Important Elder Abuse Laws: Who Can Sue for Elder Abuse or Neglect?

Learn how elder abuse laws apply to your case. Family members and others close to the victim may qualify to sue abusive care providers.

Elder abuse and neglect by nursing homes and at-home care services is a despicable breach of the caregivers’ duty and your trust.

The victim’s spouse, family members, legal guardian, and sometimes the legal heirs may be able to file an elder abuse lawsuit.

Millions of dependent adults over age 60 are abused, neglected, or financially exploited every year.

By the year 2030, “baby boomers” will all be older than 65. The proportion of older Americans is growing so fast that by 2035, there will be more residents over 65 years of age than those under the age of 18 for the first time in history.

As our population ages, intervention and prevention of elder abuse are vital to stemming this significant public health threat.

State and Federal Nursing Home Laws

Several federal and state laws help protect elderly and disabled patients in nursing homes and other types of long-term health care facilities.

Nursing Home Reform Act

In 1987, Congress passed the Nursing Home Reform Act. The act applies to all nursing home facilities receiving Medicare and Medicaid funding.

Under the act, nursing homes:

“Must provide services and activities to attain the highest practicable physical, mental, and psychological well-being of each resident in accordance with a written plan of care.”

Patients in nursing homes are entitled to:

  • Privacy
  • Services to meet their physical, mental, and psychosocial needs
  • Freely communicate in and out of the facility
  • Be treated with dignity and respect
  • Be free from mistreatment, abuse, and neglect
  • Make their own decisions
  • Lodge complaints without facing retaliation
  • Be free from physical restraints
  • Participate in family, resident, and community groups
  • Participate in their care plan, including advance notice of changes in treatment, medications, or facility standing

To ensure compliance with regulations, nursing homes receiving federal funds are subject to periodic unannounced visits by federal investigators. When found to violate the provisions of the act, Medicare and Medicaid may deny continued funding.

Older Americans Act – Reauthorized 2016

The Older Americans Act contains definitions of elder abuse and authorizes federal funding for the National Center on Elder Abuse (NCEA).

The NCEA works with elder abuse and neglect programs throughout the country to promote awareness of elder abuse, develop community responses to abuse, and train professionals to recognize and respond to elder abuse and neglect.

The Elder Justice Act of 2009

The Elder Justice Act went into effect in 2010 as part of the Patient Protection and Affordable Care Act to facilitate the coordination of elder abuse detection and prevention programs within the Offices of the Secretary of Health and Human Services (HHS).

The Act requires nursing home operators and employees to file a written report of suspected elder abuse or other crimes to the federal HHS office and the local state authorities.

Native Indigenous Elder Justice Initiative

The Native Indigenous Elder Initiative was created to provide culturally appropriate information and education about elder abuse, neglect, and exploitation in native communities. The program serves American Indian, Alaska Native, and Native Hawaiian elders.

State Elder Care Protection Laws

Long-term care facilities are usually licensed and regulated at the state level, with every state having rules governing nursing home care.

Regulations vary from state to state, but most include rules regarding:

  • Residency contracts, including guidelines on admission
  • Medication delivery provisions, including who is authorized to distribute medications to patients
  • Food and dietary regulations
  • Nursing home staff and staff training, including background checks
  • Rules for dementia care
  • Inspection requirements

Who Can Sue for Elder Abuse?

You’re never too old to file a personal injury lawsuit. Capable elder abuse victims can sue negligent and abusive caregivers on their own. When the abuse victim is unable to handle their own affairs, or has died as a result of the abuse, others can step in to seek justice from the wrongdoers.

Aside from the victim, elder abuse lawsuits may be filed by the victim’s:

  • Spouse
  • Legal guardian or conservator
  • Family members who witnessed or discovered the abuse
  • Representative with power of attorney (often a family member)
  • Heirs or successors

Elder abuse cases can be complicated, involving issues of family authorization, patient competency, and medical privacy. Nursing home wrongful death cases and probate concerns are especially challenging for the family.

There may be grounds for two claims against the at-fault parties: one for negligence, and another for medical malpractice.

Only an experienced personal injury attorney should handle a nursing home abuse claim. Today, many attorneys specialize in elder abuse cases. They have specific training and experience in identifying nursing home abuse and neglect.

The statute of limitations for elder abuse and medical malpractice varies from state to state. It ranges anywhere from one to five years, depending on the type of negligence and the time you first discovered it, so you must move as quickly as possible.

An experienced attorney can recover money for the cost of your loved one’s future medical care, your out-of-pocket expenses, your lost wages while caring for your loved one, and for the pain and suffering and emotional distress your loved one suffered at the hands of the nursing home.

Also, if your attorney can prove the nursing home’s actions rose to the level of reckless conduct, or were criminal assault, your loved one may receive punitive damages. Punitive damages are the court’s way of punishing the nursing home for its actions.

Take Action If You Suspect Elder Abuse

Older adults can be abused or neglected in just about any situation. You may have an elderly relative in a nursing home or other long-term residential care.

Remove your loved one from the nursing home as soon as possible. Contact your loved one’s primary care doctor to advise of the circumstances and arrange for further care. In most states, you have a legal obligation to remove your loved one from a dangerous environment.

If you discover severe abuse or untreated injuries to a nursing home patient, immediately call 911 and ask for police and an ambulance. Then contact a personal injury lawyer for important legal advice.

Report the nursing home to authorities. Physical abuse, sexual abuse, and negligent care of the elderly are crimes. Federal and state regulators will investigate and force improvements or close the nursing home.

Report suspected elder abuse to your State Adult Protective Services Office.

Warning Signs: Recognizing Common Elder Abuse

Elder abuse can happen in the home, in an assisted living facility, or in a nursing home. Elder financial abuse can often be traced to non-healthcare workers in the home or new “friends” with undue influence on the victim.

Abuse resulting in great bodily harm can be fatal, although most elder deaths in nursing homes are never investigated, even when they happen unexpectedly.

Types of abuse include:

  • Physical abuse
  • Emotional abuse
  • Neglect
  • Abandonment
  • Sexual abuse
  • Financial abuse

Keep in mind that many victims of elder abuse are afraid to speak up, or are unable to speak for themselves.

Protecting Non-Verbal Older People

While it’s true that some dementia patients become delusional and make false accusations against their caregivers, the harsh reality is that elderly dementia patients are at greater risk for abuse and neglect.

You can recognize signs of elder abuse even in confused or non-verbal older people. Trust your gut. Any warning signs of elder abuse warrant further investigation. There are ways to report suspected abuse that allow you to stay anonymous if you prefer.

A big red flag is the nursing home staff not leaving you alone with the elderly person or intervening before you can help the patient change clothes or go to the bathroom. They may not want you to see signs of physical or sexual abuse.

Keep an eye out for unexplained changes in an older person’s behavior or personality that can indicate the infliction of physical or emotional abuse.

When an elder who is generally alert and cheerful becomes quiet and nervous, or a dementia patient suddenly becomes much more confused or is acting differently, it’s a sign to look deeper.

Warning Signs of Elder Abuse

The warning signs include red flags you may see in an elderly person at home, out in public, or in a facility.

Signs of Neglect

  • Soiled clothing, especially with the smell of urine or feces
  • Head lice
  • Weight loss
  • Symptoms of dehydration, like sunken eyes, dry mouth, and skin that doesn’t “snap back” when gently lifted
  • Dirty hair, nails, or skin
  • Missing or dirty dentures
  • Unsafe living conditions, including fleas, rats, no heating or cooling
  • Bedsores or skin rashes

Signs of Physical Abuse

  • Broken bones
  • Dislocated or swollen joints
  • Marks on the face or head
  • Bruising, skin tears, or other visible marks
  • Fearful behavior
  • Clinging behavior, begging you not to leave
  • Evidence of restraints, such as rope marks on the wrists, neck, chest, or waist
  • Broken eyeglasses or dentures

Signs of Emotional Abuse

  • Fearful or withdrawn behavior
  • Trouble sleeping
  • Rocking, or other repetitive actions
  • Depression or loss of interest in things usually enjoyed

Signs of Sexual Abuse

  • Genital infections
  • Bruising near the genitals, buttocks, or breasts
  • Bleeding from the genitals or rectum

Signs of Financial Exploitation

  • Sudden financial changes
  • Utilities turned off
  • A new “friend” or “sweetheart”
  • Missing items
  • Missing cash
  • Unpaid bills
  • Suspicious change in powers of attorney, car titles, or other legal documents
  • Unusual bank activity, like ATM withdrawals or debit card usage

Reporting Suspicions of Elder Abuse

To cover up abuse, staff members, supervisors, and nursing home administrators can be quick to downplay your concerns about a patient’s mental suffering or play it off as the imaginings of a confused patient.

If you suspect elder abuse, start keeping track of the signs:

  • Write detailed notes about changes in the elderly person’s behavior, clothing, or any other changes that seem “off” to you.
  • Write down the dates and times you see the elderly person.
  • Write down descriptions of any bruises or marks you’ve seen.
  • Take pictures of injuries, if you can.

Favor your loved one’s interpretation of abuse over that of the nursing home staff.

Call 911 if you think an elderly person is in immediate danger.

Don’t hesitate to report abuse. You don’t have to prove that abuse is taking place. That’s up to the professionals. However, your observations can help point law enforcement officials in the right direction for their investigation of the elderly person’s health and welfare.

Helpful Elder Care Resources

The U.S. DOJ Elder Justice Initiative: Provides state level contact information for abuse reporting, transportation assistance, food programs for older adults, elder abuse shelters, and more.

USA.gov Caregiver Support: List and links to federal caregiver resources.

Elder Care Locator: The Eldercare Locator is a nationwide service that connects older Americans and their caregivers with trustworthy local support resources. Just put in your zip code or city and state.

Area Agencies on Aging: A network of over 620 organizations across America servicing local seniors with meal programs, transportation, caregiver support and more.

Meals on Wheels: Delivers meals directly to the elderly at home, to meet nutritional needs and combat social isolation.

The National Directory of Home Modification and Repair Resources: A curated list of local services to help seniors modify their homes for independent living.

Veteran Guide to Long-term Care and Support: A variety of services available to veterans enrolled in the VA health system.

Alzheimer’s Association Programs and Support: Call the Alzheimer’s Association 24/7 Hotline (800.272.3900) anytime to receive reliable information, advice, and support.

National Center of Elder Abuse State Resources Map

State Map of Long-term Care Ombudsman Programs

Nursing Home and Elder Abuse Questions

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>