Moskowitz, Seymour

English

Valparaiso University

Valparaiso UniversityValpoScholarLaw Faculty Publications Law Faculty Presentations and Publications1998New Remedies for Elder Abuse and NeglectSeymour MoskowitzValparaiso University School of LawFollow this and additional works at: http://scholar.valpo.edu/law_fac_pubsPart of the Elder Law CommonsThis Article is brought to you for free and open access by the Law Faculty Presentations and Publications at ValpoScholar. It has been accepted forinclusion in Law Faculty Publications by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staffmember at scholar@valpo.edu.Recommended CitationSeymour Moskowitz, New Remedies for Elder Abuse and Neglect, Prob. & Prop., Jan.-Feb. 1998, at 52.buse and neglect of the elderly present a profound paradox. Most people envision their later years filled with caring and supportive family, financial security and use-ful, fulfilling activity. They tend to remember a past when mistreatment of the aged was not a national issue. Yet a vast body of evidence indicates that a shocking percentage of society's senior citizens are mistreated abused by family or institutional caregivers or neglected in their basic needs. Although precise statistics are impossi-ble to obtain, generally accepted esti-mates place the number of abused or neglected elderly in the United States at 2 million per year. The mistreatment may take many forms: • Physical abuse: violent conduct resulting in pain or bodily injury (e.g., battery, improper use of restraints and molesting). • e By Seymour Moskowitz • Psychological abuse: behavior that induces significant mental anguish (e.g., threats, harassment), causing depression, nervous system disorders, physical illness and, in extreme cases, suicide. • Financial abuse or exploitation: theft or conversion of property by the elder's relatives, caregivers or others. • Neglect: failure to fulfill a care-taking obligation necessary to main-tain the elder's physical and mental well-being. Neglect may be intentional or negligent, resulting from the care-taker's own · · · ty or ignorance. This article presents background information on elder abuse and neglect, outlines its legal context and discusses the critical role lawyers can play in dealing with this important issue. Although criminal law has been the traditional legal tool to combat elder abuse, this article suggests using civil damages as an alternate means of ameliorating elder mistreatment. Conunon law and statutory remedies, used by lawyers in civil practice, can become significant new weapons in responding to this ubiquitous problem . • The 'Discovery' of Elder Mistreatment In the past 30 years, the popular image of an idealized and peaceful American family has been shattered. In 1962, in a pioneering article, C. Henry Kempe and his colleagues called the medical community's atten-tion to the problem of physical child abuse, coining the term "battered child syndrome." 181 J. Am. Med. Ass'n 17-24 (1962). Within a few years, volumes of research on child abuse surfaced. All 50 states enacted legislation requiring professionals.-including doctors, nurses and social workers to report suspected child "The shocking statistics of elder mistreatm.ent should alert professionals to the need to assess clients for possible abuse and neglect. This requires sensitivity to the sometimes subtle indications of abuse as well as general knowledge and orientation to the problem." 52 Probate & Property Health and social workers are often the first professionals who confront cases of suspected elder mistreatment, yet many studies indi-cate that they rarely report it. Many physicians report that the fear of court appearances, possible anger of the abuser and potential loss of confiden-tiality deter them from reporting. It is unlikely that social workers, nurses, psychologists or others with a duty to report comply at a rate higher than physicians. Identification of Elder Mistreatment The shocking statistics of elder mistreatment should alert profession-als to the need to assess clients for possible abuse and neglect. This requires sensitivity to the sometimes subtle indications of abuse as well as general knowledge and orientation to the problem. Professionals in family service agencies, hospital emergency departments, primary care clinics and other institutions that serve the elderly must be able to recognize the signs and symptoms of various forms of elder mistreatment. If these professionals do not make adeqt1ate assessments, ask proper questions or investigate, cases will be undetected. This will often result in additional injury to the elderly patient or client because elder abuse, like spouse and child abuse, follows cyclical patterns and the victim is likely to experience repeated abuse. Hospitals and medical profession-als clearly have a role in identifying and preventing elqer abuse, but lawyers also have an important role. Some states include lawyers withln the class of mandated reporters. Lawyers should inform older clients that they have fundamental rights to privacy, autonomy, asset control and freedom from abuse. Recent statutes and decisions have stressed the client's right to control medical and personal decision making. In addition, lawyers working with or on behalf of elderly clients should be cautious not to unwittingly facilitate 54 financial abuse by drafting instru-ments for execution by incompetent individuals or by failing to advise older people of the consequences of legal action. Certain situations will require independent counsel for the elderly client. Potential Legal Consequences State laws typically make the failure to report suspected elder mis-treatment to public authorities a crimi-nal offense. Most states make these omissions a misdemeanor, but sanc-tions are often minor or unspecified. Statutes often require a mental state of willfulness to prove a violation. Crim-inal enforcement of these reporting laws is almost nonexistent for a wide variety of reasons. Few actual cases of prosecution against doctors, nurses or other professionals exist. A computer search of published decisions in all states between 1994 and 1997 yielded only one prosecution based on these statutes, and even that case did not directly involve a failure to report. Civil Liability for Failure to Assess, Treat and Report In addition to criminal enforce-ment, lawyers can use mandatory reporting laws in civil actions. Tort suits for damages against profession-als who fail to diagnose and report elder mistreatment can help compen-sate victims and change behavior of professionals. Elder abttse statutes typ-ically require only '1reasonable suspi-cion" or '1reasonable belief" that abuse has occurred, not definitive proof. A few states explicitly provide civil liability for failure to report. When statutes are silent on civil liability, a malpractice claim may allow recovery. A professional's failure to diagnose obvious mistreatment or failure to report suspected physical abuse or neglect could constitute professional negligence, especially if the mistreat-ment is repeated with resulting injury. The standard of care in such suits may be based on protocols and assessment instruments. Expert testimony may also guide the judge or jury on the appropriate standard of care. Abused or neglected individuals are often physically and emotionally powerless to defend themselves. The at-risk elder is in the class of persons legislatures intended to protect with reporting statutes. These statutes should become the standard for deter-mining legal duty in tort actions. The defendant professional may defend on grounds that he or she did not actu-ally cause the injury. The response, in cases of reasonable suspicions of abuse or indications that abuse may be pres-ent, is that the actions of the abuser were reasonably foreseeable and thus do not break the causal chain. Elder abuse is usu.ally not an isolated, atypi-cal event but often part of a pattern of repeated mistreatment that will con-tinue and become more severe unless there is appropriate medical, social or legal intervention. The landmark case imposing civil liability for later injuries suffered as a result of a professional's failure to report abuse is Landeros v. Flood, 551 P.2d 389 (Cal. 1976). In Landeros, a child's parents had beaten her repeat-edly and took her to a l1ospital for treatment. The defendant physician examined the child and discovered several fractures. The court noted that the nature of these injuries should have aroused the physician's suspi-cions, and the mother was unable to explain the injuries. The physician had not ordered additional tests, had not diagnosed "battered child syndrome" and had not reported possible abuse to state authorities. After the hospital released the child to her parents, they beat her again, causing traumatic injuries. The child's guardian ad litem brought a medical malpractice action against the physician and the hospital. The court held that the physician could be liable for the child's later injuries because he should reasonably have known that the parents would continue to abuse her. It found that the physician's inaction proximately caused the child's subsequent beating and injury, even though her parents physically caused the injury. Probate & Property • A few other courts have followed in Landeros and allowed civil causes of action for failure to report sus-pected child abuse. Other courts have : declined to recognize such an action. i Those refusing to provide relief have : used reasoning similar to Fischer v. Metcalf, 543 So. 2d 785 (Fla. Ct. App. 1989), in which the court held that because the common law recognized no cause of action for failing to report child abuse and because the Florida legislature did not specifically provide for a cause of action, none existed under Florida law. . In those jurisdictions that allow . i civil suits in the child abuse context, • the reasoning in Landeros can be applied to cases of unreported elder abuse or neglect. Much elder abuse is cyclical, making repeated mistreat-ment and increased injuries reason-ably foreseeable. The potential defendants in cases of failure to diag-nose, treat or report include licensed professionals such as physicians, nurses and social workers, who may be statutorily required to report elder abuse. Their employers hospitals, nursing homes and community agencies may also be liable under i vicarious liability theories . • .. : . . License Sanctions All members of licensed profes-sions are subject to some form of disci-plinary control Administrative actions against individuals who fail to diag-nose and treat el9.er abuse can rapidly change behavior in the profession. _ Some jurisdictions make the failure to file any report required by law grounds for revocation of professional licenses. This provision would apply to mandated reports of elder abuse or neglect. The vast majority of states allow an agency to revoke a medical license if a physician violates a law related to the practice of medicine or engages in unprofessional conduct. Althougl1 professionals may purchase malpractice insurance, suspension or ~ revocation of a license threatens their ' livelihood and standing in the profes-sion. Public licensing boards should be January /February 1998 more aggressive in ensuring that pro-fessionals are complying with the law, and lawyers can be the advocates in that process. Statutorily Imposed .... +o~ •• A few states (Michigan, Minnesota, Iowa and Arkansas) have explicitly created a civil cause of action for dam-ages against persons who intentionally or negligently fail to report elder abuse or neglect. These statutes express a public policy that professionals· who violate reporting requirements should be monetarily liable for the resulting damages. Successful lawsuits based on these statutes would encourage the reporting of elder abuse. Legal Actions .Against Perpetrators After mistreatment has occurred, lawyers may employ a variety of legal tools, both traditional and novel, to deal with the perpetrators of elder mistreatment. Tort Law In appropriate cases, civil damage suits may effectively punish and even deter elder abuse. Each of the various forms of mistreatment corre-sponds to traditional legal actions: physical abuse is battery; financial exploitation may be conversion or fraud. Injury, financial loss or death while the victim is in an insti-tution such as a nursing home could result in a lawsuit based on federal statutes, malpractice and other legal theories. Nevertheless, litigation has been infrequent for a variety of understand-able reasons. • Older persons simply do not file many lawsuits. • Mistreated elders may fear retal-iation by caregivers or facilities. join the growing number of estate planning professionals who trust The Valuations Group. to deliver high quality, cost-effective partnership valuation services to their clients. Call us today for an initial, no-obligation consultation and let us demonstrate how our expertise can be applied to address your clients' specific needs involving: • • • • • Family Limited Partnerships Estate ~ Gift Taxes Trust Administration Pension Reporting Dispute Resolution • Business Dissolutions • Divorce Settlements • . . HE Specialists In Partnership Interests GROUP 55 • Memory or communication problems sometimes make the elderly poor witnesses or advocates for themselves. • The litigation process, involving interviews in unfamiliar surroundings and testimony in court, is often uncomfortable or even traumatic. • The mistreated elderly often fear that loss of the caregiver will worsen the situation and lead to their i11stitu-tionalization. Lawyers are wary of cases with-out fee potential. Acknowledging the foregoing limitations, the civil ' For Windows 95 and 3.1 . I Plot Boundaries To Scale I Get Closure Error, Area, Etc. I Merge Adjoining Boundaries I Reveal Description Errors I Create Expert Witness Exhibits Free Demo Package Call410-757-8871 LandPlot Research, Inc. ~ Check Deeds Fast +-Experienced California Trial Lawyer hen your client needs an experienced California litigator who specializes in probate and property cases, please call me. I have more than eighteen years experience litigating probate and property matters, including will contests, title disputes, trust litigation, breach of fiduciary duty, spousal property rights, step-children's inheritance claims, contracts to make a will, and other real property and probate issues. I-Iourly or contingency. I am certified by the State Bar of California as a specialist in estate planning, probate and trust law. I pay referral fees as pe11nitted by the California Rules of Professional Conduct. CHARLES TRIA Y Phone: (51 0) 832-8700 Fax: (51 0) 836-2595 Voice Mail: (51 0) 549-7706 Calif State Bar number 78193 legal process may be important in deterring and remedying elder mis-treatment. Tort remedies can be significant. New statutes offer enhanced damage possibilities, attorney's fees and other special incentives for law suits based on elder mistreatment. Criminal Prosecution The criminal justice system pro-vides numerous possibilities for dealing with elder abuse. The state can prosecute physical abuse as assault or battery. Financial exploita-tion is typically theft, extortion or some other crime. Many states provide that crimes against the elderly carry enhanced penalties. The prevalence of elder mistreat-ment clearly warrants more vigor-ous police and prosecutorial activity. New Statutory Remedies The law in many states does not adequately address mistreatment suf-fered by the elderly. Many victims are unable to obtain a lawyer, even when the abuse is obvious and shocking. Because of the slow pace of litigation, many of the frail elderly do not sur-vive long enough for a lawsuit to come to judgment. In some states the death of the abused elder person cuts off recovery for pain, suffering or disfigurement. Problems of proof are another disincentive. In many instances of financial abuse, the mis-appropriated property may represent the elder's life savings but still amount to a relatively small sum in compari-son to attorney's fees and other litiga-tion costs. Recognizing the need for new statutory remedies, several states have become "laboratories" to test new remedies. In 1992 California enacted the Elder Abuse Civil Protection Act to help victims engage lawyers to take their cases. Cal. Welf. & Inst. Code §§ 15657-15657.3. The statute creates new remedies when a plaintiff proves by clear and convincing evidence that the defendant is culpable of recklessness, oppression, fraud or malice in the commission of abuse of the elderly. These remedies include · postmortem recovery for pain and suffering and mandatory attorney's fees and costs. The act allows fees for the services of a conservator litigating an elder's claim and continuation of a pending action by the elder's personal representative or successor. Another innovative statute is Illi-nois' recent Financial Exploitation of the Elderly and Disabled Act, which provides for criminal penalties as well as treble damages and attorney's fees for a civil judgment for conversion of a senior citizen's property by threat or deception. Ill. Ann. Stat. ch. 320, para. 720 5/16-13. These enhanced reme-dies are available regardless of the outcome of a criminal case. Statutes such as this make civil suits against the financial exploiter more feasible, and even attractive, for lawyers. All states now have domestic violence laws designed to protect victims of abuse. Typically used in spousal abuse cases, these statutes may provide a judicial "protection order" for elders threatened with harm. Although the details of these statutes vary, the use of a protection order will often spark police involve-ment and bring the case to the atten-tion of social service agencies. Conclusion Elder mistreatment affects millions of persons and families but lurks in the shadows of society. Prior legal responses to this problem have been ineffective. The legal system, both common law and statutory, should play an important role in meeting this pervasive yet hidden problem. Seymour Moskowitz is a professor of law at Valparaiso University in Valparaiso, Indiana. A list of laws protecting elders and mandating reporting of elder mistreatment may be obtained from the author at (219) 465-7858. Probate & Property 

New Remedies for Elder Abuse and Neglect

ValpoScholar

Valparaiso University
ValpoScholar
Law Faculty Publications Law Faculty Presentations and Publications
1998
New Remedies for Elder Abuse and Neglect
Seymour Moskowitz
Valparaiso University School of Law
Follow this and additional works at: http://scholar.valpo.edu/law_fac_pubs
Part of the Elder Law Commons
This Article is brought to you for free and open access by the Law Faculty Presentations and Publications at ValpoScholar. It has been accepted for
inclusion in Law Faculty Publications by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff
member at scholar@valpo.edu.
Recommended Citation
Seymour Moskowitz, New Remedies for Elder Abuse and Neglect, Prob. & Prop., Jan.-Feb. 1998, at 52.
buse and neglect of the elderly 
present a profound paradox. 
Most people envision their later years 
filled with caring and supportive 
family, financial security and use-
ful, fulfilling activity. They tend to 
remember a past when mistreatment 
of the aged was not a national issue. 
Yet a vast body of evidence indicates 
that a shocking percentage of society's 
senior citizens are mistreated abused 
by family or institutional caregivers 
or neglected in their basic needs. 
Although precise statistics are impossi-
ble to obtain, generally accepted esti-
mates place the number of abused or 
neglected elderly in the United States 
at 2 million per year. 
The mistreatment may take 
many forms: 
• Physical abuse: violent conduct 
resulting in pain or bodily injury 
(e.g., battery, improper use of 
restraints and molesting). 
• 
e 
By Seymour Moskowitz 
• Psychological abuse: behavior 
that induces significant mental 
anguish (e.g., threats, harassment), 
causing depression, nervous system 
disorders, physical illness and, in 
extreme cases, suicide. 
• Financial abuse or exploitation: 
theft or conversion of property by the 
elder's relatives, caregivers or others. 
• Neglect: failure to fulfill a care-
taking obligation necessary to main-
tain the elder's physical and mental 
well-being. Neglect may be intentional 
or negligent, resulting from the care-
taker's own · · · ty or ignorance. 
This article presents background 
information on elder abuse and 
neglect, outlines its legal context and 
discusses the critical role lawyers can 
play in dealing with this important 
issue. Although criminal law has been 
the traditional legal tool to combat 
elder abuse, this article suggests using 
civil damages as an alternate means of 
ameliorating elder mistreatment. 
Conunon law and statutory remedies, 
used by lawyers in civil practice, can 
become significant new weapons in 
responding to this ubiquitous problem . 
• 
The 'Discovery' of Elder 
Mistreatment 
In the past 30 years, the popular 
image of an idealized and peaceful 
American family has been shattered. 
In 1962, in a pioneering article, C. 
Henry Kempe and his colleagues 
called the medical community's atten-
tion to the problem of physical child 
abuse, coining the term "battered 
child syndrome." 181 J. Am. Med. 
Ass'n 17-24 (1962). Within a few 
years, volumes of research on child 
abuse surfaced. All 50 states enacted 
legislation requiring professionals.-
including doctors, nurses and social 
workers to report suspected child 
"The shocking statistics of elder mistreatm.ent should alert professionals 
to the need to assess clients for possible abuse and neglect. This requires 
sensitivity to the sometimes subtle indications of abuse as well as 
general knowledge and orientation to the problem." 
52 Probate & Property 

Health and social workers are 
often the first professionals who 
confront cases of suspected elder 
mistreatment, yet many studies indi-
cate that they rarely report it. Many 
physicians report that the fear of court 
appearances, possible anger of the 
abuser and potential loss of confiden-
tiality deter them from reporting. It is 
unlikely that social workers, nurses, 
psychologists or others with a duty 
to report comply at a rate higher 
than physicians. 
Identification of 
Elder Mistreatment 
The shocking statistics of elder 
mistreatment should alert profession-
als to the need to assess clients for 
possible abuse and neglect. This 
requires sensitivity to the sometimes 
subtle indications of abuse as well as 
general knowledge and orientation 
to the problem. Professionals in family 
service agencies, hospital emergency 
departments, primary care clinics 
and other institutions that serve the 
elderly must be able to recognize 
the signs and symptoms of various 
forms of elder mistreatment. If these 
professionals do not make adeqt1ate 
assessments, ask proper questions or 
investigate, cases will be undetected. 
This will often result in additional 
injury to the elderly patient or client 
because elder abuse, like spouse and 
child abuse, follows cyclical patterns 
and the victim is likely to experience 
repeated abuse. 
Hospitals and medical profession-
als clearly have a role in identifying 
and preventing elqer abuse, but 
lawyers also have an important role. 
Some states include lawyers withln 
the class of mandated reporters. 
Lawyers should inform older clients 
that they have fundamental rights 
to privacy, autonomy, asset control 
and freedom from abuse. Recent 
statutes and decisions have stressed 
the client's right to control medical 
and personal decision making. In 
addition, lawyers working with or 
on behalf of elderly clients should be 
cautious not to unwittingly facilitate 
54 
financial abuse by drafting instru-
ments for execution by incompetent 
individuals or by failing to advise 
older people of the consequences of 
legal action. Certain situations will 
require independent counsel for the 
elderly client. 
Potential Legal Consequences 
State laws typically make the 
failure to report suspected elder mis-
treatment to public authorities a crimi-
nal offense. Most states make these 
omissions a misdemeanor, but sanc-
tions are often minor or unspecified. 
Statutes often require a mental state of 
willfulness to prove a violation. Crim-
inal enforcement of these reporting 
laws is almost nonexistent for a wide 
variety of reasons. Few actual cases of 
prosecution against doctors, nurses or 
other professionals exist. A computer 
search of published decisions in all 
states between 1994 and 1997 yielded 
only one prosecution based on these 
statutes, and even that case did not 
directly involve a failure to report. 
Civil Liability for Failure 
to Assess, Treat and Report 
In addition to criminal enforce-
ment, lawyers can use mandatory 
reporting laws in civil actions. Tort 
suits for damages against profession-
als who fail to diagnose and report 
elder mistreatment can help compen-
sate victims and change behavior of 
professionals. Elder abttse statutes typ-
ically require only '1reasonable suspi-
cion" or '1reasonable belief" that abuse 
has occurred, not definitive proof. 
A few states explicitly provide civil 
liability for failure to report. When 
statutes are silent on civil liability, a 
malpractice claim may allow recovery. 
A professional's failure to diagnose 
obvious mistreatment or failure to 
report suspected physical abuse or 
neglect could constitute professional 
negligence, especially if the mistreat-
ment is repeated with resulting injury. 
The standard of care in such suits may 
be based on protocols and assessment 
instruments. Expert testimony may 
also guide the judge or jury on the 
appropriate standard of care. 
Abused or neglected individuals 
are often physically and emotionally 
powerless to defend themselves. The 
at-risk elder is in the class of persons 
legislatures intended to protect with 
reporting statutes. These statutes 
should become the standard for deter-
mining legal duty in tort actions. The 
defendant professional may defend 
on grounds that he or she did not actu-
ally cause the injury. The response, in 
cases of reasonable suspicions of abuse 
or indications that abuse may be pres-
ent, is that the actions of the abuser 
were reasonably foreseeable and thus 
do not break the causal chain. Elder 
abuse is usu.ally not an isolated, atypi-
cal event but often part of a pattern 
of repeated mistreatment that will con-
tinue and become more severe unless 
there is appropriate medical, social or 
legal intervention. 
The landmark case imposing civil 
liability for later injuries suffered as a 
result of a professional's failure to 
report abuse is Landeros v. Flood, 551 
P.2d 389 (Cal. 1976). In Landeros, a 
child's parents had beaten her repeat-
edly and took her to a l1ospital for 
treatment. The defendant physician 
examined the child and discovered 
several fractures. The court noted that 
the nature of these injuries should 
have aroused the physician's suspi-
cions, and the mother was unable to 
explain the injuries. The physician had 
not ordered additional tests, had not 
diagnosed "battered child syndrome" 
and had not reported possible abuse 
to state authorities. After the hospital 
released the child to her parents, they 
beat her again, causing traumatic 
injuries. The child's guardian ad litem 
brought a medical malpractice action 
against the physician and the hospital. 
The court held that the physician 
could be liable for the child's later 
injuries because he should reasonably 
have known that the parents would 
continue to abuse her. It found that 
the physician's inaction proximately 
caused the child's subsequent beating 
and injury, even though her parents 
physically caused the injury. 
Probate & Property 
• 
A few other courts have followed 
in Landeros and allowed civil causes 
of action for failure to report sus-
pected child abuse. Other courts have 
: declined to recognize such an action. 
i Those refusing to provide relief have 
: used reasoning similar to Fischer v. 
Metcalf, 543 So. 2d 785 (Fla. Ct. App. 
1989), in which the court held that 
because the common law recognized 
no cause of action for failing to report 
child abuse and because the Florida 
legislature did not specifically provide 
for a cause of action, none existed 
under Florida law. 
. In those jurisdictions that allow 
. 
i civil suits in the child abuse context, 
• 
the reasoning in Landeros can be 
applied to cases of unreported elder 
abuse or neglect. Much elder abuse 
is cyclical, making repeated mistreat-
ment and increased injuries reason-
ably foreseeable. The potential 
defendants in cases of failure to diag-
nose, treat or report include licensed 
professionals such as physicians, 
nurses and social workers, who may 
be statutorily required to report elder 
abuse. Their employers hospitals, 
nursing homes and community 
agencies may also be liable under 
i vicarious liability theories . 
• .
. 
: 
. 
. 
License Sanctions 
All members of licensed profes-
sions are subject to some form of disci-
plinary control Administrative actions 
against individuals who fail to diag-
nose and treat el9.er abuse can rapidly 
change behavior in the profession. 
_ Some jurisdictions make the failure to 
file any report required by law 
grounds for revocation of professional 
licenses. This provision would apply to 
mandated reports of elder abuse or 
neglect. The vast majority of states 
allow an agency to revoke a medical 
license if a physician violates a law 
related to the practice of medicine or 
engages in unprofessional conduct. 
Althougl1 professionals may purchase 
malpractice insurance, suspension or 
~ revocation of a license threatens their 
' livelihood and standing in the profes-
sion. Public licensing boards should be 
January /February 1998 
more aggressive in ensuring that pro-
fessionals are complying with the law, 
and lawyers can be the advocates in 
that process. 
Statutorily Imposed 
.... +o~ •• 
A few states (Michigan, Minnesota, 
Iowa and Arkansas) have explicitly 
created a civil cause of action for dam-
ages against persons who intentionally 
or negligently fail to report elder abuse 
or neglect. These statutes express a 
public policy that professionals· who 
violate reporting requirements should 
be monetarily liable for the resulting 
damages. Successful lawsuits based on 
these statutes would encourage the 
reporting of elder abuse. 
Legal Actions .Against 
Perpetrators 
After mistreatment has occurred, 
lawyers may employ a variety of legal 
tools, both traditional and novel, to 
deal with the perpetrators of elder 
mistreatment. 
Tort Law 
In appropriate cases, civil damage 
suits may effectively punish and 
even deter elder abuse. Each of the 
various forms of mistreatment corre-
sponds to traditional legal actions: 
physical abuse is battery; financial 
exploitation may be conversion 
or fraud. Injury, financial loss or 
death while the victim is in an insti-
tution such as a nursing home could 
result in a lawsuit based on federal 
statutes, malpractice and other 
legal theories. 
Nevertheless, litigation has been 
infrequent for a variety of understand-
able reasons. 
• Older persons simply do not file 
many lawsuits. 
• Mistreated elders may fear retal-
iation by caregivers or facilities. 
join the growing number of estate planning professionals who trust 
The Valuations Group. to deliver high quality, cost-effective 
partnership valuation services to their clients. 
Call us today for an initial, no-obligation consultation and let us 
demonstrate how our expertise can be applied to address your 
clients' specific needs involving: 
• 
• 
• 
• 
• 
Family Limited Partnerships 
Estate ~ Gift Taxes 
Trust Administration 
Pension Reporting 
Dispute Resolution 
• Business Dissolutions 
• Divorce Settlements 
• 
. . 
HE Specialists In Partnership Interests 
GROUP 
55 
• Memory or communication 
problems sometimes make the 
elderly poor witnesses or advocates 
for themselves. 
• The litigation process, involving 
interviews in unfamiliar surroundings 
and testimony in court, is often 
uncomfortable or even traumatic. 
• The mistreated elderly often fear 
that loss of the caregiver will worsen 
the situation and lead to their i11stitu-
tionalization. 
Lawyers are wary of cases with-
out fee potential. Acknowledging 
the foregoing limitations, the civil 
' 
For Windows 95 and 3.1 
. 
I Plot Boundaries To Scale 
I Get Closure Error, Area, Etc. 
I Merge Adjoining Boundaries 
I Reveal Description Errors 
I Create Expert Witness Exhibits 
Free Demo Package 
Call410-757-8871 
LandPlot Research, Inc. 
~ Check Deeds Fast +-
Experienced California 
Trial Lawyer 
hen your client needs an 
experienced California 
litigator who specializes 
in probate and property cases, please 
call me. I have more than eighteen 
years experience litigating probate 
and property matters, including will 
contests, title disputes, trust litigation, 
breach of fiduciary duty, spousal 
property rights, step-children's 
inheritance claims, contracts to make 
a will, and other real property and 
probate issues. I-Iourly or contingency. 
I am certified by the State Bar of 
California as a specialist in estate 
planning, probate and trust law. I pay 
referral fees as pe11nitted by the 
California Rules of Professional 
Conduct. 
CHARLES TRIA Y 
Phone: (51 0) 832-8700 
Fax: (51 0) 836-2595 
Voice Mail: (51 0) 549-7706 
Calif State Bar number 78193 
legal process may be important in 
deterring and remedying elder mis-
treatment. Tort remedies can be 
significant. New statutes offer 
enhanced damage possibilities, 
attorney's fees and other special 
incentives for law suits based on 
elder mistreatment. 
Criminal Prosecution 
The criminal justice system pro-
vides numerous possibilities for 
dealing with elder abuse. The state 
can prosecute physical abuse as 
assault or battery. Financial exploita-
tion is typically theft, extortion or 
some other crime. Many states 
provide that crimes against the 
elderly carry enhanced penalties. 
The prevalence of elder mistreat-
ment clearly warrants more vigor-
ous police and prosecutorial activity. 
New Statutory Remedies 
The law in many states does not 
adequately address mistreatment suf-
fered by the elderly. Many victims are 
unable to obtain a lawyer, even when 
the abuse is obvious and shocking. 
Because of the slow pace of litigation, 
many of the frail elderly do not sur-
vive long enough for a lawsuit to 
come to judgment. In some states 
the death of the abused elder person 
cuts off recovery for pain, suffering 
or disfigurement. Problems of proof 
are another disincentive. In many 
instances of financial abuse, the mis-
appropriated property may represent 
the elder's life savings but still amount 
to a relatively small sum in compari-
son to attorney's fees and other litiga-
tion costs. 
Recognizing the need for new 
statutory remedies, several states have 
become "laboratories" to test new 
remedies. In 1992 California enacted 
the Elder Abuse Civil Protection Act 
to help victims engage lawyers to take 
their cases. Cal. Welf. & Inst. Code 
§§ 15657-15657.3. The statute creates 
new remedies when a plaintiff proves 
by clear and convincing evidence 
that the defendant is culpable of 
recklessness, oppression, fraud or 
malice in the commission of abuse of 
the elderly. These remedies include 
· postmortem recovery for pain and 
suffering and mandatory attorney's 
fees and costs. The act allows fees for 
the services of a conservator litigating 
an elder's claim and continuation of a 
pending action by the elder's personal 
representative or successor. 
Another innovative statute is Illi-
nois' recent Financial Exploitation of 
the Elderly and Disabled Act, which 
provides for criminal penalties as well 
as treble damages and attorney's fees 
for a civil judgment for conversion of 
a senior citizen's property by threat or 
deception. Ill. Ann. Stat. ch. 320, para. 
720 5/16-13. These enhanced reme-
dies are available regardless of the 
outcome of a criminal case. Statutes 
such as this make civil suits against 
the financial exploiter more feasible, 
and even attractive, for lawyers. 
All states now have domestic 
violence laws designed to protect 
victims of abuse. Typically used in 
spousal abuse cases, these statutes 
may provide a judicial "protection 
order" for elders threatened with 
harm. Although the details of these 
statutes vary, the use of a protection 
order will often spark police involve-
ment and bring the case to the atten-
tion of social service agencies. 
Conclusion 
Elder mistreatment affects millions 
of persons and families but lurks in 
the shadows of society. Prior legal 
responses to this problem have been 
ineffective. The legal system, both 
common law and statutory, should 
play an important role in meeting this 
pervasive yet hidden problem. 
Seymour Moskowitz is a professor 
of law at Valparaiso University in 
Valparaiso, Indiana. A list of laws 
protecting elders and mandating 
reporting of elder mistreatment 
may be obtained from the author at 
(219) 465-7858. 
Probate & Property 


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New Remedies for Elder Abuse and Neglect

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