Abuse, Neglect, and Exploitation

[Note: This material was prepared by an Arizona attorney relying primarily on Arizona law. While much of the material will also apply to other states' laws, you should consult a lawyer in your locality for more specific information.]

Arizona law makes it illegal to abuse, neglect or exploit a "vulnerable" adult. In addition, the law imposes an affirmative duty on some individuals to report suspected abuse, neglect and exploitation to the authorities.

"Abuse" is defined as physical or sexual abuse or involuntary confinement. "Neglect" occurs when an individual with a duty to care for another fails to discharge that duty. "Exploitation" refers to one individual taking financial advantage of another. While all of these activities may be illegal regardless of the age, ability or condition of the victim, the law makes special provisions for those who injure the confused, disabled or otherwise vulnerable adult.

Curiously, the law against abuse, neglect and exploitation did not originally seek to punish the abuser. In its original form the law merely required those who have a reasonable belief that abuse, neglect or exploitation has occurred to report that belief to the proper authorities. Those provisions of the law have been strengthened as well, and now many people who have responsibility for the welfare of vulnerable adults have the added duty to report suspected incidents of abuse, neglect or exploitation. The list of individuals required to report includes caretakers, social workers, physicians, nurses, aides, tax preparers, accountants and lawyers, and is broadly described to include a myriad of others as well.

When suspected abuse or neglect has occurred, reports must be made to the appropriate police department or sheriff's office or, if the person making the report prefers, to the Adult Protective Service. Financial exploitation must be reported to either of those agencies or the appropriate county's Public Fiduciary. In any case, the report must be made immediately, and a more detailed written report must be filed within two days. Failure to make the report is a misdemeanor, punishable by up to $1,000 in fines, sixty days in jail and a year's probation.

Once abuse, neglect or exploitation has been reported to the authorities, an investigation will be undertaken. Adult Protective Services has a particularly powerful mandate to investigate such complaints, and has been given extraordinary authority to subpoena bank and medical records, to look at the perpetrators financial affairs, and to gain access to victims even if they express a desire not to be contacted. The name of the referring party, the information gathered and the results of APS evaluations are ordinarily kept private, though they may be revealed in court proceedings undertaken to protect the victim from further abuse or to regain lost assets.

Despite the extraordinary power of APS and the strength of Arizona's statutes, abuse, neglect and exploitation remain widespread; the incidence of problems seems, indeed, to be growing. There are a number of reasons for this phenomenon:

Police and prosecutors do not place a high priority on cases of elder abuse. Because of the typically complicated relationships and transactions, they require an unusual amount of effort on the part of authorities. Adult Protective Services is woefully under funded. Once involved, they are often extremely zealous. Unfortunately, they have insufficient resources to resolve many cases.

Perpetrators are often judgment-proof. The class of individuals who take advantage of the frail elderly tend to have no other sources of income and/or have expensive habits to support. If a drug-abusing neighbor takes control of a vulnerable adult's financial matters, it is unlikely that there will ever be any financial recovery once the exploitation is uncovered. Consequently, it is difficult to get private attorneys involved, and the public prosecutors become frustrated at the lack of benefit to victims.

Elderly victims often make poor witnesses. Prosecutors are concerned that they may not remember specific details, or that they not survive to the date of trial. Many remain susceptible to manipulation by their abusers even after discovery.

More and more often, authorities are seeing repeat abusers. Once the unscrupulous exploiter sees how little resource the system has to stop abuses, he or she is encouraged to "befriend" another vulnerable adult. Repeaters are even more clever and dangerous, since they have seen the types of behaviors that result in referrals and the limitations to the powers of government to prevent or remedy abuses.

Abuse, neglect and exploitation are growing problems in our society. With the projected aging of the whole population, the problems should be expected to worsen. While there are frustrations and difficulties with the available remedies, there are some powerful weapons available. In any event, many individuals who witness abuse, neglect or exploitation or who suspect that it is occurring will have an affirmative legal obligation to report what they know to the authorities.
©2014 Fleming & Curti, PLC