Legal Ramifications and the Elderly: A Presentation from the Ashmore Law Firm, P.C.

1,827 views

Published on

Lori Ashmore Peters of The Ashmore Law Firm, P.C. presented Saturday, February 2, 2013 at the 23rd Annual Myron F. Weiner Geratric Psychiatry Update in Dallas, Texas.

Published in: Economy & Finance
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
1,827
On SlideShare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
1
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Legal Ramifications and the Elderly: A Presentation from the Ashmore Law Firm, P.C.

  1. 1. Legal Ramifications and the Elderly Presented By: www.ashmorelaw.com 3636 Maple Avenue Dallas,Texas 75219 214.559.7202 (phone) 214.520.1550 (fax) 1
  2. 2. Interesting statistics: ◦ One out of every ten older Americans, about 5 million individuals, are believed to experience abuse each year in the United States, according to the National Institute of Justice. ◦ But as few as one in 23 cases is reported. ◦ Elder abuse is preventable, but it requires research, education, advocacy and public awareness. ◦ In 2009 APS completed 72,265 investigations of abuse, neglect, or exploitation involving adults living at home. ◦ More than 50,936 were confirmed. 2
  3. 3. Exploitation and the ElderlyWhat is Elder Exploitation? Texas Human Resources Code defines exploitation as: "The illegal or improper act or process of a caretaker, family member, or other individual who has an ongoing relationship with the elderly or disabled person using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain without the informed consent of the elderly or disabled person." 3
  4. 4. Following are important definitions as it relates to the elderly. Human Resources Code Sec. 48.002. Definitions (a) Except as otherwise provided under Section 48.251, in this chapter: (1) "Elderly person" means a person 65 years of age or older. (2) "Abuse" means: (A) the negligent or wilful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to an elderly or disabled person by the persons caretaker, family member, or other individual who has an ongoing relationship with the person; or (B) sexual abuse of an elderly or disabled person, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Section 21.08, Penal Code (indecent exposure) or Chapter 22, Penal Code (assaultive offenses), committed by the persons caretaker, family member, or other individual who has an ongoing relationship with the person. 4
  5. 5.  (3) "Exploitation" means the illegal or improper act or process of a caretaker, family member, or other individual who has an ongoing relationship with an elderly or disabled person that involves using, or attempting to use, the resources of the elderly or disabled person, including the persons social security number or other identifying information, for monetary or personal benefit, profit, or gain without the informed consent of the elderly or disabled person. (4) "Neglect" means the failure to provide for ones self the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caretaker to provide such goods or services. (5) "Protective services" means the services furnished by the department or by a protective services agency to an elderly or disabled person who has been determined to be in a state of abuse, neglect, or exploitation or to a relative or caretaker of an elderly or disabled person if the department determines the services are necessary to prevent the elderly or disabled person from returning to a state of abuse, neglect, or exploitation. These services may include social casework, case management, and arranging for psychiatric and health evaluation, home care, day care, social services, health care, respite services, and other services consistent with this chapter. The term does not include the services of the department or another protective services agency in conducting an investigation regarding alleged abuse, neglect, or exploitation of an elderly or disabled person. (6) "Protective services agency" means a public or private agency, corporation, board, or organization that provides protective services to elderly or disabled persons in the state of abuse, neglect, or exploitation. 5
  6. 6.  (7) "Department" means the Department of Protective and Regulatory Services. (8) "Disabled person" means a person with a mental, physical, or developmental disability that substantially impairs the persons ability to provide adequately for the persons care or protection and who is: (A) 18 years of age or older; or (B) under 18 years of age and who has had the disabilities of minority removed. (9) "Legal holiday" means a state holiday listed in Subchapter B, Chapter 662, Government Code, or an officially declared county holiday. (10) "Volunteer" means a person who: (A) performs services for or on behalf of the department under the supervision of a department employee; and (B) does not receive compensation that exceeds the authorized expenses the person incurs in performing those services. (b) The definitions of "abuse," "neglect," and "exploitation" adopted by the department as prescribed by Section 48.251 apply to an investigation of abuse, neglect, or exploitation in a facility subject to Subchapters F and H. (c) Except as provided by Subsection (b), the executive commissioner by rule may adopt definitions of "abuse," "neglect," and "exploitation," as an alternative to the definitions of those terms under Subsection (a), for purposes of conducting an investigation under this chapter or Chapter 142, Health and Safety Code. 6
  7. 7. There are many different types of exploitation: Financial Exploitation Hybrid Exploitation • Varies on the type of exploitation involved • Mistreatment • Neglect/Self Neglect • Abuse  Physical  Emotional  Psychological 7
  8. 8. 72 year old man lives in a very nice retirementcommunity. He lost his wife 5 years ago. He investedwell during his lifetime and accumulated a nice nest eggfor himself. He continues to dabble with investmentsfrom time to time. He travels quite a bit and stays veryactive. He gets a call from a friend who he met duringone of his travels a few months ago. They had a lot incommon and became fast friends. His friend talks to himabout a great overseas investment deal, but he needs tomake a decision within 24 hours. It’s an offer he can’trefuse! He’s guaranteed a minimum of a 10% return. Mansays he’s in… 8
  9. 9. Exploitation can happen to ANYONE!!! 9
  10. 10. Where to Report Elder Exploitation: Texas Department of Aging and Disability Services (DADS) Texas Department of State Health Services (DSHS) Texas Council on Family Violence Texas Department of Family and Protective Services (DFPS) APS Facility Investigations 1-800-252-5400 - Call the Abuse Hotline toll-free 24 hours a day, 7 days a week, nationwide. TxAbuseHotline.orgExternal Link - Report with the secure website and get a response within 24 hours. ◦ cannot accept email reports of suspected abuse or neglect. 10
  11. 11. Human Resources Code Sec. 48.051. REPORT. (a) Except as prescribed by Subsection (b), a person having cause to believe that an elderly or disabled person is in the state of abuse, neglect, or exploitation, including a disabled person receiving services as described by Section 48.252, shall report the information required by Subsection (d) immediately to the department. (b) If a person has cause to believe that an elderly or disabled person, other than a disabled person receiving services as described by Section 48.252, has been abused, neglected, or exploited in a facility operated, licensed, certified, or registered by a state agency, the person shall report the information to the state agency that operates, licenses, certifies, or registers the facility for investigation by that agency. (c) The duty imposed by Subsections (a) and (b) applies without exception to a person whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the persons employment or whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, and mental health professional. (d) The report may be made orally or in writing. It shall include: (1) the name, age, and address of the elderly or disabled person; (2) the name and address of any person responsible for the elderly or disabled persons care; (3) the nature and extent of the elderly or disabled persons condition; (4) the basis of the reporters knowledge; and (5) any other relevant information. (e) If a person who makes a report under this section chooses to give self-identifying information, the caseworker who investigates the report shall contact the person if necessary to obtain any additional information required to assist the person who is the subject of the report. 11
  12. 12. Legal Ramifications for Failure to Report Elder ExploitationTexas Human Resources Code Sec. 48.052. Penalty (a) A person commits an offense if the person has cause to believe that an elderly or disabled person has been abused, neglected, or exploited or is in the state of abuse, neglect, or exploitation and knowingly fails to report in accordance with this chapter. An offense under this subsection is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the disabled person was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the disabled person had suffered serious bodily injury as a result of the abuse, neglect, or exploitation. (b) This section does not apply if the alleged abuse, neglect, or exploitation occurred in a facility licensed under Chapter 242, Health and Safety Code. Failure to report abuse, neglect, or exploitation that occurs in a facility licensed under that chapter is governed by that chapter. 12
  13. 13. Texas Penal CodeSec. 22.04. INJURY TO A CHILD, ELDERLY INDIVIDUAL, OR DISABLED INDIVIDUAL. (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:(1) serious bodily injury;(2) serious mental deficiency, impairment, or injury; or(3) bodily injury.(a-1) A person commits an offense if the person is an owner, operator, or employee of a group home, nursing facility, assisted living facility, intermediate care facility for persons with mental retardation, or other institutional care facility and the person intentionally, knowingly, recklessly, or with criminal negligence by omission causes to a child, elderly individual, or disabled individual who is a resident of that group home or facility:(1) serious bodily injury;(2) serious mental deficiency, impairment, or injury; or(3) bodily injury.(b) An omission that causes a condition described by Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3) is conduct constituting an offense under this section if:(1) the actor has a legal or statutory duty to act; or(2) the actor has assumed care, custody, or control of a child, elderly individual, or disabled individual.(c) In this section:(1) "Child" means a person 14 years of age or younger.(2) "Elderly individual" means a person 65 years of age or older.(3) "Disabled individual" means a person older than 14 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter, or medical care for himself.(4) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 620, Sec. 11, eff. September 1, 2011. 13
  14. 14.  (d) For purposes of an omission that causes a condition described by Subsection (a)(1), (2), or (3), the actor has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child, elderly individual, or disabled individual. For purposes of an omission that causes a condition described by Subsection (a-1)(1), (2), or (3), the actor acting during the actors capacity as owner, operator, or employee of a group home or facility described by Subsection (a-1) is considered to have accepted responsibility for protection, food, shelter, and medical care for the child, elderly individual, or disabled individual who is a resident of the group home or facility. (e) An offense under Subsection (a)(1) or (2) or (a-1)(1) or (2) is a felony of the first degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly, the offense is a felony of the second degree. (f) An offense under Subsection (a)(3) or (a-1)(3) is a felony of the third degree when the conduct is committed intentionally or knowingly, except that an offense under Subsection (a)(3) is a felony of the second degree when the conduct is committed intentionally or knowingly and the victim is a disabled individual residing in a center, as defined by Section 555.001, Health and Safety Code, or in a facility licensed under Chapter 252, Health and Safety Code, and the actor is an employee of the center or facility whose employment involved providing direct care for the victim. When the conduct is engaged in recklessly, the offense is a state jail felony. (g) An offense under Subsection (a) is a state jail felony when the person acts with criminal negligence. An offense under Subsection (a-1) is a state jail felony when the person, with criminal negligence and by omission, causes a condition described by Subsection (a-1)(1), (2), or (3). 14
  15. 15. Son contacts our office. He lives in Florida. He isbecoming more and more concerned about his 75 yearold mother who lives in Dallas. His mother is physicallydisabled and has recently been diagnosed withAlzheimer’s. She has had the same caretaker living withher for a few years. Mother and Son speak on the phonea few times a week. He visits mom 2-3 times a year.Lately, he noticed when he would call for mom, she wouldbe “unavailable.” On the rare occasion he would speak toher, she wasn’t the same. When he came in for a visit, thecaretaker never left her side and more times than notwould speak for mom. Son came across a bank statementand was concerned at the low balance in her account. Hedoesn’t know what do to… Is this elder abuse? 15
  16. 16. Legal Options to protect an Incapacitated Adult Guardianship Temporary Restraining Order (TRO) 683 Letter 16
  17. 17. What is a Guardianship?Texas Probate Code § 602, Policy, Purpose of Guardianship. A court may appoint a guardian with full authority over an incapacitated person or may grant a guardian limited authority over an incapacitated person as indicated by the incapacitated persons actual mental or physical limitations and only as necessary to promote and protect the well-being of the person. If the person is not a minor, the court may not use age as the sole factor in determining whether to appoint a guardian for the person. In creating a guardianship that gives a guardian limited power or authority over an incapacitated person, the court shall design the guardianship to encourage the development or maintenance of maximum self-reliance and independence in the incapacitated person. 17
  18. 18. Legal definition of incapacity is “an adult individual who, because of a physical or mentalcondition, is substantially unable to provide food, clothing,or shelter for himself or herself, to care for theindividuals own physical health, or to manage theindividuals own financial affairs.”Does Mom meet this definition?If she does, Son can initiate the guardianship process. 18
  19. 19. Temporary Restraining Order (TRO)• Can offer same results as with temporary guardianship• Texas Rules of Civil Procedure 680, et seq.• Grants immediate ex parte relief• Lasts 14 days, unless extended 19
  20. 20. Application should demonstrate the following:o a specific cause of action against respondent;o specific relief sought;o probable right of recovery;o likelihood of imminent harm causing irreparable injury if the relief is not granted;o willingness to post bond;o verification 20
  21. 21. Sally contacts our office. She lives in Dallas a couple ofmiles away from her father. She sees him daily and helpswith his daily needs and finances. Her sister has come intown and is staying with Dad to give Sally a break. Theonly significant money Dad has is his Social Security check.He get approximately $2,000/month. Sally, while takingtime for herself, gets a call from Dad’s neighbor. Sister ispacking up dad to take him back to Lubbock, Texas. Thiswas never discussed with Sally…Is there a problem? 21
  22. 22. Here is the rest of the story… Sister has a deadbeat husband who doesn’t work. Sister lost her job six months ago. They have no money.Now is there a problem?What are the options for Sally? 22
  23. 23. Son contacts our office because of his growing concern about mom BUT…Son does not want to upset mom. She treats caretaker as her own daughter. Son doesn’t want to ruin his relationship with mom. He knows if he fills out the paperwork for a guardianship mom would not speak to him again… What to do??? 23
  24. 24. 683 Letter…What is it?Texas Probate Code Sec. 683. Courts Initiation of Guardianship Proceedings. (a) If a court has probable cause to believe that a person domiciled or found in the county in which the court is located is an incapacitated person, and the person does not have a guardian in this state, the court shall appoint a guardian ad litem or court investigator to investigate the persons conditions and circumstances to determine whether the person is an incapacitated person and whether a guardianship is necessary. If after the investigation the guardian ad litem or court investigator believes that the person is an incapacitated person and that a guardianship is necessary, the guardian ad litem or court investigator shall file an application for the appointment of a guardian of the person or estate, or both, for the person. (b) To establish probable cause under this section, the court may require: (1) an information letter about the person believed to be incapacitated that is submitted by an interested person and satisfies the requirements of Section 683A of this code; or (2) a written letter or certificate from a physician who has examined the person believed to be incapacitated that satisfies the requirements of Section 687(a) of this code, except that the letter must be dated not earlier than the 120th day before the date of the appointment of a guardian ad litem or court investigator under Subsection (a) of this section and be based on an examination the physician performed not earlier than the 120th day before that date. (c) A court that appoints a guardian ad litem under Subsection (a) of this section may authorize compensation of the guardian ad litem from available funds of the proposed wards estate, regardless of whether a guardianship is created for the proposed ward. If after examining the wards or proposed wards assets the court determines the ward or proposed ward is unable to pay for services provided by the guardian ad litem, the court may authorize compensation from the county treasury. 24
  25. 25. Texas Probate Code Sec. 683A. Information Letter.An information letter under Section 683(b)(1) of this code about a person believed to be incapacitated may:(1) include the name, address, telephone number, county of residence, and date of birth of the person;(2) state whether the residence of the person is a private residence, health care facility, or other type of residence;(3) describe the relationship between the interested person and the person;(4) contain the names and telephone numbers of any known friends and relatives of the person;(5) state whether a guardian of the person or estate of the person has been appointed in this state;(6) state whether the person has executed a power of attorney and, if so, the designees name, address, and telephone number;(7) describe any property of the person, including the estimated value of that property;(8) list any amount and source of monthly income of the person; and(9) describe the nature and degree of the persons alleged incapacity and include a statement of whether the person is in imminent danger of serious impairment to the persons physical health, safety, or estate. 25
  26. 26. Legal Ramifications as Guardian?As Guardian of the Person and/or Estate you have certain legal obligations.HOWEVER…You only have those legal obligations the Court bestows on you.As a Guardian you CANNOT act on behalf of the Ward without obtaining the authority to do so by the Court. 26
  27. 27. You are responsible for:• paying the Ward’s bills,• making decisions about and maintaining the Ward’s assets as a prudent investor would,• ensuring the Ward’s medical needs are met,• ensuring the Ward’s living needs are met,• filing the proper documents in Courts as are required.• and the list goes on… 27
  28. 28. You CANNOT: Prevent a Ward from making bad decisions and choices. You are not responsible for the bad decisions and choices made by the Ward or for illegal acts they may commit. You are not responsible for personally funding the Ward’s living expenses. You are not responsible for the Ward’s past debt. You cannot force the Ward to take medication. You do not personally supervise the Ward around the clock. You cannot place a Ward in a mental health facility. 28
  29. 29. Now that we have discussed the legal options toprotect an incapacitated adult, it is important tounderstand these options should be the LAST RESORT.There are alternatives… 29
  30. 30. Alternative #1Consent To Medical Treatment (Ch. 313, Texas Health and Safety Code)**Only for Patients In a Nursing Home or Hospital**This consent is not related to withholding or withdrawing life- sustaining procedures and would be used for an adult patient: • who has no formal guardian or health care agent under a medical power of attorney; and • whose care decisions are NOT related to the withholding or withdrawing of life-sustaining procedures.A surrogate-decision maker may not consent to: • voluntary inpatient mental health services; • electro-convulsive treatment; or • the appointment of another surrogate decision-maker. 30
  31. 31. If an adult patient in a nursing home or hospital is comatose,incapacitated, or otherwise mentally or physically incapable ofcommunication, an adult surrogate from the following list, in order ofpriority, who has decision-making capacity, is available after areasonably diligent inquiry, and is willing to consent to medicaltreatment on behalf of the patient, may consent to medical treatmenton behalf of the patient:• 1) the patients spouse;• 2) an adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act on behalf of the patient as the sole decision-maker;• 3) a majority of the patients reasonably available adult children;• 4) the patients parents;• 5) the individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patients nearest living relative, or a member of the clergy. 31
  32. 32. Alternative #2Notice To Person Making a Declaration For Mental Health TreatmentChapter 137, Title 6, Civil Practice and Remedies Code This document allows you to make decisions in advance about mental health treatment and specifically three types of mental health treatment: psychoactive medication, convulsive therapy, and emergency mental health treatment. The instructions that you include in this declaration will be followed only if a court believes that you are incapacitated to make treatment decisions. Otherwise, you will be considered able to give or withhold consent for the treatments 32
  33. 33. Alternative #3Directive to Physicians (Living Will) This document declares your wishes with respect to life-prolonging treatments and proceduresAlternative #4Medical Power of Attorney Names individuals to make your medical and health care decisions for you in the event of incapacity or disability. 33
  34. 34. Alternative #5Out-Of-Hospital DNR This form instructs emergency medical personnel and other health care professionals to forgo resuscitation attempts and to permit the patient to have a natural death with peace and dignity. This order does NOT affect the provision of other emergency care including comfort care.Alternative #6Statutory Durable Power of Attorney Names individuals to make your business and financial decisions for you in the event of incapacity or disability. 34
  35. 35. Alternative #7Declaration of Guardian Names individuals who will be the guardian of your person and your estate in the event of incapacity.Alternative #8HIPAA Authorization Permits you to name individuals to have access to your medical information and records. 35
  36. 36. References and Links:http://www.dads.state.tx.us/news_info/publications/handbooks/advancedirectives.htmlhttp://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.313.htmhttp://www.dads.state.tx.us/news_info/publications/brochures/pub395-guardianship.pdfhttp://www.dfps.state.tx.us/Contact_Us/report_abuse.asphttp://www.statutes.legis.state.tx.us/Docs/HR/htm/HR.48.htmhttp://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.22.htmhttp://www.statutes.legis.state.tx.us/Docs/PB/htm/PB.XIII.htmhttp://www.dfps.state.tx.us/everyonesbusiness/https://www.oag.state.tx.us/elder/abuse.shtmlhttps://www.oag.state.tx.us/elder/tellers.shtmlhttp://fcs.tamu.edu/families/aging/elder_care/indicators_of_elder_abuse_and_neglect.php 36
  37. 37. Presentation written and presented by: Lori Ashmore Peters The Ashmore Law Firm 3636 Maple Avenue Dallas, Texas 75219 214-559-7202 www.ashmorelaw.com 37
  38. 38. KEEP UP WITH US ON THE WEB! FACEBOOK facebook.com/AshmoreLaw TWITTER Twitter.com/AshmoreLaw YOUTUBE YouTube.com/AshmoreLaw Use your smart phone ESTATE PLANNING BLOG QR app to scan the QR code above. FAMILY LAW BLOG PERSONAL INJURY BLOG www.ashmorelaw.com 38

×