World
Elder Abuse
Awareness
Day 2012
Seniors
And
Law
Enforcement
Together
LA ELDER ABUSE LAWS;
REPORTING
REQUIREMENTS;
CRAWFORD
June 11, 2012
Scott Gardner
Harold Bartholomew, Jr.
Assistant District Attorneys
Office of Walter P. Reed
22nd Judicial District
(985) 809-8383
World Elder Abuse
Awareness Day 2012
June 11, 2012
The opinions expressed herein are
not necessarily the opinions of the
District Attorney’s Office. Each and
every case is evaluated in light of
the facts particular to that case.
What We’ll Cover Today
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Can I look up the law?
Elder Abuse Introduction
Mandatory Reporting
Current Law
Mandatory Reporters
Healthcare
Banks
Attorneys
Definitions
An introduction to “Crawford”
Questions
Can I Look Up The Law?
• Yes!
• The Louisiana Legislature web site has a
searchable database of current law at:
http://www.legis.state.la.us/
• Google Scholar, and Google Scholar
Advanced Search
• Have an iPhone? (Sorry, no others yet)
Search for the free app “fastcase” which
contains statutes and cases from most states
and Federal courts.
http://www.fastcase.com/iphone/
http://scholar.google.com/advanced_scholar_search?hl=en&s
ciui=2&as_sdt=0,19
What We’ll Cover Today
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Elder Abuse Introduction
Mandatory Reporting
Current Law
Mandatory Reporters
Healthcare
Banks
Attorneys
Definitions
An introduction to “Crawford”
Questions
Elder Abuse Introduction
Job Security
2000 To 2010 Change
• Age and Sex Composition: 2010
• 2010 Census Briefs
• Issued May 2011, C2010BR-03, By Lindsay M. Howden
and Julie A. Meyer
We Are Getting Older
Elder Abuse
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•
•
Fastest growing age group
No known cure for dementia
Victims often do not report
Third fastest growth job is home
care
• Minimal background checks
• High temptation, low risk
Elder Abuse is a Crime
• Louisiana law protects adults aged
60 or older from
• acts or omissions which result in
physical or emotional abuse and
neglect,
• by caregivers and self-neglect
• acts of financial exploitation and
extortion.
Broken Trust: Elders, Family, and
Finances
• In just the three-month period surveyed,
$396,654,700 in losses from all forms of elder
financial abuse.
• Annualized, this estimates that more than $1.5
billion in losses is reported.
• However, the actual amount involved is really
much higher, as no dollar figure was provided
in nearly 40% of the articles. Estimating that
the unreported losses are equivalent, the
annual loss by victims of elder financial abuse
is estimated to be at least $2.6 billion.
•
Broken Trust: Elders, Family, and Finances. A Study on Elder Financial Abuse
Prevention by the MetLife Mature Market Institute, the National Committee for the
Prevention of Elder Abuse, and the Center for Gerontology at Virginia Polytechnic
Institute and State University MARCH 2009
Mandatory Reporting
• La. R.S. 15:1504 requires reporting of abuse
by ANY PERSON
• “having cause to believe that an adult's
physical or mental health or welfare has
been or may be further adversely affected
by abuse, neglect, or exploitation shall report
in accordance with R.S. 15:1505.”
• Failure to report is punishable by up to six
months imprisonment and/or a five-hundred
dollar fine. R.S. 14:403.2.
R.S. 15:1504
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•
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La. R.S. 15:1504. Mandatory reports and immunity
A. Any person, including but not limited to a health, mental health, and
social service practitioner, having cause to believe that an adult's
physical or mental health or welfare has been or may be further
adversely affected by abuse, neglect, or exploitation shall report in
accordance with R.S. 15:1505.
B. No cause of action shall exist against any person who in good faith
makes a report, cooperates in an investigation by an adult protective
agency, or participates in judicial proceedings authorized under the
provisions of this Chapter, or any adult protective services caseworker
who in good faith conducts an investigation or makes an investigative
judgment or disposition, and such person shall have immunity from civil
or criminal liability that otherwise might be incurred or imposed. This
immunity shall not be extended to:
(1) Any alleged principal, conspirator, or accessory to an offense
involving the abuse or neglect of the adult.
(2) Any person who makes a report known to be false or with reckless
disregard for the truth of the report.
(3) Any person charged with direct or constructive contempt of court,
any act of perjury as defined in Subpart C of Part VII of Chapter 1 of Title
14, or any offense affecting judicial functions and public records as
defined in Subpart D of Part VII of Chapter 1 of Title 14.
Acts 2008, No. 181, §2, eff. June 13, 2008.
R.S. 15:1505.
Mandatory Reporting
• Report shall be made to any adult
protection agency or to any local or state
law enforcement agency.
• Need not name the persons suspected
• Name and address of the adult, of the
person responsible for the care of the
adult, if available, and any other pertinent
information.
14:403.2. Abuse and neglect of adults
• Failure to Report is a Misdemeanor
Criminal Offense
• A. Any person, who under R.S. 15:1504(A), is
required to report the abuse or neglect of an
adult and knowingly and willfully fails to so
report shall be guilty of a misdemeanor
and upon conviction shall be fined not more
than five hundred dollars or imprisoned for not
more than six months, or both.
R.S. 14:403.2
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14:403.2. Abuse and neglect of adults
A. Any person, who under R.S. 15:1504(A), is required to report the abuse or neglect of an
adult and knowingly and willfully fails to so report shall be guilty of a misdemeanor and upon
conviction shall be fined not more than five hundred dollars or imprisoned for not more than
six months, or both.
B. Any person who knowingly and willfully violates the provisions of Chapter 14 of Title 15 of
the Louisiana Revised Statutes of 1950, or who knowingly and willfully obstructs the
procedures for receiving and investigating reports of adult abuse or neglect, or who
discloses without authorization confidential information about or contained within such
reports shall be guilty of a misdemeanor and upon conviction shall be fined not more than
five hundred dollars or imprisoned for not more than six months, or both.
C. Any person who reports an adult as abused or neglected to an adult protection agency
as defined in R.S. 15:1503 or to any law enforcement agency, knowing that such information
is false, shall be guilty of a misdemeanor and upon conviction shall be fined not more than
five hundred dollars or imprisoned for not more than six months, or both.
D.(1) Any person who retaliates against an individual who reports adult abuse to an adult
protection agency or to a law enforcement agency, shall be guilty of a misdemeanor and
upon conviction shall be fined not more than five hundred dollars or imprisoned for not more
than six months, or both.
(2) For the purposes of this Section, "retaliation" is defined as discharging, demoting, or
suspending an employee who reports the adult abuse; or threatening, harassing, or
discriminating against the reporter in any manner at any time provided the report is made in
good faith for the purpose of helping the adult protection agency or law enforcement
agency fulfill its responsibilities as set forth in Chapter 14 of Title 15 of the Louisiana Revised
Statutes of 1950.
Added by Acts……, §1, eff. June 13, 2008.
Who should report?
• ...anyone having cause to
believe
• that an adult's physical or
mental health or welfare has
been or may be further
adversely affected by
• abuse,
• neglect, or
• exploitation
• should report
Mandatory Reporting Licensed Health
Care Providers
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R.S. 40:2009.20. Duty to make complaints; penalty; immunity
B.(1) Any person who is engaged in the practice of medicine, social services,
facility administration, psychological or psychiatric services; or any registered
nurse, licensed practical nurse, nurse's aide, personal care attendant, respite
worker, physician's assistant, physical therapist, or any other direct caregiver
having knowledge that a consumer's physical or mental health or welfare has
been or may be further adversely affected by abuse, neglect, or exploitation
shall, within twenty-four hours, submit a report to the department (Dept. of Health
and Hospitals) or inform the unit or local law enforcement agency of such abuse
or neglect. ….
(2) Any person who knowingly or willfully violates the provisions of this Section
shall be fined not more than five hundred dollars or imprisoned for not more than
two months, or both.
C. Any person, other than the person alleged to be responsible for the abuse or
neglect, reporting pursuant to this Section in good faith shall have immunity from
any civil liability…
D. All hospitals shall permanently display in a prominent location in their
emergency rooms a copy of R.S. 40:2009.20.
*Older than R.S. 15:1504.
Does anything prevent reporting?
• HIPAA?
• Ethics / Scope of Practice?
http://www.hhs.gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909.html 5/19/2010
HIPAA
• …Where disclosures are required by law,
the Privacy Rule’s minimum necessary
standard does not apply, since the law
requiring the disclosure will establish the
limits on what should be disclosed.
• Moreover, with respect to required by
law disclosures, a covered entity cannot
use the Privacy Rule as a reason not to
comply with its other legal obligations….
http://www.hhs.gov/ocr/privacy/hipaa/faq/d
isclosures_required_by_law/909.html
HIPAA
• Section 164.512(a)(2) provides that in making a
“required by law” disclosure about adult
abuse, neglect or domestic violence (section
164.512(c)), for judicial or administrative
proceedings (section 164.512(e)), or for law
enforcement purposes (section 164.512(f)),
covered entities must also comply with any
additional privacy requirements in these
provisions that apply. However, none of the
additional procedural protections in sections
164.512(c), (e) and (f) apply to the type of
“required by law” disclosures to P&As under
the provisions of the DD and PAIMI Acts
discussed here.
http://www.hhs.gov/ocr/privacy/hipaa/faq/disclosures_required_by_law/909.
html
• http://www.nysna.org/practice/positions/position3_10.htm 5/19/2012
• http://www.nysna.org/practice/positions/position3_10.htm on 5/19/2012
Physicians
• The AMA recommends that physicians
routinely inquire about possible mistreatment
of elderly patients, much as they screen for
other conditions such as colorectal or breast
cancer.
• Precisely how to ask has not been
determined; however, if the questions raise
suspicion of an abusive situation, specific
steps need to be taken, as outlined below. …
• Elder abuse and neglect: What physicians can and
should do, MAHNAZ AHMAD, MD, MS and MARK S.
LACHS, MD, MPH* CLEVELAND CLINIC JOURNAL OF
MEDICINE VOLUME 69 • NUMBER 10 pg 806 OCTOBER
2002
Dorne E. Rosenblatt, MD, PhD
Ann Arbor, Mich
Downloaded from www.archfammed.com on May 30, 2010
• Care of the Aging Patient: From Evidence to Action | August 3, 2011
• Elder Abuse and Self-neglect: “I Don't Care Anything About Going to the Doctor,
to Be Honest. . . . ” Laura Mosqueda, MD, XinQi Dong, MD, MPH
• JAMA. 2011;306(5):532-540. doi:10.1001/jama.2011.10
Can Banks Report?
• CAN BANK TELLERS TELL? – LEGAL ISSUES RELATING
TO BANKS REPORTING FINANCIAL ABUSE OF THE
ELDERLY © American Bar Association 2003
• 4. There are no major legal obstacles to
participation in a bank reporting project:
• a. Banks that participate in reporting have no
reason to fear liability under federal law: the
Right to Financial Privacy Act applies only to
records and information sought by the federal
government, and Section 502(e) the
• Gramm-Leach-Bliley Act contains several
exemptions that would cover both
mandatory and voluntary reporting.
•
http://www.ncea.aoa.gov/ncearoot/main_site/pdf/publication/bank_reporting_long_final_52703.pdf
Banks: First Line of Defense?
• Banks have the potential to be the “first line of
defense”15 against financial abuse, by
identifying the abuse at its outset, before the
elder’s assets have been dissipated. “No
institution is in a better position to observe and
report” suspicious behavior,16 such as the
following:
Banks: Suspicious Behavior
• An unusual volume of banking activity.
• Banking activity inconsistent with a
customer’s usual habits.
• Sudden increases in incurred debt when
the elder appears unaware of
transactions.
• Withdrawal of funds by a fiduciary or
someone else handling the elder’s affairs,
with no apparent benefit to the elder.
•
CAN BANK TELLERS TELL? – LEGAL ISSUES RELATING TO BANKS REPORTING FINANCIAL ABUSE OF THE
ELDERLY © American Bar Association 2003
http://www.ncea.aoa.gov/ncearoot/main_site/pdf/publication/bank_reporting_long_final_52703.pdf
Attorneys Can Disclose
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"to prevent,
mitigate or
rectify
substantial injury to the financial
interests or property of another that
is reasonably certain to result or has
resulted from the client’s
commission of a crime or fraud in
furtherance of which the client has
used the lawyer’s services.“ Rule
1.6(b) (3)
Attorney Client Privilege
 To establish attorney-client privilege,
several elements must be proven:
 (1) the holder of the privilege is or sought
to become a client;
 (2) the communication was made to an
attorney or his subordinate in a
professional capacity;
 (3) the communication was made outside
the presence of strangers;
 (4) the communication was made to
obtain a legal opinion or services; and
 (5) the privilege has not been waived.
 Cacamo v. Liberty Mut. Fire Ins. Co., 798
So.2d 1210 (La. App., 2001), at pg. 1216.
Immunity
• Any person “who in good faith
makes a report, cooperates in an
investigation by an adult protective
agency, or participates in judicial
proceedings authorized under the
provisions of this Chapter,”
• “shall have immunity from civil or
criminal liability that otherwise
might be incurred or imposed. …”
R.S. 15:1504
Individual Duty
• While hospitals, and health care
related companies may have
reporting mechanisms in place
• Mandatory reporting applies to
• INDIVIDUALS
• Reporting to the company does not
absolve the individual of
responsibility
Administrators and Physicians
• Potential Civil Liability
• Potential Criminal Liability
A duty to inform: delay reporting allegations of child or elder abuse even—for internal
investigations—and you could land in jail - Safety & Security Agenda, HR Magazine,
September 2003, Diane Cadrain
The importance of reporting mistreatment of the elderly
American Family Physician, March 1, 2007 by Lisa M. Gibbs, Laura Mosqueda
Civil Liability - Negligence
• To establish liability in a negligence case under the
duty-risk analysis, the plaintiff must prove that:
• 1) Defendant owed a duty to Plaintiff
• 2) the requisite duty was breached by Defendant
• 3) the risk of harm was within the scope of
protection afforded by the duty breached, and
• 4) the conduct in question was a cause-in-fact of
the resulting harm.
• Leblanc v. Stevenson, 00-0157 (La. 10/17/2000)
Potential Legal Penalties For Failing To
Report
• * Criminal prosecution. In 42 states, there are criminal
consequences--such as a misdemeanor charge or a fine-for failure to report. Fines may range from $50 to $10,000,
depending on the state and the severity of the abuse.
Imprisonment may range from six months to four years.
• * Loss of licensure or other professional disciplinary action.
This varies by state, but in highly regulated professions-such health care and education--failure to report could
lead to loss of one's state license to practice.
• * Civil liability. Those who fail to report also may face civil
lawsuits seeking redress for damages. If the mandated
reporter is an HR manager, the company--and possibly the
HR manager--may face liability for failure to report suspect
actions by employees, as well as negligent hiring and
negligent supervision.
• Damages in a civil lawsuit--particularly for redress of pain
and suffering--are potentially far higher than criminal fines.
•
A duty to inform: delay reporting allegations of child or elder abuse even—
for internal
investigations—
and you could land in jail - Safety & Security Agenda by Diane Cadrain
What should be reported?
• burns, bruises, black or swollen eyes,
broken bones, dilated pupils, evidence of
restraints,
• bedsores, lack of clothing or dirty
clothing, body odor, dehydrated or
malnourished appearance,
• no utilities in the home,
• disappearance of personal property,
absence of food or medication, frequent
change in doctors, discontinuation of
visitor privileges, no visitors allowed,
• individual expressions of shame,
embarrassment or fear.
Who do I call?
• R.S. 15:1505. Contents of report and agency
to receive report
• Report shall be made to any adult protection
agency or to any local or state law
enforcement agency.
• Need not name the persons suspected
• Contain, name and address of the adult, the
name and address of the person responsible
for the care of the adult, if available, and any
other pertinent information.
How to report suspected abuse
or neglect:
• EPS Statewide Hotline (from
within Louisiana only) at 1-800259-4990
• If out-of-state, call 1-225-3429722.
• Call your local law
enforcement agency.
• Call 911.
To Contact EPS
•
•
•
•
•
New Orleans Region
Phone: (504) 832-1644
Toll Free (In-state only): 1-800-673-4673
Fax: (504) 835-0409
State office Hotline: 800-259-4990
• http://goea.louisiana.gov
• http://goea.louisiana.gov/index.cfm?md=pagebui
lder&tmp=home&pid=5&pnid=2&nid=16
DHH & APS
• The Office of Aging and Adult Services
(OAAS), Adult Protective Services (APS) DHH
as the agency responsible for carrying out the
mandate of 14:403.2 with regard to adults with
disabilities ages 18-59
• (225) 342-9057 or (800) 898-4910
• Fax (225) 342-9069
• http://www.dhh.state.la.us/offices/Default.asp?ID=
95&Print=1
What is the Elderly Protective
Services Program?
• The purpose of Elderly Protective
Services (EPS) is to protect adults 60
years of age and older
• who cannot physically or mentally
protect themselves and
• who are harmed or threatened with
harm through action or inaction by
themselves or by the individuals
responsible for their care or by other
persons.
What does EPS do?
• Acts to prevent, remedy, halt or hinder acts of
abuse and neglect against an elder adult in the
community, while
• promoting the maximum possible degree of
personal freedom, dignity and selfdetermination.
• Only when other efforts fail will EPS recommend
referral or admission to an appropriate care
facility for the elder adult, or seek judicial
remedy to the situation.
What happens after a report is
made?
• First,
• Trained EPS staff screen all
reports.
• If a case is ineligible for
processing by the EPS office the
case is referred to alternative
community services and
resources for action.
After a report is made to EPS
• Eligible cases of abuse or neglect are
investigated by EPS program staff, intervene
when and where appropriate, and prepare a
plan of resolution utilizing community
resources.
• EPS staff monitor this plan at each step until
the situation is stabilized.
• EPS program staff may call for physical,
psychiatric or psychological evaluations as
necessary, and will assist in obtaining
alternative living arrangements for older
adults when the situation requires it.
What happens after a report is
made?
• When EPS staff determine that a
case of abuse or neglect cannot be
remedied by other means, they
may seek judicial action and may
refer the case to the local District
Attorney for civil or criminal action.
CRAWFORD v. WASHINGTON
• The question presented is whether this
procedure complied with the Sixth
Amendment’s guarantee that, .[i]n all criminal
prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses
against him..
• CRAWFORD V. WASHINGTON (02-9410) 541
U.S. 36 (2004) at 36.
Confrontation Clause
• Where testimonial statements are at issue, the
only indicium of reliability sufficient to satisfy
constitutional demands is the one the
Constitution actually prescribes:
confrontation.
• CRAWFORD V. WASHINGTON (02-9410) 541
U.S. 36 (2004) at 69.
Nontestimonial Hearsay
• Where nontestimonial hearsay is at issue, it is
wholly consistent with the Framers. design to
afford the States flexibility in their
development of hearsay law as does Roberts,
and as would an approach that exempted
such statements from Confrontation Clause
scrutiny altogether.
• CRAWFORD V. WASHINGTON (02-9410) 541
U.S. 36 (2004) at 68.
Testimonial Evidence
• Where testimonial evidence is at issue,
however, the Sixth Amendment demands
what the common law required: unavailability
and a prior opportunity for cross examination.
We leave for another day any effort to spell
out a comprehensive definition of testimonial..
• CRAWFORD V. WASHINGTON (02-9410) 541
U.S. 36 (2004) at 69.
“Testimonial”
• Whatever else the term covers, it applies at a
minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former
trial; and to police interrogations. These are
the modern practices with closest kinship to
the abuses at which the Confrontation Clause
was directed.
• CRAWFORD V. WASHINGTON (02-9410) 541
U.S. 36 (2004) at 69.
Dealing With Crawford
•
•
•
•
Take pictures
Gather physical evidence
Gather documentary evidence
Gather evidence in a way to makes it
admissible
• Identify ALL possible witnesses, not just the
victim
• If witness has a bad memory, they can refresh
that memory from their own writing
• Set a Preliminary Exam if witness is in ill health
or declining
Absent Witnesses
• We reiterate what we said in Crawford:
that “the rule of forfeiture by wrongdoing . . .
extinguishes confrontation claims on
essentially equitable grounds.”541 U. S., at 62
(citing Reynolds, 98 U. S., at 158–
159). That is,
one who obtains the absence of a witness by
wrongdoing forfeits the constitutional right to
confrontation.
• Davis v. Washington, 547 U.S. 813 (2006)
911 Calls?
• Statements are nontestimonial when made in
the course of police interrogation under
circumstances objectively indicating that the
primary purpose of the interrogation is to
enable police assistance to meet an ongoing
emergency. They are testimonial when the
circumstances objectively indicate that there
is no such ongoing emergency, and that the
primary purpose of the interrogation is to
establish or prove past events potentially
relevant to later criminal prosecution.
• Davis v. Washington, 547 U.S. 813 (2006)
Excited Utterances
• A statement “relating to a startling event or
condition made while the declarant was
under the stress of excitement caused by the
event or condition”
• La. Code of Evidence Art. 803
Present Sense Impression
• A statement “describing or explaining an
event or condition made while the declarant
was perceiving the event or condition or
immediately thereafter”
• La. Code of Evidence Art. 803
Definitions
La. R.S. 15:1503. Definitions
• For the purposes of this Chapter, the following
terms shall have the following meanings,
unless the context clearly indicates a different
meaning:
• (1) "Abandonment" means the
desertion or willful forsaking of an
adult by anyone having care or
custody of that person under
circumstances in which a
reasonable person would continue
to provide care and custody.
"Abuse"
• (2) "Abuse" means the infliction of
physical or mental injury, or actions
which may reasonably be
expected to inflict physical injury,
on an adult by other parties,
including but not limited to such
means as sexual abuse,
abandonment, isolation,
exploitation, or extortion of funds or
other things of value.
"Adult"
• (3) "Adult" means any individual
eighteen years of age or older, or
an emancipated minor who, due to
a physical, mental, or
developmental disability or the
infirmities of aging, is unable to
manage his own resources, carry
out the activities of daily living, or
protect himself from abuse, neglect,
or exploitation.
"Adult protection agency"
• (4)(a) "Adult protection agency" means the office
of elderly affairs in the office of the governor, for
any individual sixty years of age or older in need
of adult protective services as provided in this
Chapter.
• (b) "Adult protection agency" means the
Department of Health and Hospitals for any
individual between the ages of eighteen and fiftynine years of age in need of adult protective
services as provided in this Chapter. The secretary
of the Department of Health and Hospitals may
assign the duties and powers provided in this
Chapter to any office of the department for
provision of adult protective services, as provided
in this Chapter.
"Capacity to consent"
• (5) "Capacity to consent" means the
ability to understand and appreciate the
nature and consequences of making
decisions concerning one's person,
including but not limited to provisions for
health or mental health care, food,
shelter, clothing, safety, or financial
affairs. This determination may be
based on assessment or investigative
findings, observation, or medical or
mental health evaluations.
"Caregiver"
• (6) "Caregiver" means any
person or persons, either
temporarily or permanently,
responsible for the care of an
aged person or a physically or
mentally disabled adult…..
"Caregiver"
• (6) "Caregiver" means any person or persons,
either temporarily or permanently, responsible for
the care of an aged person or a physically or
mentally disabled adult. "Caregiver" includes but
is not limited to adult children, parents, relatives,
neighbors, daycare personnel, adult foster home
sponsors, personnel of public and private
institutions and facilities, adult congregate living
facilities, and nursing homes which have
voluntarily assumed the care of an aged person,
or disabled adult, have assumed voluntary
residence with an aged person or disabled adult,
or have assumed voluntary use or tutelage of an
aged or disabled person's assets, funds, or
property, and specifically shall include city, parish,
or state law enforcement agencies.
"Exploitation"
• (7) "Exploitation" means the
illegal or improper use or
management of an aged
person's or disabled adult's
funds, assets, or property, or the
use of an aged person's or
disabled adult's power of
attorney or guardianship for
one's own profit or advantage.
"Extortion"
• (8) "Extortion" is the acquisition
of a thing of value from an
unwilling or reluctant adult by
physical force, intimidation, or
abuse of legal or official
authority.
"Isolation"
• (9) "Isolation" includes:
• (a) Intentional acts committed for
the purpose of preventing, and
which do serve to prevent, an adult
from having contact with family,
friends, or concerned persons. This
shall not be construed to affect a
legal restraining order.
• (b) Intentional acts committed to
prevent an adult from receiving his
mail or telephone calls.
"Isolation"
• (c) Intentional acts of physical or chemical
restraint of an adult committed for the
purpose of preventing contact with visitors,
family, friends, or other concerned persons.
• (d) Intentional acts which restrict, place, or
confine an adult in a restricted area for the
purposes of social deprivation or preventing
contact with family, friends, visitors, or other
concerned persons. However, medical
isolation prescribed by a licensed physician
caring for the adult shall not be included in
this definition.
"Neglect"
• (10) "Neglect" means the failure, by
a caregiver responsible for an
adult's care or by other parties, to
provide the proper or necessary
support or medical, surgical, or any
other care necessary for his wellbeing. No adult who is being provided
treatment in accordance with a recognized
religious method of healing in lieu of medical
treatment shall for that reason alone be
considered to be neglected or abused.
"Protective services"
• (11) "Protective services" includes but is not
limited to:
• (a) Conducting investigations and
assessments of complaints of possible abuse,
neglect, or exploitation to determine if the
situation and condition of the adult warrant
further action.
• (b) Preparing a social services plan utilizing
community resources aimed at remedying
abuse, neglect, and exploitation.
• (c) Case management to assure stabilization
of the situation.
• (d) Referral for legal assistance to initiate any
necessary extrajudicial remedial action.
"Self-neglect"
• (12) "Self-neglect" means the failure, either
by the adult's action or inaction, to provide
the proper or necessary support or medical,
surgical, or any other care necessary for his
own well-being. No adult who is being
provided treatment in accordance with a
recognized religious method of healing in lieu
of medical treatment shall for that reason
alone be considered to be self-neglected.
"Sexual abuse"
• (13) "Sexual abuse" means abuse of an adult,
as defined in this Section, when any of the
following occur:
• (a) The adult is forced, threatened, or
otherwise coerced by a person into sexual
activity or contact.
• (b) The adult is involuntarily exposed to
sexually explicit material, sexually explicit
language, or sexual activity or contact.
• (c) The adult lacks the capacity to consent,
and a person engages in sexual activity or
contact with that adult.
• Acts 2008, No. 181, §2, eff. June 13, 2008;
Acts 2010, No. 342, §1.
A Note on Power of Attorney
•
•
•
•
The Elderly Person Is Always In Charge
NOT a relative
NOT a person with Power of Attorney
Only where Committed or Interdicted does
this change
• The Elderly Person decides who visits them
• Remember "Exploitation" and “Isolation”
Rules to Live By
• Rule 1 - Decision-Making: General Principles:
• A GUARDIAN SHALL EXERCISE EXTREME CARE AND
DILIGENCE WHEN MAKING DECISIONS ON BEHALF OF
A WARD. ALL DECISIONS SHALL BE MADE IN A
MANNER WHICH PROTECTS THE CIVIL RIGHTS AND
LIBERTIES OF THE WARD AND MAXIMIZES
INDEPENDENCE AND SELF-RELIANCE.
• 1.1 The guardian shall make all reasonable efforts to
ascertain the preferences of the ward, both past and
current, regarding all decisions which the guardian is
empowered to make.
• 1.2 The guardian shall make decisions in accordance
with the ascertainable preferences of the ward, past
or current, in all instances except those in which a
guardian is reasonably certain that substantial harm
will result from such a decision.
Rules to Live By
• 1.3 When the preferences of the ward cannot be
ascertained, a guardian is responsible for making decisions
which are in the best interests of the ward.
• 1.4 The guardian shall be cognizant of his or her own
limitations of knowledge, shall carefully consider the views
and opinions of those involved in the treatment and care of
the ward, and shall also seek independent opinions when
necessary.
• 1.5 The guardian must recognize that his or her decisions
are open to the scrutiny of other interested parties and,
consequently, to criticism and challenge. Nonetheless, the
guardian alone is ultimately responsible for decisions made
on behalf of the ward.
• 1.6 A guardian shall refrain from decision making in areas
outside the scope of the guardianship order and, when
necessary, assist the ward by ensuring such decisions are
made in an autonomous fashion.
• A Model Code Of Ethics For Guardians – Cassanto, Simon
and Roman, Copyright 1988.
Summary
• Everyone is a mandatory reporter in Louisiana
• Not reporting is a crime
• Not reporting may also subject a
person/company to civil liability and licensing
issues
• Reporting provides statutory immunity under
state law
• Power of Attorney is not the “boss” and does
not have a “get out of jail free card”
• Report to EPS or Local Police or Sheriff
Can I Look Up The Law?
• Yes!
• The Louisiana Legislature web site has a
searchable database of current law at:
http://www.legis.state.la.us/
• Google Scholar, and Google Scholar
Advanced Search
• Have an iPhone? (Sorry, no others yet)
Search for the free app “fastcase” which
contains statutes and cases from most states
and Federal courts.
http://www.fastcase.com/iphone/
http://scholar.google.com/advanced_scholar_search?hl=en&s
ciui=2&as_sdt=0,19
Questions and Answers
World
Elder Abuse
Awareness
Day 2012
Seniors
And
Law
Enforcement
Together