Who’s the boss? • Principal (Elder person) is the boss • Agent / Power of Attorney has duties
La. C. C. Art. 215 Filial honor and respect • A child, whatever be his age, owes honor and respect to his father and mother.
La. C. C. Art. 229. Reciprocal… duties… • Children are bound to maintain their father and mother and other ascendants, who are in need, and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal. This reciprocal obligation is limited to life's basic necessities of food, clothing, shelter, and health care, and arises only upon proof of inability to obtain these necessities by other means or from other sources.
La. C. C. Art. 1621. Children; causes for disinherison … • A. A parent has just cause to disinherit a child if: • (1) The child has raised his hand to strike a parent, or has actually struck a parent; but a mere threat is not sufficient. • (2) The child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury. • (3) The child has attempted to take the life of a parent.
La. Art. 1621. Children; causes for disinherison by parents • • • (4) The child, without any reasonable basis, has accused a parent of committing a crime for which the law provides that the punishment could be life imprisonment or death. (5) The child has used any act of violence or coercion to hinder a parent from making a testament. (6) The child, being a minor, has married without the consent of the parent. (7) The child has been convicted of a crime for which the law provides that the punishment could be life imprisonment or death. (8) The child, after attaining the age of majority and knowing how to contact the parent, has failed to communicate with the parent without just cause for a period of two years, unless the child was on active duty in any of the military forces of the United States at the time. …
Who is your client? • Who is the client? • Professional Caregiver / Friend / Family • The following is taken from: • Elder Abuse: The Ethical Dilemma, February 1993. Beth Kingsley and Susan Johnson.
• abuse can present ethical dilemmas between contradictory obligations : • 1. to provide the intervention necessary to ensure client welfare; • 2. not to interfere with a client's freedom or autonomy. • Louisiana Has Mandatory Reporting!
Balancing? • How are the family's rights balanced with those of the senior, and • can a practitioner legitimize professional coercion, such as working with the carer or making decisions without the informed consent of the older person?
• The general societal ethic suggests action which does not meet the wishes of the older person are only justified when: • 1. there is a grave threat to basic social values or to fundamental social institutions;
• 2. there is clear and present danger that very great or irreversible harm will occur unless prompt preventive action is taken by an agent of society (Rhodes 1986).
• 1. Strategies to Promote Autonomy of Seniors
• (a) To prevent abuse
• (b) To deal with existing abuse
• 2. Strategies to prevent harm occurring to Seniors
• (a) To prevent abuse
• (b) To deal with existing abuse
• Elder Abuse: The Ethical Dilemma • [Unedited. Paper as presented at Conference of 23 -25 February 1993] • Beth Kingsley, School of Nursing, Curtin University, Perth, WA • Susan Johnson, Community Services, City of Gosnells, Perth, WA • © in compilation Australian Institute of Criminology 1996 • © in text Beth Kingsley and Susan Johnson
Identity Theft Resources • Federal Trade Commission • www. ftc. gov • . “Ditch the Pitch: Hanging Up on Telephone Hucksters. ”Available: http: //www. ftc. gov/bcp/conline/pubs/tmarkg/ditch. p df. • U. S. Department of Justice. • www. usdoj. gov • “What Is Telemarketing Fraud? ”Available: http: //www. usdoj. gov/criminal/fraud/telemarketing/ whatis. htm.
Investments Fraud • Recent trends in fraud include new twists on an old enemy, Investment Fraud.
Investments Fraud • The North American Securities Administrators Association estimates that securities fraud costs investors nearly $40 billion annually.
Local Concerns • The Cease and Desist Order issued by the Commissioner on January 29, 2008 against Matthew Pizzolato and Gulf Region Guaranty has been recalled. A hearing on the Order had been scheduled at the Division of Administrative Law for April 29, 2008, at which time the Commissioner was to present evidence showing the reasons for issuing the Order. However, this evidence is now in the hands of other law enforcement agencies, which makes it confidential. Therefore, the Commissioner is prohibited from showing this evidence to the Division of Administrative Law. As a result, the Order has been recalled.
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