New law makes failing to report elder abuse a crime - AB40 effective January, 2013

Today, people are living longer and often requiring more care than can be managed by themselves or their family alone. The latest statistics indicate that 40 million people aged 65 and over accounted for 13% of the total population in the US. By the year 2030, that number is expected to almost double – to 72 million - representing nearly 20% of the population. 

According to the 2010 US Census, there were 54,000 adults over the age of 65 living in Santa Barbara County.

With an increase in the elder population comes the inevitable increase in elder abuse- related incidences as elders have special circumstances such as dependency, functional disability, isolation, family discord, poor social networks and an increasing susceptibility to undue influence. 

Abuse doesn’t occur only the isolated or elder living alone. It can happen to anybody, whether they’re living alone in their own home, with family members, or in a local care facility. Some elders have families that can and do intervene, while others are left to rely upon the kindness of neighbors, friends or caregivers. Often, it’s the person the elder trusts most, who mistreats him or her. Research suggests that elders who have been abused tend to die earlier than those who are not abused, even in the absence of chronic conditions or life threatening diseases. The eldest of our seniors, 80 years and older, are abused and neglected at 2-3 times the proportion of all other senior citizens. 

A newly passed law makes failing to report abuse a crime in the State of California. AB 40, effective January 2013, resolves a previous conflict between state and federal laws in which elder abuse in nursing homes as reported to the Office of the Long-Term Care Ombudsman was prevented from being reported to local law enforcement due to strict federal rules of confidentiality. Although the federal rules were intended to protect nursing home residents from retaliation by management, the effect was to stifle reporting. 

The mandated reporter has a legal responsibility to share his or her suspicion of physical abuse, neglect or financial abuse of residents in long-term care centers. Nursing home employees are required by law to report elder abuse to the Long-Term Care Ombudsman. AB 40 requires that once the Ombudsman receives a report that physical abuse has occurred or is even suspected, the Ombudsman must report it within two hours if serious bodily harm has resulted and within twenty-four hours if the injury is minor. The bill, introduced in 2011 by State Assembly member Mariko Yamada was approved by Governor Jerry Brown in September 2012. 

What makes this bill work? The failure to report abuse is a misdemeanor, with a maximum penalty of six months in jail and/or a $1,000 fine. This bill was passed in response to reports by the State Senate and Disability Rights Coalition, pointing to lax reporting of the abuse of elderly and dependent patients. In the past, Federal law required an ombudsmen to obtain the victim’s permission before reporting suspected abuse to the authorities. This new law takes the power of reporting away from the victim, and places it in the hands those who are responsible for their care. Reports state that as many as 75% of abused patients either refused to report abuse, or lacked the ability to consent to the reporting, due to dementia or other serious illness. 

90% of elder abuse and neglect incidents are by known perpetrators, usually family members, 2/3rds are adult children or spouses. The vast majority of individuals working with elder and dependent adults are excellent caregivers. Unfortunately, sometimes stress can lead to unintended actions by caregivers – actions that may result in abuse, neglect or mistreatment. 

Additionally, there are a number of internet, telephone and mail fraud scams aimed at taking advantage of the elderly. Sadly, experts estimate that for every case of elder abuse and neglect that is reported, there may be as many as five cases that go unreported. 

“Baby boomers” are the most well-known generation in American history. In 2011, the “baby boomers” began turning 65 and retiring. Roughly 10,000 Baby Boomers will turn 65 today and about 10,000 more will cross that threshold every day for the next 19 years. 

Due to the rapidly growing number of elderly persons, there is also a growing need for more control and scrutiny of those being supervised by the Court system. The Court and the Department of Social Services are underfunded, and resources are stretched to the max. 

Despite their best efforts, Court staff and social workers are unprepared and unable to manage the overwhelming needs facing our elderly population now, and in the future. For this reason, it is incumbent upon everyone who works with the elderly, to be sensitive and vigilant to matters of elder abuse. 

The good news is that awareness surrounding this growing epidemic is also gaining speed. This June 15 celebrated Elder Abuse Awareness Day. A day dedicated to honor and remember victims of elder abuse. It also serves to empower elders to exercise their rights and advocate on their own behalf. Seniors are educated and encouraged to document their wishes so they can honored at the most critical time. 

As an attorney, the easiest way to ensure that your client’s affairs will be handled according to his or her wishes, is to draft appropriate estate planning documents and keep them updated. In the event that you find your client or loved one is in a situation where this hasn’t been previously arranged, or where the named representative is no longer able or willing to serve, it is wise to consider engaging the services of a professional fiduciary. Professional fiduciaries can serve in either an informal capacity or by Court appointment in a conservatorship or Trust matter. 

Professional fiduciaries have become an increasingly popular choice when either an elder, or the Court believes that a skilled, neutral third party is preferable to a relative. This may be due to family discord, dysfunctional family dynamics, or when there is no relative or other appropriate person who is either willing or able to step forward. 

If you suspect that a loved one or elderly client is being mistreated, or is susceptible to imminent abuse, please contact local Adult Protective Services first at 805.681.4550. There are numerous local resources available to assist elders with care management and asset protection when they are no longer able to make these decisions for themselves. 

According to the World Health Organization, “Elder abuse is a violation of human rights and a significant cause of illness, injury, loss of productivity and despair.” By working together, we can play a critical role in ensuring a safe and dignified life for California’s most vulnerable populations, those of the elderly and dependent adults.