Out of the Shadows
Uncovering Substance Use and Elder Abuse
Law Enforcement and the Courts
The Federal Older Americans Act provides definitions of elder abuse and authorizes the use of Federal funds for the National Center on Elder Abuse. It also authorizes certain elder abuse awareness, training, and coordination activities in States and local communities, but does not fund Adult Protective Services or shelters for abused older persons. ref
An increasing number of States are passing laws or taking other measures that provide explicit criminal penalties for various forms of elder abuse. Even if no specific statute or provision authorizes criminal prosecution, a jurisdiction's basic criminal laws (e.g., battery, assault, fraud, rape, and theft) can be used to prosecute someone who abuses an older person.
Although definitions vary, all States have some legal protection for victims of elder abuse within the context of domestic violence. ref Older adults who are victims of intimate partner abuse may seek civil protection orders -- legally binding orders designed to prevent partner abuse. Under these orders, the abusive partner or family member cannot contact the victim at any place he or she designates (e.g., home or work). Covered activities include contact by phone, fax, e-mail, and beeper, or through an intermediary. An individual who violates such an order may face civil contempt, misdemeanor, or felony charges. Each State has its own laws regarding civil protective orders (restraining orders or "no contact orders") and ex parte orders (applying without a lawyer present on his or her behalf).
Local domestic violence or victim assistance centers can provide information regarding specific State laws. A victim is eligible for special treatment under the law, including removal of the abuser from his or her home (ex parte and protective orders).
Each State may differ slightly in defining who is covered under specific domestic violence victim laws. But generally, the definitions include:
- Current or ex-spouse
- Cohabitant (who have lived in the same dwelling as a sexual partner for at least 90 days in the past 365 days)
- Child (in 75 percent of States)
- Person related to the abuser by blood, marriage, or adoption
- Parent or stepparent who has lived with the abuser for 90 days within the past year
- "Vulnerable adult" (who lacks the physical or mental capacity to ensure his or her well-being or care for daily needs)
- Individual with a child in common with the abuser, such as a girlfriend
In most States, an abused person can file for a civil protection order with the courts or the local sheriff without having to hire an attorney. (Local domestic violence shelters or hotlines have more State-specific information). State domestic violence programs are listed in the Resources section of this course.
The Older Americans Act requires each State to appoint a legal assistance developer responsible for developing and coordinating the State's legal services and elder rights programs.
Older adults or their families may seek legal advice on numerous elder abuse-related topics, such as:
- Lawsuits to recover assets or property
- Restraining orders
- Guardianships (conservatorships)
- Prosecution of offenders
Financial Crimes Against the Elderly, published by the U.S. Department of Justice, Office of Community Oriented Policing Services (COPS), provides a comprehensive overview of financial elder abuse and guidelines for customizing a law enforcement approach to address the problem locally.ref
More information about legal rights and resources for older people can be found on the U.S. Administration on Aging Web site.
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Last Updated: 8/3/04
SAMHSA is an Agency of the U.S. Department of Health & Human Services
