Legal Definitions of Elder Abuse and Neglect

7.0 THE UNITED STATES

In the United States, legal definitions of elder abuse and neglect exist at both the national and state level. This study surveys seven American states: Florida, Arizona, Illinois, California, Massachusetts, New Mexico and New York. These states were selected because they are known to have been particularly responsive in terms of enacting legislation to address elder abuse and neglect.

7.1 Legislation

Elder abuse and neglect legislation—in the three areas of civil, criminal and adult protection—has been created in each of the states at different rates and in different ways, with all states proceeding with some kind of legislated response to the problem. As a result, each state has a slightly different set of definitions for the term "elder abuse" and other related concepts. At the federal level, the U.S. has the Older Americans Act.239 Each of the seven jurisdictions we researched has some form of elder abuse crime, except for New Mexico, which has adult protection legislation in place to address elder abuse and neglect.

7.1.1 The federal framework: The Older Americans Act

The U.S. Code contains the Older Americans Act, an act that recognizes the value of elderly Americans and reinforces various objectives in relation to protecting their rights. Although the Code does not list elder abuse as a crime, section 3001 sets out the congressional objectives of Chapter 35: Programs for Older Americans and provides definitions of relevance to this project. The objectives are based on the entitlement of older adults to the traditional American concept of individual dignity. Congress notes that it is the duty and responsibility of both federal and state governments to ensure that the objectives are met and to assist in securing "equal opportunity to the full and free enjoyment" of the objectives.

Ten objectives are listed, but the last line of subsection 10 is most relevant for our purposes:

"…protection against abuse, neglect, and exploitation."

Section 3002 provides definitions of several terms that are linked to the definition of elder abuse and neglect.

Section 13925 is unique in that it provides a separate definition for "elder abuse" in the context of violence against older women.240 In this subchapter (Violence Against Women), an elder is a person over 50 years of age. The definition of abuse mirrors the definition in section 3002.

7.1.2 State legislative responses to elder abuse

Of the seven states researched, Arizona, California, Florida, Illinois, Massachusetts and New York all have criminal legislation in place under which elder abuse may be specifically prosecuted, in lieu of crimes of general application such as assault, fraud, or criminal negligence. With the exception of Arizona, all of these jurisdictions explicitly use the term "elder abuse" in defining the crime. Each of the seven US jurisdictions has adult protective services legislation (APS) in place. As is the case in other countries, mistreatment of older adults is sometimes dealt with under the concept of vulnerable adult abuse rather than elder-specific legislation. In terms of the seven state responses we reviewed, New Mexico is unique in that it deals with elder abuse exclusively in an adult protection context and has not criminalized elder abuse or abuse of vulnerable adults (as in Arizona), as a specific offence.

7.1.2.1 What is an "elder"?

What constitutes an elder varies across the U.S. jurisdictions. An elder in California and Florida is any person 65 or older. In Illinois, New York and Massachusetts an elder is 60 years or older, in keeping with the Older Americans Act definition. Arizona does not have specific elder abuse legislation; it uses the term "vulnerable adult" in its APS and criminal legislation. An elder may be a vulnerable adult if his or her "advanced age" constitutes "an impairment" or he or she suffers from some other physical or mental incapacity.241 Thus there is no minimum age for elder abuse; rather, a victim must be at least over 18. A claim for vulnerability due to "advanced age" implies a typical senior (60 to 65 years or older); however, no case law was found interpreting this incapacity due to advanced age.

7.1.2.2 The criminalization of elder abuse: Complex, lengthy, fragmented definitions

The structure of the American definitions is very different from anything appearing in the other jurisdictions reviewed as part of this study. A complete picture of what constitutes elder abuse and neglect for each state requires a cross referencing of the criminal offences and the definitions contained therein with the various definitions appearing elsewhere in the state's legislation, such as in public welfare and adult protection schemes. In this sense the definitions are complex and heavily codified in a fragmentary manner. In addition, each state has taken its own approach to defining the crime of elder abuse.

The Illinois Criminal Code contains a section on elder or disabled adult abuse and neglect,242 which includes the crimes of "criminal abuse or neglect of an elderly or disabled person" and "financial exploitation of an elderly person". Abuse and neglect are effectively defined together in three areas of the statute:

  1. the definitions section of the Act describes a number of key terms including "abuse", "abuser", "caregiver", "eligible adult" and "neglect";
  2. a number of relevant definitions exist in the sections setting out the offenses ("abandonment" and "elderly person"); and
  3. a final component of the definition is the description of the offense.

In a sense, the Illinois definition of elder abuse in the criminal context emerges out of the interplay between these elements. For example, consider the following abuse and neglect provision:

5/12-21. Criminal abuse or neglect of an elderly person or person with a disability.

The abuse and neglect provision also provides a lengthy definition for "caregiver"; the term extends to any person who, by contractual, voluntary, familial, or fiduciary relationship, stands in a position of responsibility toward the elderly individual.243

Massachusetts has created the offense "assault or battery of an elderly person".244 In addition to defining terms such as "assault", "physical harm", and "mistreatment", this offense lists the term "abuse" in the definitions section as:

…physical contact which either harms or creates a substantial likelihood of harm. 245

Florida has created a number of elder-specific crimes, including abuse and exploitation. Both definitions place a great deal of emphasis on intent:

  1. "Abuse of an elderly person or disabled adult" means:
    1. Intentional infliction of physical or psychological injury upon an elderly person or disabled adult;
    2. An intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or
    3. Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.246
  1. "Exploitation of an elderly person or disabled adult" means:
    1. Knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly person's or disabled adult's funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:
      1. Stands in a position of trust and confidence with the elderly person or disabled adult; or
      2. Has a business relationship with the elderly person or disabled adult; or
    2. Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly person's or disabled adult's funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent.247

California groups elder and disabled adult abuse together under one penal provision.248 The crime has an important knowledge component—an offender will know or reasonably should know that the victim is an elderly person. Certain factors will affect the severity of punishment: if the victim is over 70 years of age; if the offender is a caregiver; if the crime is committed under circumstances likely to produce great bodily harm or death.249 Physical harm, mental harm, endangerment, false imprisonment, misuse of identity, fraud, embezzlement, and theft as committed against an elder are all included under this provision.

7.1.2.3 Elder abuse and vulnerability

New York has adopted an approach to crimes against elders similar in structure to California's, although it does not use the language of elder abuse explicitly. For example, the Penal Code, under Offences Relating to Vulnerable Elderly Persons, states:

A person is guilty of endangering the welfare of a vulnerable elderly person in the second degree when, being a caregiver for a vulnerable elderly person:

  1. With intent to cause physical injury to such person, he or she causes such injury to such person; or
  2. He or she recklessly causes physical injury to such person; or
  3. With criminal negligence, he or she causes physical injury to such person by means of a deadly weapon or a dangerous instrument; or
  4. He or she subjects such person to sexual contact without the latter's consent. […] 250

The Code further defines the terms "physical injury", "caregiver", "sexual contact", and "consent". A definition emerges out of the relationship between these various terms and the crime description. Of note is the definition of "vulnerable elderly person":

… a person sixty years of age or older who is suffering from a disease or infirmity associated with advanced age and manifested by demonstrable physical, mental or emotional dysfunction to the extent that the person is incapable of adequately providing for his or her own health or personal care.251

Arizona's criminal legislation speaks of "child or vulnerable adult abuse", and defines abuse as:

  1. Intentional infliction of physical harm.
  2. Injury caused by criminally negligent acts or omissions.
  3. Unlawful imprisonment, as described in section 13-1303.
  4. Sexual abuse or sexual assault.252

As noted previously, an offender may be prosecuted under this provision if the victim was vulnerable as a result of the advanced age impairment. This is similar to the definition of "vulnerable elderly person" under New York penal law.

One of the unique aspects of the U.S. criminal decisions is their structure. Emerging as they do of the interplay between the meaning of different statutorily defined terms as well as the description of offences, these definitions are complex. As a function being located within a criminal framework, within which intent becomes key, the language of knowledge and intention is common.

7.1.2.4 Adult protection legislation

Adult protective services and associated legislation exist throughout the United States. These definitions apply to adults in general, although some regions use the language of "vulnerable adult". These definitions tend to be much simpler than their criminal counterparts, but contain the same core principles, although they do go beyond intent to also include negligence. Definitions of exploitation also figure prominently, likely in part due to the reference to exploitation in the federal Older Americans Act. New Mexico, which has no criminal provision for elder abuse, defines abuse in the APS context as follows:

"Abuse" means:

  1. knowingly, intentionally or negligently and without justifiable cause inflicting physical pain, injury or mental anguish;
  2. the intentional deprivation by a caretaker or other person of services necessary to maintain the mental and physical health of an adult; or
  3. sexual abuse, including criminal sexual contact, incest and criminal sexual penetration.253

Most definitions of elder abuse in the APS context include deprivation of necessities as a component of abuse or neglect, but fail to spell out what the necessities entail. California's APS legislation is unique in that it provides an open-ended definition for necessary goods or services:

"Goods and services necessary to avoid physical harm or mental suffering" include, but are not limited to, all of the following:

  1. The provision of medical care for physical and mental health needs.
  2. Assistance in personal hygiene.
  3. Adequate clothing.
  4. Adequately heated and ventilated shelter.
  5. Protection from health and safety hazards.
  6. Protection from malnutrition, under those circumstances where the results include, but are not limited to, malnutrition and deprivation of necessities or physical punishment.
  7. Transportation and assistance necessary to secure any of the needs set forth in subdivisions (a) to (f), inclusive.254

Like the criminal definitions of elder abuse, the adult protection definitions coming out of the U.S. emphasize knowledge and intention.

7.2 Policy

7.2.1 National

7.2.1.1 Emphasis on intention to inflict harm

The Administration on Aging (AoA) is a department of the U.S. federal government established to manage the affairs of older adults. The AoA website provides elder abuse resources and links to external sources. In addition, the following definitions are offered as a starting point for recognizing and understanding elder abuse. Like the statutory definitions referenced above, the definitions emphasize intent, although like the APS, they also include negligence. Abandonment is included as a category of abuse separate from neglect:

In general, elder abuse is a term referring to any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to a vulnerable adult.255

Broadly defined, abuse may be:

Physical Abuse
Inflicting, or threatening to inflict, physical pain or injury on a vulnerable elder, or depriving them of a basic need.
Emotional 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.
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.256

By contrast, the National Institute of Justice defines elder abuse and mistreatment in more general terms as either:

  1. intentional actions that cause harm or create a serious risk of harm to a vulnerable elder by a caregiver or other person who stands in a trust relationship to the elder, or
  2. failure by a caregiver to satisfy the elder's basic needs or to protect the elder from harm.257
7.2.1.2 No emphasis on intention

The National Center for Elder Abuse (NCEA), established in 1988 by the US Administration on Aging as a resource center concerned with abuse, neglect, and exploitation of older Americans, adopts an approach that at first appears closer to that of the AoA, but incorporates examples that are much more specific.258 The NCEA definition is fragmented into definitions of types and categories. It recognizes three general categories of elder abuse: domestic, institutional, and self-neglect or self-abuse. The Center also provides definitions of the major types of abuse that are identical to those used in the National Elder Abuse Incidence Study discussed below, which NCEA and the National Adult Protective Services Association (NAPSA) participated in: physical, sexual, emotional or psychological, neglect, abandonment, financial or material exploitation, and self-neglect. The descriptions of the types of abuse are very detailed. The absence of intention is noteworthy for an American definition. Here is an example:

Physical abuse is the use of physical force that may result in bodily injury, physical pain, or impairment. Physical abuse may include but is not limited to such acts of violence as:

  • striking (with or without an object)
  • hitting
  • beating
  • pushing
  • shoving
  • shaking
  • slapping
  • kicking
  • pinching
  • burning
  • unwarranted administration of drugs and physical restraints
  • force-feeding
  • physical punishment of any kind

The National Committee for the Prevention of Elder Abuse (NCPEA) is a non-profit organization devoted to preventing elder abuse and neglect; it is one of the three partners constituting the National Center on Elder Abuse (NCEA).259 NCPEA was established in 1988 "to achieve a clearer understanding of abuse and provide direction and leadership to prevent it".260 NCEA uses the following definition of elder abuse, which is different from the NCEA definition, followed by brief descriptions of specific examples:

Elder abuse is any form of mistreatment that results in harm or loss to an older person.

The NCPEA definition resembles a number of the human rights focused definitions that appear on the international front. The brief statement leaves out intention, stating its definition more broadly so that it would potentially encompass both intentional and unintentional acts. In the American context, where intent is often a key element of a definition of elder abuse and neglect, this approach is somewhat unusual.

7.2.2 The state level

From a comparative perspective, the same themes appear at the state level in the seven states reviewed, namely, the question of whether elder abuse is by definition limited to intentional or unintentional abuse or mistreatment and the inclusion of varied and unique categories of abuse.

7.2.2.1 Types of abuse

Rather than provide an overarching definition of elder abuse such as that provided by the NCPEA, state policy definitions focus on describing types of abuse, perhaps because abuse itself is often thereby exhaustively codified. The types described are rather consistent. They include physical abuse, emotional abuse, sexual abuse, neglect and self-neglect. Almost every region defines exploitation, an approach uncommon to other jurisdictions. Other less common descriptions that appear in state material are discussed below.

California's Attorney General hosts a SafeState website dedicated to crime and violence prevention in California.261 Its list of types of abuse includes:

Abduction means the removal from this state and/or the restraint from returning to this state of any elder or dependent adult who does not have the capacity to consent to the removal from or restraint from returning to this state.

Abandonment means the desertion or willful forsaking of an elder or a dependent adult by anyone who has care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.

Isolation means prevention from receiving phone calls or mail, false imprisonment or physical restraint from meeting with visitors.262

This appears to be the only reference to abduction in elder abuse material. The Illinois Department on Aging's Elder Abuse and Neglect Program also defines:

Confinement—restraining or isolating an older person for other than medical reasons.263

The above types of abuse referenced in U.S. policy seldom appear in non-American jurisdictions.

7.2.2.2 The role of intention

Intention is a key element of American definitions of elder abuse, likely stemming from the criminal law approach to elder abuse and neglect taken in the U.S. Florida provides an example of the use of intention in abuse definitions. Unlike the fragmented statutory definitions reviewed early on in this chapter, the policy approach is much more accessible by virtue of being integrated. Florida Department of Elder Affairs—Elder Services Directory hosts an elder resources website which contains a glossary of relevant terms, including those pertaining to elder abuse:

Abuse:
The willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical harm, pain, or mental anguish; or deprivation by a person including a caregiver of goods or services that are necessary to avoid physical harm, mental anguish or mental illness.
Exploitation:
A person who stands in a position of trust and confidence with a disabled adult or an elderly person and knowingly by deception or intimidation, obtains or uses or endeavors to obtain or use a disabled adult's or an elderly person's funds, assets or property with the intent to temporarily or permanently deprive a disabled adult or an elder person of the use, benefit or possession of the funds, assets or property for the benefit of someone other than the disabled adult or elderly person.
Frail Elder:
A person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age of organic brain damage, or other physical, mental or emotional dysfunctioning to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired.
Neglect:
The failure or omission on the part of a caregiver of a disabled adult or elderly person to provide the care, supervision, and services necessary to maintain the physical and mental health of the disabled adult or elderly person, including, but not limited to food, clothing, medicine, shelter, supervision and medical services that a prudent person would consider essential for the well-being of a disabled adult or elderly person.
Older Individual:
An individual who is 60 years of age or older264

The focus on caregivers is also noteworthy. It captures the breach of trust element emphasized in Australia.

7.3 Conclusion

The most unique aspect of the American approach to elder abuse is the criminalization of the mistreatment of older adults through older adult specific crimes. This approach has resulted in codified definitions of elder abuse. However, it has also meant for complex definitions that only become evident once one reviews all the relevant statutory provisions, including definitions of key terms and descriptions of the elder abuse crimes. Court decisions are not discussed in the U.S. section: the meaning of elder abuse is already so exhaustively set out in legislation that jurisprudence in this area fails to capture any significant components to the legal definition of elder abuse and neglect in the U.S.

The other notable feature of the U.S. approach is an emphasis on intention in the legal definition. This is almost certainly of function of criminalization of elder abuse, for this sets the concept within a criminal analytical framework, in which the presence of intent becomes key to establishing guilt.

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