• Elder Abuse Statutes in Pennsylvania and WWR’s Footprint States
  • August 12, 2013 | Author: Ashley Sweeney
  • Law Firm: Weltman, Weinberg & Reis Co., L.P.A. - Pittsburgh Office
  • A federal law known as the Elder Justice Act of 2009 was enacted as part of the Patient Protection and Affordable Care Act.1   This Elder Justice Act coordinates federal elder abuse detection and prevention programs within the Office of the Secretary of Health and Human Services. Among other things, the Act requires owners, operators and employees of long-term care facilities to report suspected crimes committed there.

    As the state with the third largest population of elderly in the county, it should come as no surprise that Pennsylvania2  has codified its own financial abuse statute.  That statute is called the Older Adults Protective Services Act, 35 P.S. § 10225.101 et seq., (hereinafter referred to as the “Act”) and as it currently stands, the laws in this area are quite broad.

    One aspect of the Act is designed to monitor and penalize individuals who owe a Pennsylvania senior citizen a fiduciary duty and violate that duty. Several causes of action can be advanced by the senior citizen in these types of cases, such as undue influence, lack of capacity, fraud, or negligence.3   There are potential criminal causes of action as well, including theft by deception and access device fraud.  The Act imposes civil and criminal penalties, including fines of no more than $2,500.00 and/or incarceration of no more than one year, on an individual or facility that breaches a fiduciary duty owed to an older resident.

    The Act is also designed to prevent marketing scams that target senior citizens. These laws, such as the unfair and deceptive practices acts, impose civil and criminal penalties on individuals and businesses that prey on senior citizens with a goal of defrauding them financially. Again, the penalties range from fines of up to $2,500.00 to imprisonment of no more than one year, or both.

    In each of our firm’s footprint states,4  elder abuse laws exist.  For example, Florida’s protective services statute protects elderly people from a variety of abuses such as exploitation.5   The statute imposes civil penalties for exploitation. Additionally, the protective statute allows the victim to recover actual and punitive damages from the abuser, as well as attorney’s fees and costs if the suit is successful.  Florida’s laws also criminalize exploitation of an elderly or disabled person.6   The penalty for exploitation varies with the amount of assets involved.

    Additionally, Indiana has an adult protective services statute.7   This statute forms an adult protective services unit and hotline.  It also creates a duty to report an endangered adult and provides civil and criminal immunity to the individual who reports the abuse or neglect.

    Ohio also has a protective services statute in addition to a statute with the health and safety standards of nursing home and residential care facilities.8   Similar to Indiana, Ohio creates a broad duty to report the abuse, neglect, or exploitation of an adult and grants civil and criminal immunity to the person reporting.  Failure to report could result in a fine.  Moreover, Ohio has a statute providing the health and safety standards which all nursing homes and residential care facilities must follow.9   Failure to adhere to the standards provided by the statute will result in the revocation of the facilities’ license.

    Michigan also has a protective services statute as well as a taskforce on elder abuse.10   Michigan’s statute provides that any person who is employed, licensed, registered, or certified to provide a human service who suspects an adult has been abused, neglected, or exploited shall immediately make a report.   A person acting in good faith who makes a report shall be immune from civil liability.  A person required to make a report who fails to do so is liable civilly for the damages proximately caused by the failure to report, and a civil fine of not more than $500 for each failure to report.

    Under the Illinois Elder Abuse and Neglect Act, abuse is defined to include exploitation of an eligible adult’s financial resources.11   Exploitation of an impaired elderly person is a crime under the criminal code.  In addition, Illinois also has an abuse and neglect act which specifically protects long-term care residents.12   A person required to make reports under this act who fails to comply with the requirements is guilty of a misdemeanor.

    Additionally, Kentucky has a general protection of adults statute, very similar to those discussed above, as well as a abuse registry which compiles information pertaining to the neglect or abuse of nursing home residents and the misappropriation of their property.13 

    Lastly, New Jersey has multiple elder abuse laws, including an adult protective services act which protects vulnerable adults from exploitation, neglect and abuse.  New Jersey also has a statute disallowing the neglect or abandonment of an elderly, disabled person.14 

    In 2009, there was 39.6 million elderly15  Americans.  By 2030, that number will nearly double, to 72.1 million.16   This increase in elderly population means that even more Americans will be at risk of abuse or neglect in their older years, especially if the difficult economic climate continues.  Consequently, we may see even more elder abuse statutes take effect in the coming years.  These laws are, and will continue to be, vital to the protection of the ever-growing elderly population.

    1 Pub. L. No. 111-148, § 2702, 124 Stat. 119, 318-319 (2010).
    2 The only states that have not codified an elder abuse statute are Arkansas, Florida, and South Dakota.  See State Resources, National Center on Elder Abuse, available at http://www.ncea.aoa.gov/Stop&under;Abuse/
    Get&under;Help/State/index.aspx, accessed July 19, 2013.
    3 See, e.g., Vine v. Commonwealth, 607 Pa. 648 (2010) (finding that a power of attorney was void when the elderly woman it was obtained from lacked capacity and her husband was using it to make withdrawals); Macpherson v. Magee Mem. Hosp. for Convalesence, 2013 Phila Ct. Com Pl. LEXIS (2013) (ordering Defendant nursing home to answer a complaint alleging that the nursing home was abusing and neglecting an elderly patient).
    4 Ohio, Pennsylvania, Illinois, Indiana, Kentucky, Michigan and New Jersey
    5 See FLA. STAT. ANN. § 415.102.
    6 See FLA. STAT. ANN. § 825.103.
    7 See IND. CODE ANN. § 12-10-3.
    8 See OHIO REV. CODE ANN. §§ 5101.60-72.
    9 See OHIO REV. CODE ANN. § 3721.
    10 See MICH. COMP. LAWS ANN. §§ 400.11 through 400.11f; Mich. Executive Order. No.2005-11 Task Force on Elder Abuse.
    11 See 320 ILL. COMP. STAT. § 20/2(e).
    12 See 210 ILL. COMP. STAT. 30/1-30/16.
    13 See KY. REV. STAT. ANN. § 209; KY. REV. STAT. ANN. § 216.936.
    14 See N.J. STAT. ANN. § 52:27D-406-426; N.J. STAT. ANN. § 30:1A-3; N.J. STAT. ANN. § 2C:24-8 A.
    15 Elderly being defined as “persons 65 years or older.”  See Aging Statistics, Administration on Aging, available at http://www.aoa.gov/Aging&under;Statistics/, accessed July 31, 2013.
    16 See id.