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Elder Abuse

UPDATED: April 11, 2012

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Elder abuse charges may involve not only direct physical abuse, but also neglect that results in the deterioration of the health of an elderly individual. The general charge of elder abuse occurs when a person causes an elderly person harm or permits an elderly person to suffer any unjustifiable physical pain or mental suffering. Because elder abuse includes a wide range of acts and omissions, a defendant should understand the offenses associated with elder abuse, any potential defenses, and the consequences of an elder abuse conviction.

Elements of Elder Abuse Charges

Elder abuse charges are categorized as assaultive offenses, even when the abuse is based on neglect. Some states use the title elder abuse when charging this offense. Others utilize headings like injury to the elderly or create enhanced penalties under their assault statutes for elderly victims. Elder abuse includes reckless, intentional, or knowing bodily injury to an elderly person. An elderly person is anyone the age of 65 and above. These statutes are designed to protect particularly vulnerable victims, and thus tend to be broader than basic assault statutes. Elder abuse statutes do not limit charges to injuries which are the result of a direct assault or striking of an elderly person.

Elder abuse charges can also include omissions, or failure to take action, which results in the neglect of supervision or care of an elderly person. For example, if a regular attendant of an elderly person at an assisted living facility knows that an elderly person cannot get out bed and fails to assist them in occasional movement to prevent bed sores and other problems, then the attendant could be charged with elder abuse if the victim suffered injuries as a result of the neglect. Regardless of which type of elder abuse is charged, courts will consider a series of factors including the condition of the victim prior to the abuse, where the abuse took place, the extent of the pain or injuries, and the degree of force used by the defendant.

The elements of an elder abuse charge include proof that: the victim is an elderly person, an act or omission occurred, and that the victim suffered some injury as a result. The act can be a direct or intentional assault on the elderly victim. An omission can include a wide array of failures including not providing sufficient food, medical care, or hygiene support. Some elder abuse charges based on omissions also require proof that the defendant assumed some caregiver function over the elderly victim. An adult child is not automatically responsible for the neglect of his elderly parents until he actually assumes responsibility for the care of his elderly parent.

The final element is causation. It’s not enough to demonstrate an injury to prove elder abuse. Law enforcement must show a direct link between the injury and the behavior of the defendant. Showing that the actions of the defendant were not the cause of the injuries is a common defense to elder abuse charges.

Defenses to an Elder Abuse Charge

Elderly victims tend to have medical issues associated with aging. Because of this, an elderly victim may have bodily injury, but the injury may be the result of an ongoing medical condition, rather than an act or omission by a caregiver. Some elderly individuals are more susceptible to certain types of injuries than others. For example, if a caregiver must frequently lift an elderly person, he may need to grip the elder's arm tightly to assist with the lifting process. If the elderly person bruises easily, the causation is not necessarily the gripping action by the defendant, but rather a medical condition that causes the elderly adult to bruise easily.

Other defenses focus on the reasonableness of the care provided to the elderly individual. In Texas, for example, it is a defense if the caregiver was strictly following the instructions of a licensed physician. Even if a state’s elder abuse statute does not list this defense, the concept can still be helpful as a punishment mitigation strategy since the level of punishment is usually in relation to the extent of a defendant’s intent. In other words, less intent to cause harm means the defendant is less at fault, which generally means a lower level of punishment.

Elder Abuse Punishment and Consequences

Most elder abuse offenses are felony level offenses. Elder abuse charges based on omissions or negligent/reckless conduct tend to fall in the lower end of felony charges (or higher end of gross misdemeanors), ranging from one to three years in prison. Elder abuse charges based on intentional or knowing conduct tend to fall in the mid-range level of felony offenses, ranging from two to twenty years. The extent of injury can also affect the punishment range. Minor injuries result in a lower punishment range. More serious injuries usually result in higher level elder abuse charges. If a person only endangers an elderly person, but the victim is not injured, some states, like Nevada, will punish the neglect or risk of harm as a misdemeanor offense.

The acts which constitute an elder abuse charge sometimes overlap with other offenses like assault, spousal abuse, and financial exploitation of  the elderly. Because many state legislatures are concerned about the vulnerability of elderly victims, many states authorize a defendant to be prosecuted for both charges, not just the one that fits best. This can result in a stacking of offenses, which means even more jail time.

Elder abuse charges can have other consequences outside of the criminal arena. If the defendant maintains a state license related to the care of others, like nursing or home health care, then a defendant’s license could potentially be revoked.  If the defendant was in line to inherit or receive a gift from the elderly victim upon death, then he could also become disqualified from receiving the inheritance.

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