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Elder Law Issues

Though the elderly possess the same civil and human rights as members of every other age group, they  are not in a position to voice their concerns due to a number of reasons  ranging from  physical and mental infirmities,  meager  economic resources, fear of  destitution, apprehension of torture and even death.  Elder abuse also have a dubious nexus with many issues such as asset protection and planning and in many a case, it is part of a larger conspiracy involving the inheritance of the financial assets of the elderly  like  wills, estate planning, business continuation and succession, power of attorney, etc.

Mistreatment of an elderly person may be intentional or unintentional. Intentional mistreatment involves a conscious and deliberate attempt to inflict harm or injury, such as verbal abuse or battering while unintentional mistreatment occurs when an inadvertent action results in harm to the elderly person.  The latter is usually due to ignorance, inexperience, or inability of the caretaker to provide appropriate attention.

When it comes to elder abuse at nursing homes, however, the common explanation or excuse for the increasing abuse is the growing number of people living in nursing homes and the difficulty of staffing them with well-trained individuals.  There is a scarcity of trained professionals in this area and most of the nursing homes are understaffed.  A 2002 U.S. Department of Health and Human Services study found “strong and compelling” evidence that nine out of 10 U.S. nursing homes are understaffed.  Lower wages and the lack of benefits is another factor repelling qualified applicants from this field.  Thus, the over-worked and underpaid employees vent their fury and frustrations on the hapless patients.

In addition, medical conditions like Alzheimer’s often prevent the elderly from telling others what’s happening or asking for help.  Hence until recently, it was a silent epidemic because until the 1970s, elder abuse was not considered a serious public health concern.  Now the figures are skyrocketing and in New Jersey alone, the number of reported cases nearly doubled from 1996 to 1999.

Protection of the rights of the elderly is envisaged and enshrined in both federal and state laws and regulations.  The federal Nursing Home Reform Act (NHRA), part of the Omnibus Reconciliation Act of 1987, applies to all nursing facilities who receive Medicare or Medicaid funds.  New Jersey statutes do not distinguish nursing homes that participate in Medicaid or Medicare from those that do not.  In re Keri, 181 N.J. 50, 64 (N.J. 2004).  The NHRA also provide residents basic human rights for dignified existence which includes right to choose, privacy, and right to self-determination.

New Jersey also has laws in place to prevent elder abuse at the hands of nurses’ aides. Nursing homes in that state are required to check the records of the New Jersey Aide Registry, a computerized database that stores information on nurses’ aides.  The registry informs nursing homes whether an aide is certified and if there are any past instances of mistreatment, including a conviction or a finding of abuse, neglect, or misappropriation of a resident’s property.  The nursing home is not allowed to employ a person with such a history.

New Jersey’s Prevention of Domestic Violence Act of 1991 also specifically recognizes abuse of the elderly by declaring in the Legislative history that “violence against the elderly and disabled, including criminal neglect of the elderly and disabled … must be recognized and addressed on an equal basis as violence against spouses and children in order to fulfill our responsibility as a society to protect those who are less able to protect themselves.” See N.J. Stat. 2C:25-17 (2005).

Inside Elder Law Issues