REPORTING ABUSE OF THE ELDERLY
REPORTING ABUSE OF THE ELDERLY
As the baby boomers begin to age, the issue of abuse of the elderly has become a very important topic. In Texas, the law requires any person who believes that an elderly adult or one with disabilities is being abused, neglected or exploited to report the circumstance to the Texas Department of Family and Protective Services (DFPS) Statewide Intake or to the Department of Aging and Disability Services.
(Adult Protective Services (APS) has a hotline where abuse can be reported. APS: 1-800-647-7418.)
Once reported, APS will investigate allegations of abuse, neglect and exploitation in facilities that care for adults, including private homes, adult foster homes, unlicensed room and board, state facilities and community centers that provide mental health and mental retardation services, home health agency staff and exploitation in nursing homes when the alleged perpetrator is someone outside the facility. If there is abuse or neglect occurring, APS may take steps to notify the local courts that a Guardianship may be necessary.
Guardianship is a legal process used to provide protection for adults who are incapacitated. The Probate Code defines an incapacitated person as “An adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter to himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.” Usually these elderly have severe memory loss, dementia and cognitive impairments that seriously jeopardize their health and well-being. Many of these elderly have experienced self-neglect, physical abuse or financial exploitation.
A guardian is appointed only when it has been determined that the elderly lacks decision-making capacity and must have a surrogate decision-maker appointed to advocate for services and give informed consent for medical procedures.
Abuse of the elderly is not always easy to tell, as many adults that are being subjected to abuse, neglect or exploitation are embarrassed or unable to express that abuse is occurring. It is important that people surrounding the elderly take notice of:
• specific signs of abuse, such as bruises, pressure marks, broken bones, abrasions and burns that may be an indication of physical abuse;
• neglect or mistreatment, unexplained withdrawal from normal activities; a sudden change in alertness and unusual depression may be indicators of emotional abuse;
• bruises around the breasts or genital area can occur from sexual abuse;
• sudden changes in financial situations may be the result of exploitation;
• bedsores, unattended medical needs, poor hygiene and unusual weight loss are indicators of possible neglect;
• behavior such as belittling, threats and other uses of power and control by spouses are indicators of verbal or emotional abuse;
• strained or tense relationships, frequent arguments between the caregiver and elderly person are also signs.
If you know of someone who may be the subject of abuse, you can complete a Suggestion of Need for a Guardian and submit it to the Probate Court in your county. The Court will investigate whether a guardianship is needed and appoint someone using the priority given by the Texas Probate Code.
The Court can skip over a person higher on the priority list if the court finds that person to be disqualified. A person is disqualified to be appointed guardian if he or she is a minor; a person whose conduct is notoriously bad; an incapacitated person; a person who has certain conflicts of interest with the ward; a person who, because of inexperience, lack of education or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward’s estate; a person found unsuitable by the court; a person specifically disqualified from serving as guardian by the ward prior to his or her incapacity in a properly executed designation of guardian; and a person who is not a resident of Texas and who has not designated an agent in Texas for service of process.
Because of these priorities, it is important for an adult individual who is worried about his or her possible future incapacitation to consider designating those persons he or she wishes to serve as guardian and those persons he or she wishes to disqualify from serving as guardian, especially if a non-relative is preferred.
Patricia B. Cole is a shareholder with Decker, Jones, McMackin, McClane, Hall & Bates P.C., with a practice area focus on probate, estate planning and guardianships. Contact her at email@example.com.