Elder abuse in New Jersey

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Elder Abuse in New Jersey By Fred Nieman, NJ Elder Abuse Lawyer

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Elder abuse in New Jersey

  1. 1. ELDER ABUSE ANDELDER ABUSE AND FINANCIAL EXPLOITATIONFINANCIAL EXPLOITATION IN NEW JERSEYIN NEW JERSEY Fredrick P. Niemann, Esq. Hanlon Niemann, PC 3499 Route 9 North, Suite 1F Freehold, NJ 07728 Phone: (855) 376-5291 fniemann@hnlawfirm.com www.njelderlawcenter.com www.elderabuseinnj.com 1
  2. 2. Fredrick P. Niemann offers his clients nearly 30 years of accomplished practice in the law. He is a member of the National Academy of Elder Law Attorneys, the Guardianship and conservatorship Committee of NAELA, Monmouth County Probate and Estate Committee and the Monmouth County Chancery Practice Committee. Mr. Niemann is one of the few attorneys in New Jersey, accredited by the Veteran’s Administration, to apply for Aid and Attendance benefits for Veterans and/or their spouses.
  3. 3. LEGAL WITLEGAL WIT  What’s the difference between a good lawyer and a great lawyer? A good lawyer knows the law. A great lawyer knows the judge.  A new client had just come in to see a famous lawyer. “Can you tell me how much you charge?”, said the client. “Of course”, the lawyer replied, “I charge $200 to answer three questions!” “Well that’s a bit steep, isn’t it?” “Yes it is”, said the lawyer, “And what’s your third question?”  What’s wrong with lawyer jokes? Lawyers don’t think they’re funny, and nobody else thinks they’re jokes.
  4. 4. THE FACE OF ELDER ABUSETHE FACE OF ELDER ABUSE
  5. 5. ELDER ABUSEELDER ABUSE: GENERALLY: GENERALLY Definition  The willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish 5
  6. 6. PROFILE: MEET THE VICTIM AND THE ABUSERPROFILE: MEET THE VICTIM AND THE ABUSER OF ELDER ABUSEOF ELDER ABUSE The Victim  The victim is usually a female, age 75 or older with limited means, alone and vulnerable.  She or he is generally isolated from the world around them.   The abuse most frequently occurs when elders are living with family.  Elders may deny abuse because they are fearful of abandonment.
  7. 7. The abuser may be the victim’s middle-aged adult child who is also the victim’s caregiver.  The abuser may even be the victim’s spouse or grandchild.  An individual without close family may be exploited by a “friend”.  If the individual resides in an institution, the abuser may be an employee of the facility or another resident of the facility may be the abuser.
  8. 8.  One common scenario of an abusive relationship finds the victim frail or disabled and the perpetrator suffering from psychological problems or the effects of alcohol/drug abuse. 
  9. 9. GENERAL CATEGORIES OF ACTIONABLEGENERAL CATEGORIES OF ACTIONABLE ELDER ABUSEELDER ABUSE There are four basic categories of elder abuse: • Domestic elder abuse • Institutional elder abuse • Self –neglect or self-abuse • Financial Exploitation (cont’d)
  10. 10. General Description Domestic elder abuse refers to the abuse of an elder by someone who has a special relationship with the elder ( a spouse, a sibling, a child, a friend, a caregiver or fiduciary relation, i.e. Power of Attorney or Guardian), that occurs in the elder’s home, or in the home of a caregiver. (cont’d)
  11. 11. DOMESTIC ELDER ABUSE INCLUDESDOMESTIC ELDER ABUSE INCLUDES PHYSICAL ABUSEPHYSICAL ABUSE 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, shackling, slapping, kicking, pinching, spitting at, and burning.  In addition, inappropriate use of chemical (drug) and physical restraints, force- feeding, and physical punishment of any kind also are examples of physical abuse.  (cont’d)
  12. 12. Physical abuse includes forcing treatment upon an elder who has the capacity to make voluntary healthcare decisions, after the elder has made a voluntary and informed choice regarding such treatment, and providing treatment that is not medically indicated. (cont’d)
  13. 13. CORPORAL PUNISHMENT AS A FORMCORPORAL PUNISHMENT AS A FORM OF DOMESTIC ELDER ABUSEOF DOMESTIC ELDER ABUSE  Physical punishment:  the striking of a person’s body as punishment 13
  14. 14. VERBAL, EMOTIONAL ORVERBAL, EMOTIONAL OR PSYCHOLOGICAL ABUSE AS A FORM OFPSYCHOLOGICAL ABUSE AS A FORM OF DOMESTIC ELDER ABUSEDOMESTIC ELDER ABUSE Verbal, emotional or psychological abuse is the infliction of anguish, pain, or distress through verbal or nonverbal acts.  It includes, but is not limited to, verbal assaults, insults, threats, intimidation, humiliation, and harassment.  In addition, treating an elder like an infant; isolating an elder from his/her family, friends, or regular activities; giving the elder the “silent treatment;” and enforced social isolation are examples of emotional/psychological abuse. (cont’d)
  15. 15. GROSS NEGLECT AS A FORM OFGROSS NEGLECT AS A FORM OF DOMESTIC ELDER ABUSEDOMESTIC ELDER ABUSE Gross Neglect is a form of abuse, and is the term that describes the willful deprivation of services which are necessary to maintain a person’s known obligations or duties.  Gross neglect may also include the failure of a person who has a fiduciary responsibility to provide care for an elder (e.g., pay for necessary care).  Gross neglect typically means a refusal or failure to provide an elderly person with life necessities such as food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety, and other essentials. (cont’d)
  16. 16. ABANDONMENT AS ELDERABANDONMENT AS ELDER ABUSEABUSE General Description  Abandonment is the desertion of an elderly person by an individual who has assumed responsibility for providing care for an elder, or by a person with physical custody of an elder (ie.,“Granny dumping”)  Signs and symptoms of abandonment include but are not limited to: - the desertion of an elder at a hospital, a nursing facility, or other similar institution with no intention of returning - the desertion of an elder at a shopping center or other public location - an elder's own report of being abandoned. 16
  17. 17. General Description Institutional abuse generally refers to abuse that occurs in residential facilities for older persons (e.g., nursing homes, assisted living residences, residential healthcare facilities, or rooming board and care facilities).  (cont’d)
  18. 18. INSTITUTIONAL ELDER ABUSEINSTITUTIONAL ELDER ABUSE CAN INVOLVE INVOLUNTARYCAN INVOLVE INVOLUNTARY SECLUSIONSECLUSION  Involuntary seclusion is defined as a separation of a resident from other residents, or from his or her room (with or without roommates), against the resident’s will, or the will of the resident’s legal representative.  Emergency or short term monitored separation will not be considered involuntary seclusion, and may be permitted, if used for a limited period of time, as therapeutic interventions to reduce agitation until staff can develop a plan of care to meet resident’s needs 18
  19. 19. SELF-NEGLECT AS A FORM OF ELDERSELF-NEGLECT AS A FORM OF ELDER ABUSEABUSE General Description Self –neglect is characterized as the behavior of an elderly person that threatens his/her own health or safety.  Self-neglect is generally found as a refusal or failure to carry out one or more activities of daily living (commonly referred to as ADL’s), bathing or showering, dressing, getting in or out of bed or a chair, using the toilet, eating, taking medication (when indicated), and observing safety precautions. (cont’d)
  20. 20. FINANCIAL EXPLOITATION AS A FORMFINANCIAL EXPLOITATION AS A FORM OFOF ELDER ABUSEELDER ABUSE  Examples include but are not limited to cashing an elderly person's checks without authorization/permission  forging an older person's signature; misusing or stealing an older person's money or possessions  coercing or deceiving an older person into signing any document (e.g., contracts or will)  the improper use of guardianship, or power of attorney 20
  21. 21.  The existence of financial exploitation “should be considered if the older person is suffering from substandard care in the home despite adequate financial resources, if the person seems confused about or unaware of his or her financial situation; or if the person has suddenly transferred assets to a family member.”
  22. 22. OTHER SIGNS OF FINANCIALOTHER SIGNS OF FINANCIAL EXPLOITATIONEXPLOITATION  The elderly client has recently signed papers without realizing their purpose:  Large withdrawals are made from the elderly client’s accounts, or checks drawn on the elderly person’s account are returned for insufficient funds; (cont’d)
  23. 23. ELDER FINANCIAL EXPLOITATIONELDER FINANCIAL EXPLOITATION  The elderly person relinquishes ownership of her home; or  The caretaker is evasive when asked about financial plans, or the caretaker asks only questions about finances, but no personal questions about the elderly client.
  24. 24.  Usually by the time financial exploitation is discovered, the assets are depleted.  The exploiting person argues that the elderly victim made a gift of the assets, making it difficult to prove the exploitation.  Often, the exploitation is accomplished through the use of a (joint checking account or durable power of attorney) which cloaks the transaction with at least the appearance of legitimacy.  (cont’d)
  25. 25. ELDER FINANCIAL EXPLOITATIONELDER FINANCIAL EXPLOITATION Common schemes include:  The perpetrator promises to take care of the victim for life in return for transfer of title to the victim’s home; soon after the deed is transferred, the victim is removed from the home. (cont’d)
  26. 26. ELDER FINANCIAL EXPLOITATIONELDER FINANCIAL EXPLOITATION  The perpetrator has the victim sign a durable power of attorney or change the bank account into a joint account so the perpetrator can pay the victim’s bills; instead the perpetrator pays her own personal bills and empties the victim’s accounts.  These accounts usually represent a lifetime of savings that cannot be recouped. (cont’d)
  27. 27. ELDER FINANCIAL EXPLOITATIONELDER FINANCIAL EXPLOITATION  The perpetrator gets the confused and incapacitated victim to sign documents, including a power of attorney (POA) or new will, under threat or fraud; in some cases, the perpetrator forges the client’s signature on documents.
  28. 28.  A guardianship proceeding often is considered a “last ditch measure” to protect an alleged incapacitated person who is in need of assistance in making financial, legal, medical and other decisions.  It can and often is used as a sword or a shield to gain an advantage over other interested parties as well as the alleged incapacitated person.  What are the risks and benefits to the person bringing the guardianship action?
  29. 29. ELDER ABUSE LAWS IN NEW JERSEYELDER ABUSE LAWS IN NEW JERSEY THE PREVENTION OF DOMESTIC VIOLENCE ACT (ELDER ABUSE) AND HOW IT APPLIES TO THE ELDERLY IN NEW JERSEY  The Prevention of Domestic Violence Act of 1991 is a series of laws found in the New Jersey Code of Criminal Justice. It prohibits the treatment of elderly persons in a number of specified ways.  A violation is a criminal act. (cont’d)
  30. 30. TYPES OF ABUSE COVERED UNDER THETYPES OF ABUSE COVERED UNDER THE NJ DOMESTIC VIOLENCE ACTNJ DOMESTIC VIOLENCE ACT  The Act covers physical, sexual or emotional abuse that puts a victim in physical fear.
  31. 31. PROCEDURE TO INITIATE A COMPLAINT FORPROCEDURE TO INITIATE A COMPLAINT FOR DOMESTIC VIOLENCEDOMESTIC VIOLENCE  A victim may file a complaint alleging an act of domestic violence with the Family Part of the Chancery Division of the Superior Court of New Jersey.  The filing a complaint does not prevent the filing of a criminal complaint for the same alleged act of abuse.  (cont’d)
  32. 32. PREVENTION OF DOMESTIC VIOLENCE ACTPREVENTION OF DOMESTIC VIOLENCE ACT  It is important to note that NJ law has provisions for a representative of a victim to seek protection for another person who is being abused, for example, a distant child for a parent or grandparent in an abusive environment in New Jersey.
  33. 33.  A victim of domestic violence is defined as a person over the age of 18, or an emancipated minor, who is abused by a spouse, a person with whom the victim has a child in common, any other former or present household member, or a person with whom the victim has had a dating relationship.  The definition is quite broad, and covers many elderly persons previously excluded from the law’s protection, such as those abused by a live-in caretaker, non blood relatives (such as sons-in-law), etc.
  34. 34.  The Act covers physical, sexual or emotional abuse that puts a victim in physical fear.
  35. 35.  A victim may file a complaint alleging an act of domestic violence with the Family Part of the Chancery Division of the Superior Court of New Jersey.  The filing a complaint does not prevent the filing of a criminal complaint for the same alleged act of abuse.  (cont’d)
  36. 36. PREVENTION OF NJ DOMESTIC VIOLENCE LAWPREVENTION OF NJ DOMESTIC VIOLENCE LAW  It is important to note that NJ law has provisions for a representative of a victim to seek protection for another person who is being abused, for example, a distant child for a parent or grandparent in an abusive environment in New Jersey.
  37. 37.  Adult Protective Services (APS) are services to protect the safety and well being of the elderly and other adults with disabilities living in the community, who are in danger of being mistreated or neglected; and/or are unable to take care of themselves or protect themselves from harm; and/or have no one to assist them.
  38. 38. THE NEW JERSEY ADULT PROTECTIVE ACTTHE NEW JERSEY ADULT PROTECTIVE ACT  The New Jersey Adult Protective Services Act (APS) became law on February 7, 1994.  If an APS worker determines that there is reasonable cause to believe that a person has or is likely to become a vulnerable adult and/or  his/her legal guardian consents, the APS worker can provide or arrange for  protective services , including making referrals to State, County and local agencies, hospitals or organizations.
  39. 39.  A “vulnerable adult” means a person 18 years of age or older who resides in a community setting and who, because of a physical or mental illness, disability or deficiency, lacks sufficient understanding or capacity to make, communicate, or carry out decisions concerning his/her well-being and is the subject of abuse, neglect or exploitation.   (cont’d)
  40. 40. ADULT PROTECTIVE SERVICES ACTADULT PROTECTIVE SERVICES ACT  A person shall not be deemed to be the subject of abuse, neglect or exploitation or in need of protective services for the sole reason that the person is being furnished nonmedical remedial treatment by spiritual means through prayer alone or in accordance with a recognized religious method of healing in lieu of medical treatment, and in accordance with the tenets and practices of the person’s established religious tradition.
  41. 41. REPORTING THE ABUSE OF ELDERLYREPORTING THE ABUSE OF ELDERLY PERSONSPERSONS IN NEW JERSEY UNDER THE APSAIN NEW JERSEY UNDER THE APSA  Reporting suspected abuse, neglect or exploitation of a vulnerable adult living in the community to APS is voluntary in New Jersey. (cont’d)
  42. 42. NJ APSANJ APSA  A person who makes a report to APS, provides information regarding abuse of a vulnerable adult, or testifies at a proceeding, is granted immunity, unless he or she is acting in bad faith or with malice.
  43. 43. CONTACT INFORMATION FOR ADULTCONTACT INFORMATION FOR ADULT PROTECTIVE SERVICESPROTECTIVE SERVICES  Here is the contact information for Adult Protective Services in Monmouth County, Ocean County, Middlesex County and Mercer County:  http://www.state.nj.us/health/senior/aps.shtml
  44. 44. Family and Children Services of Monmouth County 191 Bath Avenue Long Branch, NJ 07740 732-531-9191, After hours: 732-222-9111, Toll free 1-800 495-0055
  45. 45. Middlesex County Board of Social Services P.O. Box 509 New Brunswick, NJ 08903 732-745-3635, After hours: call main number
  46. 46. Mercer County Board of Social Services 200 Wolverton Street, Trenton, NJ 08650 609-989-4346, After hours: call main number
  47. 47. Ocean County Board of Social Services P.O. Box 547 1027 Hooper Avenue Toms River, NJ 08754-0547 732-349-1500, 732-286-5333, 732-286-5929 After hours: 732-240-6100
  48. 48. ELDER ABUSE THAT OCCURS IN NJ INSTITUTIONS LIKE NURSING HOMES, ASSISTED LIVING GROUP, RESIDENCE HOMES, ETC:   OFFICE OF THE NEW JERSEY OMBUDSMAN FOR INSTITUTIONAL ELDERLY
  49. 49. OLDER AMERICANS ACTOLDER AMERICANS ACT  Approximately 120,000 elders reside in a variety of long term care facilities in New Jersey. In most cases, they are in facilities because their care needs are so great that they can no longer remain at home and/or in a community-based setting.  Such facilities include nursing homes, assisted living, resident group homes, etc. Many elderly persons suffer from Alzheimer’s disease or some other form of dementia. 
  50. 50. OLDER AMERICANS ACT AND THE OFFICE OF THEOLDER AMERICANS ACT AND THE OFFICE OF THE OMBUDSMAN FOR THE INSTITUTIONAL ELDERLYOMBUDSMAN FOR THE INSTITUTIONAL ELDERLY  The Institutional Ombudsman responsibility under the Older Americans Act includes:  Identification, investigation and resolution of complaints made by or on behalf of residents living in long term care facilities. (cont’d)
  51. 51.  Federal law also requires that New Jersey protect the confidentiality of complaints and records, provide adequate legal counsel to the Ombudsman program, protect representatives of the Ombudsman from liability for the good faith performance of their duties, prepare an annual report, and provided training to Ombudsman representatives.
  52. 52. NJ OFFICE OF THE OMBUDSMANNJ OFFICE OF THE OMBUDSMAN  The Office of the Ombudsman for the Institutionalized Elderly in New Jersey  In 1977, the New Jersey legislature passed a law creating the Office of the Ombudsman for the Institutionalized Elderly.
  53. 53. NJ OFFICE OF THE OMBUDSMANNJ OFFICE OF THE OMBUDSMAN  The basic objective of the Office is to promote, advocate and insure, the adequacy of the care received, and the quality of life experienced, by elderly patients, residents and clients of long term care facilities within New Jersey.
  54. 54. NJ OFFICE OF THE OMBUDSMANNJ OFFICE OF THE OMBUDSMAN  In the institutional setting, unlike in the community setting, professionals are mandated by law to report abuse and exploitation of elders.  The Mandatory Adult Abuse Reporting Act was adopted in 1983, and requires that any caretaker, social worker, physician, registered or licensed practical nurse or other (cont’d)
  55. 55. NJ OFFICE OF THE OMBUDSMANNJ OFFICE OF THE OMBUDSMAN professional, who, as a result of information obtained in the course of his/her employment, has reasonable cause to suspect or believe that an institutionalized elderly person is being or has been abused or exploited, shall report such information obtained in a timely manner to the Ombudsman or the Ombudsman’s designee.
  56. 56.  Has the person received any significant lifetime gifts from the alleged incapacitated person?  Is the beneficiary of the gift a fiduciary for the alleged incapacitated person, i.e., trustee, power of attorney, guardian, agent?  Did the Power of Attorney, Guardian acting as attorney-in-fact, make any gifts?  If so, was he or she specifically authorized by the written instrument to do so?
  57. 57.  File a complaint in the Superior Court of New Jersey and seek an injunction.  Request the appointment of a temporary guardian.  Request the appointment of a geriatric care manager.
  58. 58.  Request an accounting.  New Jersey court rules provide that a court “may, upon application of any heir or other next friend of the principal, require an attorney-in-fact acting within the powers delegated by the power-of-attorney, or is acting solely for the benefit of the principal to file an accounting.”
  59. 59.  Contact the County Prosecutor’s office.  Call Adult Protective Services if the circumstances warrant the call.
  60. 60. QUESTIONS???QUESTIONS??? Fredrick P. Niemann, Esq. Hanlon Niemann, PC 3499 Route 9 North, Suite 1F Freehold, NJ 07728 Phone: (855) 376-5291 fniemann@hnlawfirm.com www.njelderlawcenter.com www.elderabuseinnj.com 60

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