Elder mistreatment (i.e. abuse and neglect) is defined as intentional actions that cause harm or create a serious risk of harm (whether or not harm is intended) to a vulnerable elder by a caregiver or other person who stands in a trust relationship to the elder. This includes failure by a caregiver to satisfy the elder’s basic needs or to protect the elder from harm (physical, emotional, sexual, financial, etc.)
Unfortunately, we don’t know for certain how many people are suffering from elder abuse and neglect, however, data from state Adult Protective Services (APS) agencies show an increasing trend in the reporting of elder abuse. Some statistics for cases of reported abuse are in the neighborhood of 1 in 10 elders and that doesn’t even account for financial abuse! (In a 2011 study in New York, financial exploitation was self-reported at a rate of 41 per 1,000 surveyed, which was higher than self-reported rates of emotional, physical, and sexual abuse or neglect.)
This month, elder abuse reform legislation was introduced in the DC Council’s Judiciary & Public Safety Committee. The bill (B20-107) is known as “The Charles and Hilda Mason’s Elder Abuse Clarification Act of 2013.” It would “establish stricter penalties for elder abuse or failure to report elder abuse, create more autonomy for elders, increase penalties for elder abuse, establish financial abuse as a form of elder abuse and prevent a convicted abuser from inheriting from” his or her victim.
Specifically, the proposed legislation:
- Raises the penalty from $300 to $2,000 for any person required to report elder abuse who willfully fails to do so, and raises the penalty for a willfully false report from $1,000 to $3,000;
- Raises the maximum penalties and maximum prison times for elder abuse from $1,000 & 180 days to $2,500 and one year;
- Adds a new paragraph to the guardianship statute, mandating (unless good cause shown) that an incapacitated ward be present and represented by counsel at any proceeding to remove an existing guardian or conservator. The ward can present evidence and cross-examine witnesses, including any court-appointed examiner or visitor;
- Adds financial abuse as a form of elder abuse – as a felony if property is valued at more than $500 and as a misdemeanor if property valued at less than $500;
- Prevents a convicted abuser (criminal abuse, neglect or financial abuse) from inheriting from his/her victim.
As we await the outcome of the DC legislation, one thing is clear: If you wait until you become unable to make decisions for yourself, you are at a higher risk for abuse. Similarly, advances in medical care mean that the Boomer generation will be living longer than generations before them, also increasing their risk for elder abuse.
In the estate planning community, we know that, regardless of state laws, there are steps that adults can take to prevent being abused down the line – particularly when it comes to financial abuse. Advanced estate and elder planning, by an experienced Elder Law Attorney, can put in place provisions (as well as checks and balances) to protect both you and your assets down the line.