Morelle Announces Bill to Strengthen Legal Protections Against Elder Abuse in New York State

April 16, 2012
Assemblyman Joseph D. Morelle, D-Irondequoit, was joined today by advocates for the elderly as he announced legislation aimed at protecting senior citizens from abuse by caregivers. (Memo for A. 9764 attached.)

Under current law, the term “caregiver” only applies to paid or court-ordered aides. Morelle’s bill expands that definition to include all individuals, including volunteers and family members, responsible for the health and well-being of an elderly person.

“Anyone who neglects, injures, defrauds or otherwise harms a senior entrusted to their care must face the consequences of their actions, and we must give law enforcement the tools to make that happen,” Morelle said.

“With this, we close a dangerous loophole that leaves far too many of our elderly vulnerable to abuse, a situation more common than the public may realize.”

Morelle said his bill is based in part on a recent study conducted by Lifespan of Greater Rochester Inc., in conjunction with the New York City Department for the Aging and Cornell University. The report found that 141 out of 1,000 older New Yorkers have experienced abuse since turning age 60, and that nearly 90 percent of those responsible were not paid health care workers.

“The New York State Elder Abuse Prevalence study Lifespan released in 2011 confirmed that elder abuse occurs in every neighborhood regardless of demographics. The study also confirmed that in the majority of abuse and financial exploitation cases, the perpetrators are family members, friends and neighbors – often, allegedly, helping to ‘care’ for the victim,” said Ann Marie Cook, Lifespan President and CEO.

“Broadening the definition of caregiver under this statute to include unpaid, informal caregivers such as family members, friends and acquaintances will allow more serious charges against such perpetrators of elder abuse,” Cook said.

“While the vast majority of caregivers are good, caring and decent people who honor and respect those they care for, abusive caregivers who are unpaid family members, friends and neighbors currently cannot be prosecuted like a paid caregiver,” said Art Mason, Director of Lifespan’s Elder Abuse Prevention Program.

“They are thus avoiding full accountability for their behaviors. This proposed change will help us prosecute abusers and protect the most at-risk in our society - elders who are least able to defend themselves from physical or sexual abuse,” Mason said.

“I’m grateful to Ann Marie and Lifespan for working so hard to educate the public and lawmakers about this often hidden problem, and for being such great partners in the effort to find an answer,” Morelle said. “I hope the Legislature acts swiftly on behalf of our seniors, who have given so much to our community and our state.”

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
Submitted in accordance with Assembly Rule III, Sec 1(e)

BILL NUMBER: A. 9764 (Same as S. 6865)

TITLE OF BILL:

An act to amend the penal law, in relation to endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person.

PURPOSE:

To expand the definition of caregiver for the purpose of sections 260.32 and 260.34 of the penal law.

SUMMARY OF PROVISIONS:

Section one of the bill amends subdivision 1 of section 260.31 of the penal law to expand the definition of caregiver to include a person who voluntarily, or otherwise by operation of law, assumes responsibility for providing care for a vulnerable elderly person, or an incompetent or physically disabled person.

Section two provides that the bill shall take effect on the sixtieth day after it shall become a law.

EXISTING LAW:

The definition of caregiver in section 260.31 of the penal law is limited to a person who assumes responsibility for the care of a vulnerable elderly person, or an incompetent or physically disabled person pursuant to a court order, or receives monetary or other valuable consideration for providing such care.

JUSTIFICATION:

Prosecutors, law enforcement officers, and elder advocates have been frustrated by the limitations of New York’s endangering the welfare of a vulnerable elderly person law. By not including unpaid caregivers in the definition, vulnerable older adults have been deprived of the added protection they need and deserve. By expanding the definition to include all caregivers, the amended law will impose stiff criminal penalties for inflicting harm on our most vulnerable populations, and will serve as a deterrent to inflicting such harm.

Elder abuse occurs more often in people’s homes than in institutional settings and is largely hidden, shrouded in secrecy and shame. Studies and reports from professionals in the field suggest that elder abuse in domestic settings is a widespread, escalating epidemic – a serious problem that exists in every community and every neighborhood. Older adults are often reluctant to reveal incidents of abuse, particularly when the abuser is a family member or trusted acquaintance. When mistreatment is reported, abusers should be held accountable for the crimes they perpetrate against their innocent victims, and should face stiff penalties for those crimes.

Elder abuse in community settings takes various forms. It can be physical, emotional, sexual, or financial. It can be neglect of the older person’s needs, even to the point of abandonment. It includes financial exploitation and consumer fraud and scams that target older adults. The older adult may be the victim of several forms of mistreatment.

The recent New York State Elder Abuse Prevalence Study found that 141 out of 1,000 older New Yorkers self-reported that they have experienced an elder abuse event since turning age 60. Seventy-six out of 1,000 reported abuse within the one year period preceding the study interview.

Of the reported abusers, 88% were people other than paid home care aides, including relatives, friends, and neighbors. In some cases there were multiple abusers involved. New York’s population of older adults is rapidly increasing. As people live longer in the community, and as frailty and vulnerability increase, the potential for abuse, neglect and exploitation will also increase.

Elder mistreatment can have potentially devastating, long-term effects on the health and well-being of older New Yorkers. Injuries sustained by an older adult often have much more serious consequences than they would on a younger person due to increased frailty and slower recovery time.

Often cases include several types of abuse. Financial exploitation may include neglect as resources are depleted, physical and/or psychological abuse when victims are threatened or injured. Financially exploited frail older adults are often neglected. Their personal needs are ignored, and they are not provided adequate health care or proper nutrition. The physical, emotional, and financial effects are often not reversible. Research has shown that older adults who have been mistreated in any way are more likely to die sooner than those who have not suffered mistreatment.

Recommendations developed during the New York State Elder Abuse Summit identified the limited definition of caregiver as a barrier to prosecuting many abuse cases. Expanding the definition to include all caregivers who cause injury to a vulnerable elderly person or an incompetent or physically disabled person will eliminate that barrier.

As an increasing number of older adults, or incapacitated or physically disabled people of any age are able to live more independently in the community, they become more vulnerable to harm. Cases of abuse at the hands of unpaid caregivers are increasing. This bill provides enhanced penalties for offenders and added protection for victims when any caregiver endangers their welfare.

Although there are many caring people who voluntarily do their best to provide support and assistance to those who need extra help to remain as independent as possible, there are unfortunately some caregivers who cause such egregious harm to their victims that they should not be allowed to escape criminal prosecution. This bill does not seek to discourage voluntary caregiving, but will give prosecutors additional tools to help reduce the growing incidence and risk of abuse in an increasing elder population throughout New York State by holding abusers accountable for their actions.

Definitions in section 15.05 of the penal law further clarify the applicable culpable mental states required for criminal liability under endangering the welfare of a vulnerable elderly person, or incompetent or physically disabled person:

“Intentionally” – A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

“Recklessly” – A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

“Criminal negligence” – A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.

The definition of caregiver also includes guardians who have been appointed under New York’s Mental Hygiene Law or Surrogate’s Court Procedure Act, as well as agents appointed under a health care proxy or power of attorney.

LEGISLATIVE HISTORY:

New bill

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE:

This act shall take effect on the sixtieth day after it shall have become law.