Abuse and Neglect of Older People
The Changing lytole of the Courts
in Elder-Abuse Cases
By Lori Stiegel
ur client, an older
candy (National Center on
Elder Abuse, (999). This
The growth in case law
article will discuss the reacaregiver in return tor her
sons there still is not much
promise to care for him
related to elder abuse reflects
case law, why that situauntil his death. Within two
tion is finally changing,
weeks of the transaction,
a significant shift·
and what those changes
the caregiver threw him
might mean.
out of the house. On mv
Before reading further,
first day as a legal sen;ces'lawver, I was assigned
readers might benefit from a brief review of the
to find case law that would support our client's
components of the judicial system and their
claim for the return of his house. Being naive
functions: Generally, state courts and court cases
and inexperienced, I thought, no problem; this
are classified as civil Or criminal. The civil courts
must happen aU the time in Florida with aU the
handle matters that are not criminal-in other
old people who live here, and there must be lots
words, matters such as contract disputes, claims
of case law. But there was a problem. While this
for damages resulting from negligence, restrainsort of thing did happen aU tOO often in Florida
ing orders or injunctions, divorce or separation.
(and elsewhere), there was almost no case law.
Within the broad range of civil jurisdiction are
After many hours (this was before the advent
specialized courts. For example, probate courts
of computer-assisted legal research), I did find
have jurisdiction over cases involving wills and
one case holding that in a situation such as our
estate administration and often address matters
client had experienced, the caregiver would be
of guardianship, conservatorship, and mental
presumed to have acted fraudulently. The carehealtll commitments as well. Family courts are
giver did not Overcome that presumption, and
a relatively neW type of specialized court; their
our client regained the title to his home.
jurisdiction encompasses family matters that
Almost eighteen years later, the body of case
include divorce, separation, custody, child suplaw on elder abuse is beginning to grow. During
port and visitation, adoption, juvenile delinthose intervening years, howe\'er, the incidence
guency, and child abuse and spouse abuse. Such
and awareness of elder abuse has risen significourts may hear some related criminal cases as
O
man, deeded his
house to his late wife's
SUlllffier 2000
"
59
GENERATIONS
well (Wood and Stiege], 1996). Criminal courts
handle cases in which individuals are prosecuted
by the state for an alleged violation oflaw. Federal courts, which are also beginning ro hear
more elder-abuse cases, hanclle both criminal
and civil matters.
WHY So LrITLE CASE LAw
ON ELDER ABUSE?
Case law is the term for judicial opinions that
are reported in court annals and serve as precedent for decisions in future cases. While everv
case filed in court eventually has a decision of
some sort-made by a judge, a jury, or a settlement reached by the parties- not all cases result
in judicial opinions and not all judicial opinions are recorded for posterity in case-law
reporters. Factors influencing a decision to
report a court decision may include the type of
case, the importance of a case, and the type and
level of court in which the case was heard. Deeisions rendered by State trial judges are oti:en not
reported. Trial court decisions that are appealed
to a higher court and result in opinions issued
by appellate court judges are usually reported.
[n other words, most cases that arc brought to
the courts are not reported and do not become
part of a body of case law. For example, in the
case discussed above, the judge simply issued
an order voiding the deed that our client had
given to the caregiver and returned ownership
of the house to him. The case was not reported
in court annals and thus did not become part
of case law.
Another relevant factor is that many of the
decisions rendered by the courts arc not categorized as elder-abuse decisions bv the judicial
system itself or by the companies that publish
court opinions. There is no keyword tor elder
abuse in use by the companies that publish those
opinions. TIUs situation means that whatever
case law on elder abuse does exist can be quite
difficult ro find, even with the more sophisticated capacities presented by computer-assisted
legal research. Our client's case, if it had resulted
in an opinion worthy of publication, would
have been categorized as a deed rescission case
or a fraud case, or both. An individual conducting legal research would not be able ro
determine that the deed rescission or fraud was
60
Summer 2000
due to an underlying issue of elder abuse without finding and reading the judge's opinion.
The more interesting and important reason
for the dearth of case law on elder abuse is that
most incidents of elder abuse are never brought
to the judicial system in the ti:rst place. Certainly,
not all incidents of elder abuse need to be or
should be addressed by the courts (Stiegel, 1995).
But in many cases, the courts could playa critical role in protecting the current victim or other
victims from abuse, compensating the victim
for damages, enabling victims to recoup financiallosses they have suffered, or punishing the
perpetrator. Nonetheless, there are numerous
reasons - personal and having to do with the
judicial system-that victims of elder abuse do
not seek relief from abuse or compensation for
damages resulting from abuse through the civil
justice system or cooperate with law enforcement officers and prosecutors who could bring
criminal charges against the abusers.
Reluctance, praaical problems, lack of k1WWledge. The current generation of older people is
extremely reluctant to take legal action against
or see criminal charges brought against fumily
members for whom they feel love or responsibility, caregivers upon whom they may be
dependent, and friends, neighbors, or fiduciaries in whom they have placed their trust. Explanations for this reluctance to take action include
not wanting to get the abuser in trOuble, dependence on the abuser, fear of further abuse or
retaliation, and fear that taking such action will
ultimately lead to being placed in a nursing
home or other instimtional setting. Practical
problems such as difficulty in traveling to a
lawyer's office or courthouse or the lack of an
available substitute caregiver to help someone
who is dependent on the victim while the victim pursues legal matters can also pose obstacles
to the pursuit oflegal remedies. What is more,
victims may not recognize that they are experiencing abuse or understand that the judicial
system can help them address their problem
(Stiege], 1995; Office ofJustice Programs, 1998).
DifJicttlty ofproof Elder abuse cases may be
difficult ro prove. Physical evidence may be
unavailable because of delays or failures in recognizing that abuse is occurring. Witnesses may
be unavailable as well. The victim's capacity to
Abuse and Neglect of Older Pe&fJle
testifY may be in question, either because the
capacity was lacking at the time of the abuse or
because it has diminished or been lost in the
intervening period. Many financial and sexual.
abuse cases raise the complex issue of''tmdue
influence:' Qualified expert wimesses may be
difficult to find.
Financial viability. Many of these cases may i
not be financially viable for the victim or the
lawyer. A victim may not be able to pay for a
lawyer's services because the victim has never
had much money or because the victim's life
savings were lost as a result of the exploitation
that would be the subject of the lawsuit. Compensatory damages may be low because of the
victim's life expectancy or physical, mental, or
employment status. Attorney'S fees or punitive
damages may not be awarded because the tacts
of the case may not meet the prerequisites of
state law (Stiegel, 1999). However, in lawsuits
about the quality of care delivered in nursing
homes, the trend is roward large awards for
punitive damages (Higgins, 1998).
Problems collecting pa:"'tt:nt. Even if the victim pursues a daim against the abuser and wins
the case, the abuser may not have the resources
to satisfY an order by the court to pay damages
to the victim (a "judgment" in legal parlance).
Collection of the judgment may be more feasible if the abuse was committed in an institutional setting or by a fiduciary, either of which
is more likely ro have "deep pockets:'
Slow pace ofthe legal process. TI,e slow pace and
customary delays of the legal process are particularlyonerous to older people in general and
to those who have been abused in particular.
Elder abuse has been shown ro increase mortality rates among victims (Lachs and Pillemer,
1998). There is always a risk that the victim will
die prior to trial.
Uick of sensitivity. Lack of knowledge about
and sensitivity to e1der·abuse victims among
private lawyers and prosecutors, law enforcement officers, court personnel, and judges can
also inhibit victims from bringing their cases to
the judicial system (Stiegel, 1995).
SITUATION Is CHANGrnG
More cases involving elder abuse are begin-
ning to make their way into the courtS, as the
growing number of reported cases attests. For
example a newsletter reporting on the field, Vutimizm-ion of the Elderly and Disabled, has Summarized thirty reported cases related to elder
abuse and some unreported trial court verdicts
in nursing home abuse cases since it first began
publication in May/June 1998. These cases
addressed a wide array of issues: immunity from
liability for people reporting abuse, civilliability for failing ro report abuse, types of actions
that constitute abuse, constitutionality of statutes
providing ctiminal penalties for abuse or allowing civil lawsuits ro continue afrer the death of
the victim, mental state required for criminal
liability, standards of proof for abuse in institutions, wrongful discharge of nursing home
employees for reporting abuse, and crinlinal
prosecutions for abuse. Another newsletter,
Medicaid Fraud Report, indicates a doubling of
ctiminal prosecutions for abuse of nursing home·
residents within a one-year period. Newspaper
and television coverage of court cases involving
elder abuse appears to be increasing.
Why is the judicial system hearing more cases
involving elder abuse? Is it simply because there
are more older people? Or more incidents ofcider
abuse? Is it because our society has become more
litigious? While these phenomena probably
explain some ofthe increase in court cases involving elder abuse, the remainder ofthis artide will
address the myriad other complex reasons.
NEW STATUTORY REMEDIES
Civil or equitable remedies such as restitution, constructive trusts, and compensatory
damages may be sought from a perpetrator of
cider abuse in order ro compensate the victim or
"make the person whole:' These remedies would
be obtained through lawsuits for assault and
bartery, breach of fiduciary duty, conversion,
false imprisonment, fraud, or negligence. There
are also other traditional civil actions such as
petitions for a guardian or conservator or for a
divorce or legal separation that may be used to
prevent further abuse, but such actions will not
recover the victim's losses.
Crinlinal prosecutions can be brought for
murder, manslaughter, sexual assault, rape,
assault and battery, theft, forgery, embezzlement, fraud, and a host of other crimes (Heisler,
Summer 2000
6r
GENERATIONS
1991). Even if a victim is able to overcome the
reluctance to take legal action against the perpetrator, these types oflegal actions are subject
to the limitations and problems discussed previously: the difficulty of proving the case, the
cost and financial viability for both the victim
and the lawyer, the slim possibility of actually
collecting damages or recouping exploited
money from the perpetrator, the slow pace of
the judicial system, and the lack of knowledge
about elder abuse among lawyers, prosecutors,
law enforcement officers, and judges.
Some state legislatures have begun recognizing the challenges faced by elder-abuse victims who seek civil-law and equitable remedies
from the judicial system and, as a result, have
enacted new Statutory remedies for victims of
elder abuse. Legislatures have also established
significant new provisions in the criminal
statutes. In addition, important changes in policy and practice have led to an increase in the
number of elder-abuse cases making their way
into the judicial system.
Elder-ahuse statutes. Several states have enacted
special elder-abuse statutes. Probablv the most
well known of these is California's Elder and
Dependent Adult Civil Protection Act. Irs intent
is to "enable interested persons to engage attorneys to take up the cause of abused elderlv persons and dependent adults:' The law does this
by establishing a civil remedy for physical abuse,
neglect, and fiduciary abuse; authorizing the
award of attorney's fees and COSts and pWlitive
damages under cettain circwnstances; and allowing a cause of action to survive if the victim dies,
meaning the heirs can continue the lawsuit. Arizona's adult protective services starute includes
a civil remedy and authorizes actual, consequential, and pWlitive damages; attome,'s fees
and costs; and divesrirure.
Illinois law authorizes treble damages for the
losses incurred by an "elderly or disabled person" as a result of financial exploitation when
an exploiter is criminally charged and fails or
refuses to rerum the victim's property following demand by the victim or the victim's legal
representative. The law also authorizes the court
to require the expoiter to pay attorney's fees
and court costs. Maine)s srarute on improvement of transfers of title creates a presumption
62
Summer 2000
that a "transfer of real estate or major transfer of
personal property or money for less than full
consideration by an elderly person who is
dependent on others to a person with whom
the elderly dependent person has a confidential
or fiduciary relationship" was the result of undue
influence unless the grantor was represented by
an independent counsel for the transaction. The
statute also authorizes a civil action for relief
(St;iegel, 1995; Moskowitz, 1998). In some states,
asSets that were exploited from an older victim
may be frozen to prevent dissipation.
CiPil rmiers ofprotection. Civil orders of protection may be available to elder-abuse victims,
many of whom are actually older victims of
domestic violence. Increasingly, states are
expanding their definition ofdomestic violence
to include other forms of family violence, such
as that committed by an adult child or grandchild against an older person.
Omsu»Wr protection ImPs. Consumer protection laws may provide a cause of action against
individuals or companies that financially exploit
older people. For example, nursing homes have
been subject to such claims for failure to provide the care that they advettised and contracted
to offer.
False claims acts. At the federal and state leve~
false claims act lawsuits may be appropriate in
instances where nursing homes fail to provide
the care for which they are reimbursed by the
government. The U.S. Attorney in Philadelphia
has entered into two settlements in cases against
nursing homes, for $roo,ooo and $500,000,
respectively, in addition to requirements for
facility monitoring and significant improvements in quality of care (Hoffinan, 1996). In
other jurisdictions, similar cases have been
brought or are under consideration.
ExpeditWn ofcases. A few states have enacted
laws or instituted court procedures that allow
cases involving older people to be expedited on
the court ealendar (Stiege~ 1995).
New or amended statutes have made elder
abuse, or at least cetrain aspects of it, a crime in
many states. For example, a number of states
have passed laws making elder neglect a ctime.
Some states have increased the penalties fur elder
abuse, either through the statutory imposition
of tougher penalties or through sentencing
Abuse and Neglect of Older People
enhancements for crimes committed against
older people (Stiegel, 1995).
CHANGES IN POLICY AND PRACTICE
RELATED TO ELDER ABUSE
A number of changes have occurred in policy
and practice related to the courts and, elder
abuse. For example, enhanced awarertess of
patient-abuse issues and emphasis on prosecuting such cases has led to a dranlatic increase in
the number of patient-abuse, neglect, and
exploitation cases prosecuted by Medicaid Fraud
Control Units. The fraud units are mandated
by the federal government and authorized to
prosecute patient abuse and mistreatment in
residential health facilities that receive Meclicaid
funds, as weU as fraud committed by Meclicaid
providers. The units must use their state's criminallaws to prosecute complaints of patient
abuse and neglect. There are W1its in aU jurisclictions except the District of Columbia (which
is in the process of developing one), Idal1o,
Nebraska, and North Dakota. Accorcling to The
Medicaid Fraud Rcpart produced by the National
Association of Attorneys General, in the first
six months of 1997 the lvledical Fraud Control
Units reported fortv-sLx cases of patient abuse,
neglect, or exploitation in which criminal
charges had been filed and either the defendant
pled guilty or no contest or a conviction was
obtained. In the first six months of 1998 and of
1999, the number of cases climbed to 92 and 95,
respectively.
Similarly, the advent of multidisciplinary
tcams and training has led to heigl1tened awareness among a wider variety of professionals
about elder abuse and the fact that there may
be civil remeclies Or criminal penalties for the
abuser's actions. Multiclisciplinary teanlS have
fostered better cooperation in addressing inclividual cases, systemic improvements, and legislative refoons.
1hining oflaw enforcement officers and prosecutors about elder abuse has also increased significantly in some areas of the country (Heisler,
2000). The increasing attention devoted to elder
abuse is, at least in part, due to federal and state
initiatives-many of which have been funded
by the U.S. Department ofJustice-that have
enhanced the role of the criminal justice system
in addr=ing problems like family violence or
nursing home abuse that were previously
thought of as "social problems:' Triad, a partnership of police, sheriffS, and aging advocates
that has received Department ofJustice funding, has begun to devote more attention to the
problem of elder abuse.
Other changes in prosecutor policy and practice have made it mOre likely that elder abuse
will be ptosecuted. These changes include ''vertieal prosecution" (whereby one attorney hancUes the case throughout the entire procedure)
and prosecuting the perpetrator even if the victim does not want to pr= charges Or cooperate with authorities (Heisler, 2000).
Education of civil lawyers about elder abuse
has also increased. The growth of elder law as a
practice specialty has fueled much of the lawyer
education. With Department ofJustice funding, the American Bar Association's Commission on Legal Problems of the Elderly and the
ABA Commission on Domestic Violence are
developing a curriculum for civil lawyers about
elder abuse and domestic violence.
Education of judges about elder abuse has
increased also. The ABA Commission on Legal
Problems of the Elderly and the National Association of Women Judges developed three curriculunls on elder abuse for judges and court
staff \vith funding from the State Justice Institute. Judges and court staff have been trained
with those materials in Tennessee, Illinois,
Florida, Washington, Georgia, and Ohio. WISconsin is adapting them and conducted a threeday training s=ion in June 2000.
CONCLUSiON
The growth in case law related to elder abuse
reflects a significant change in our approach to
the problem. Rather than viewing elder abuse as
a social problem to be addressed by humanservice agencies such as adult protective services
and aging organizations, we now view elder
abuse as a social and legal problem that is best
addressed by an array of services and legal
actions. The statutory, policy, and program
changes discussed above have both resulted
from and contibuted to this new perspective.
Other policy changes, particularly the U.S,
Department ofJustice's current emphasis on
Summer 2000
63
liENERATIONS
Lori A. Stie..qel, JD. is associate stajfdi1·ect01;
American Bar Association Commission on Legal
P,."bIc111S ofthe Elderly, Washi'iffto1l, D. C.
civil and criminal legal actions in response ro
nursing home abuse, may have dramatic impact
in the future. Much more remains to be done,
however. 'fremendous variations in srate sranItes
remain. Training of law enforcement officers,
REFERENCES
prosecutors, lawyers, court staft: and judges is tar
from commonplace. Providers of victim ser-
vices who aid crime victims in the criminal jusrice process are just beginning to [earn about
and assist elder-abuse victims (Nerenberg, 1999).
The unified family courts that bring a "therapeutic justice" approach ro issues oftamilv \;0lence still do not seem ro consider older people
to be part of the family (Wood and Stiegel,
1996). Professionals who arc concerned abour
elder-abuse victims need to continue implementing the creative changes that have been discussed in this article and to continue developing
appropriate statutes, policies, ,1l1d programs to
address the problem of elder abuse.
These trends in the justice system's response
to elder abuse are important not on1l· tor what
they reflecr about the changes in dder-abuse
policy and practice, but also tor what they
augur for the future. As stated earlier, reported
judicial opinions serve as precedem tor tuture
cases. Civil lawyers and prosecutors may be
more willing to take on a challenging case
when there is precedent on which
to
base or
develop legal theories and argwllems. COlIrt
cases lead to more court cases md li.rrther dL'VeIopmcnt of a body of law. Additionally, court
cases draw attention from aCldcmics and the
media and can thus lead ro enhanced awareness by the public, protessionals, and poliCY
makers. ~
6+
Summer 2000
~
Heisler, C. 1991. "The Role of the Criminal Justice
System in Elder Abuse Cases." Journal ofElder Abuse and
Ntlflect ~(I): 5-33·
Heisler, C. 2000. "Elder Abuse and the Criminal Jusrice System: New Awareness, New Responses:' Generations Summer 2000.
Higgins, M. 1998. "Getting Sued by Seniors." ABA
Journal 8+(12): 28-29.
Hoffinan, D. 1996. "Ensuring Quality Care TIu-ough
the Use of the Federal False Claims Act." BIFOCAL 17(1):
10-12.
Lachs, M., and Pillemer, K. 1998. '....TIle Mortality of
Elder Mistreatment:' Journal of the American Medical
Association 280(5): +28-32·
Moskowitz., S. 1998. "Saving Granny from the Wolf:
Elder Abuse and Neglecr-The Legal Framework." Omncaicllt LAw Review 31(1): 77-204-.
Nerenberg, L 1999. Vu.tim's Rights and Services: Assisting E/dcr(v Crime Victims. San Francisco: San Francisco
Consortium for the Prevention of Elder Abuse.
Office ofJustice Progmms. 1998. Focus Group on Crime
Victimization of Older Persons: Recommcndarrons to the
OjficcojJIIStice p"I-,;mms. Washington, D.C; U.S. Depan·
ment of Justice, NCT 175035.
Stiegd. L. 1995. Recommended Guidelines for State
GJttrts Handlin..." Cases Involving Eider Abuse. Washington, D.c.: American Bar Association Commission on
legal Problems of the Elderly.
Stiege~ L. 1999. «Civil Remedies for Victims of Elder
Abuse." Victim Advocate 1(2): 3-6.
\Vood, E., and Sticgcl, L. 1996. "Not Just for Kids:
Including Elders in the Family Court Concept." Clearinghouse RcvieII' 30(6): 589-96.
Copyright (C) 2000 American Bar Association.