The Intersection of Elder Abuse and Family Law
Cassie Murphy, Esq.
What is Elder Abuse?
In general, elder abuse refers to mistreatment of an older person that is committed by someone with whom the elder has a special relationship (for example, a spouse, sibling, child, friend, or caregiver). “Elder” is defined differently depending on the source, but it typically refers to a person aged 60 or older, a person who has reached the age of retirement, and/or a person who can no longer continue his family or employment roles due to physical decline.
Elder abuse can take any of the following forms:
- Physical Abuse: inflicting, or threatening to inflict, physical pain or injury on a vulnerable elder, or depriving them of a basic need.
- Emotional/Psychological Abuse: inflicting mental pain, anguish, or distress on an elder person through verbal or nonverbal acts.
- Sexual Abuse: non-consensual sexual contact of any kind, or coercing an elder to witness sexual behaviors.
- Financial Abuse/Exploitation: illegal taking, misuse, or concealment of funds, property, or assets of a vulnerable elder.
- Neglect: refusal or failure by those responsible to provide food, shelter, health care or protection for a vulnerable elder.
- Abandonment: the desertion of a vulnerable elder by anyone who has assumed the responsibility for care or custody of that person.
Thus, abuse of older people can be an overt act, or it can be an act of omission; similarly, it can be an intentional act, or an unintentional act. All 50 states have some form of elder abuse prevention laws.
Elder abuse can affect anyone, regardless of gender, ethnicity, or social status. However, family members are implicated in 90% of elder abuse cases. It is often more difficult for a victim of elder abuse to leave an abusive relationship because of the physical or mental impairments that may result from old age. In addition, an abuser is often the older person’s only form of companionship, rendering even more difficult action on the part of the abused elder.
What Should We as Practitioners Do in Cases of Elder Abuse?
The Adult Protective Services Act, N.J.S.A. 52:27D-406 et. seq., was created to provide protections to vulnerable adults living in a community setting, as further defined in the Act and herein. Adult Protective Services (“APS”) is the New Jersey government institution which receives and investigates reports of suspected abuse, neglect, and exploitation of these adults. Health care professionals, law enforcement officers, firefighters, paramedics, and emergency medical technicians are required to report suspicions of abuse, neglect, and exploitation. Most of the referrals to APS are made in connection with a claim of elder abuse.
Pursuant to the Act, the following definitions are relevant:
- “Abuse” is defined as “the willful infliction of physical pain, injury or mental anguish, unreasonable confinement, or the willful deprivation of services which are necessary to maintain a person’s physical and mental health;”
- “Neglect” is defined as “an act or failure to act by a vulnerable adult or his caretaker which results in the inadequate provision of care or services necessary to maintain the physical and mental health of the vulnerable adult, and which places the vulnerable adult in a situation which can result in serious injury or which is life-threatening;”
- “Exploitation” is defined as “the act or process of illegally or improperly using a person or his resources for another person’s profit or advantage;”
- “Vulnerable adult” is defined as “a person 18 years of age or older who resides in a community setting and who, because of a physical or mental illness, disability or deficiency, lacks sufficient understanding or capacity to make, communicate, or carry out decisions concerning his well-being and is the subject of abuse, neglect or exploitation;” and
- “Community setting” is defined as “a private residence or any noninstitutional setting in which a person may reside alone or with others, but shall not include residential health care facilities, rooming houses or boarding homes or any other facility or living arrangement subject to licensure by, operated by, or under contract with, a State department or agency.”
Based on the definitions set forth above, it is clear that the definitions of elder abuse as identified in the Adult Protective Services Act have significant overlap with the definitions of domestic violence as identified in the Prevention of Domestic Violence Act (“PDVA”). Compare, for example, the definition of “abuse” in the Adult Protective Services Act (“the willful infliction of physical pain, injury or mental anguish, unreasonable confinement, or the willful deprivation of services which are necessary to maintain a person’s physical and mental health”), with the definitions of “assault” (“A person is guilty of assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another…”), “harassment” (“a person commits a petty disorderly persons offense if, with purpose to harass another, he makes…a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm…”), and false imprisonment (“A person commits a disorderly persons offense if he knowingly restrains another unlawfully so as to interfere substantially with his liberty”) in the PDVA. All involve the exertion of power and control over a victim. In fact, many experts in the gerontology field view domestic violence of the elderly to fall under the broader umbrella of “elder abuse.”
Therefore, a practitioner should be facile with the different remedies available to his client depending on the particular circumstances of the case. Most family law practitioners are familiar with the procedures, rights, and remedies set forth in the PDVA, but are less familiar with the components of the Adult Protective Services Act.
A referral to APS results in an investigation of the potentially abused adult within 72 hours of the referral, involving a private interview between the abused party and a social worker. The APS worker may also interview other parties as may be warranted and review documents such as bank and medical records. Following an investigation, a determination is made as to the need for ongoing protective services, which may include “providing or arranging for appropriate services, obtaining financial benefits to which a person is entitled, and arranging for guardianship and other legal actions.” The APS worker is authorized to petition the Court in the event a vulnerable adult’s caretaker interferes with the provision of protective services, which services the vulnerable adult wishes to receive. The APS worker can also make a referral to law enforcement officials for criminal acts perpetuated against the abused party, and can refer the case to the Division of Developmental Disabilities or the Division of Mental Health and Hospitals in the Department of Human Services, in the event of a person who is in need of specialized care because of a developmental disability or mental illness.
Unlike the adult protective services model, domestic violence programs and protections do not investigate allegations of abuse. Instead, they rely upon the self-reporting of the victim. Moreover, the PDVA does not protect against violence perpetrated by an abuser who is or was not the significant other or household member of the victim, and its definitions of “domestic violence” are arguably narrower than the definitions of “abuse,” “neglect,” and “exploitation” in the Adult Protective Services Act. However, domestic violence programs and protections may be appropriate in circumstances where an elderly adult does not qualify for services pursuant to the Adult Protective Services Act, but who nonetheless needs assistance with the abuse he is suffering. Pursuant to the PDVA, remedies for a domestic violence victim include: a prohibition on contact or communication between the victim and abuser; the removal of the abuser from the victim’s residence; and monetary compensation and/or the payment of support from the abuser to the victim.
Special Problems Confronting Cases of Elder Abuse
In evaluating the remedies available to a client, practitioners should be aware of special problems confronting cases of elder abuse. A key risk factor for elder abuse is elders with cognitive or memory impairments, such as dementia. Worldwide, research has found that there is a greater level of abuse in families in which Alzheimer disease is present. In fact, disabled persons in general are more prone to experience abuse than non-disabled persons.
In the event of the abuse of a client who suffers from a cognitive impairment such as dementia, the client may not only be unwilling, but unable, to testify in a domestic violence proceeding regarding the abuse. A client with a cognitive impairment may be unable to recall important facts, may be viewed to be an unreliable witness, or may be unable to withstand the pressures of a Court proceeding. In circumstances in which an elderly victim is unwilling or unable to proceed with a domestic violence complaint, a practitioner should consider a referral to APS, which authorities have specialized skills in assisting victims with diminished mental capacity.
In particular, practitioners should consider a medical assessment to determine mental capacity, or the necessity of a guardian, in appropriate circumstances, through the assistance of APS or otherwise. Pursuant to the Adult Protective Services Act, APS may apply to the Court for an Order authorizing the provision of protective services if the vulnerable adult is unable to consent to such services. In that event, the Court is permitted to order a psychological examination to assess the vulnerable adult’s capacity. In addition, the Adult Protective Services Act authorizes APS to initiate a guardianship or conservatorship proceeding on behalf of the vulnerable adult.
Similarly, the New Jersey Court Rules, R. 4:86-1 et. seq., provide the parameters for a guardianship proceeding. (Practitioners should note that this Rule is wholly separate and apart from the Family Part Rule controlling the appointment of a guardian ad litem in a custody proceeding, R. 5:8B.) In relevant part, any complaint for the appointment of a guardian, which is filed by someone other than the elderly client, shall be accompanied by affidavits from at least two medical professionals, which affidavits shall include, among other requirements, “the affiant’s opinion of the extent to which the alleged incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged incapacitated person upon which this opinion is based, including a history of the alleged incapacitated person’s condition.”
If a practitioner suspects cognitive decline in his client, the American Bar Association recommends that the practitioner first conduct an informal discussion with the client regarding current events. If the client cannot “answer basic orientation questions or has been diagnosed with moderate- or severe-state Alzheimer’s,” a medical evaluation is likely appropriate. Should the medical evaluation conclude that the client lacks capacity, a guardianship proceeding is likely the next step.
Above all, a practitioner faced with the unusual circumstance of an elderly client with questionable mental capacity should consult with professionals and experts who specialize in this area of practice.