New Elder Abuse Protection Orders, 0118 ALBJ, 79 The Alabama Lawyer 43 (2018)

AuthorJohn C. Craft, Felicia M. Brooks and Emily T. Marsal
PositionVol. 79 1 Pg. 43

New Elder Abuse Protection Orders

Vol. 79 No. 1 Pg. 43

Alabama Bar Lawyer

January, 2018

John C. Craft, Felicia M. Brooks and Emily T. Marsal 1

Relief for victims of elder abuse and financial exploitation often comes too late. Once the injury has been inflicted and the money has been spent, there is only so much that can be done to repair the damage to the elderly person’s mental, physical and financial health. The Elder Abuse Protection Order and Enforcement Act2 (“EPFA”) provides an early intervention–a targeted civil-court order–to stop the abuse and continued financial exploitation. For elderly victims who cannot protect themselves, others with legal authority can petition to prevent further abuse. Most importantly, though, under the EPFA, elder abuse victims can take action to protect themselves from abuse and financial exploitation, and reclaim control of their lives and finances.

Just as the domestic violence Protection from Abuse Act[3] (“DVPFA”) protects victims of domestic violence by giving them a way to seek court-ordered and court-enforced protection for themselves, the Elder Abuse Protection Order and Enforcement Act is intended to provide maximum protection for victims of elder abuse.4 The EPFA “create[s] a flexible and expeditious method” for elder abuse victims to obtain a protective order against their abuser/exploiter.5 In addition, the EPFA gives law enforcement an additional tool to assist victims and prevent further incidents of abuse.6

Alabama’s Interagency Council for the Prevention of Elder Abuse7 recommended the legislation (SB 274) sponsored by Senators Rodger Smitherman, Bobby Singleton, Priscilla Dunn, Linda Coleman-Madison and William Beasley. After passing both houses unanimously, the bill was approved by Governor Kay Ivey on May 16, 2017 and was effective August 1, 2017. The EPFA sets out the requirements for the sworn petition, the procedure for filing and available court-ordered relief. It creates an enforcement mechanism allowing for arrest and criminal prosecution of a violation of an elder abuse protection order.8 Further, it permits warrantless arrests for violations of elder abuse protection orders in the same circumstances currently allowed for violations of domestic violence protection orders.9

The first part of this article will discuss the particulars of the EPFA. The second part will compare it to existing elder protection laws in Alabama.

Elder Abuse Protection order and enforcement Act (ePFa)

Who can petition for an Elder abuse Protection Order?

First, a petition can be filed by an elderly person in need of protection from elder abuse.10 “Elderly person” is defined as anyone 60 years of age or older.11 So, victims of elder abuse can seek a protective order for themselves. This cannot be emphasized enough.

Elder abuse victims are not likely to self-report to DHR Adult Protective Services, for fear of being deemed vulnerable and in need of “protective placement.” They are also unlikely to pursue criminal charges against their abusers, as they are often people who are close to them. One major study in New York estimated that only one in 24 elder abuse victims was referred to social service, law enforcement or legal authorities.12 An elder abuse protection order provides an option for victims who want to regain control and get their abuser away from them and out of their bank accounts.

Second, a petition can be filed by a legal representative on behalf of an elderly person in need of protection from elder abuse, but only if the elderly person lacks the physical or mental capacity to seek protection for themselves.[13] The following people are authorized to file on behalf of the victim: court-appointed guardian or conservator; court-appointed temporary guardian; agent, co-agent or successor agent under power of attorney; proxy under Advance Directive for Health Care; or an interested person who would have the authority to petition for protective placement/services under the Adult Protective Services Act of 1976 (Ala. Code § 38-9-6).14 If a representative files on behalf of the victim, the following must occur as well: • the representative must swear to the fact of the victim’s physical or mental incapacity;[15]

• the representative must file with the petition a copy of the court order, power of attorney or Advance Directive for Health Care used as the basis for their representative capacity;16 and

• the victim must be served with the petition.17

What qualifies as “elder abuse” for filing the petition?

A petition for an elder abuse protection order must allege that the elderly person is in need of protection from “elder abuse.” “Elder abuse” is defined as the commission of or intent to commit one of the statutorily-proscribed “acts” against an elderly person.18 Many of the predicate elder abuse acts are identical to the acts found in the domestic violence Protection from Abuse Act: arson, assault, criminal coercion, criminal trespass, harassment, kidnapping, menacing, reckless endangerment, sexual abuse, stalking, theft and unlawful imprisonment.19 The difference is that elder abuse protection orders do not require the victim be in a qualifying relationship with the defendant like domestic violence protection orders,20 only that the abuse be against an elderly person (anyone 60 years of age or older). A petition under the DVPFA would b e required to allege that the victim and the defendant who assaulted her are, for example, in a dating relationship. A petition under the EPFA, in contrast, would be required to allege only that the victim of the defendant’s assault is an elderly person; a relationship between the elderly victim and the defendant is not required.

In addition, the Elder Abuse Protection Order and Enforcement Act incorporates into the definition of “elder abuse” many other acts set out in two other Alabama statutes. First, the EPFA’s definition of “elder abuse” includes “abuse” as defined in the Adult Protective Services Act of 1976 (“APS Act”). “Abuse,” as drawn from the APS Act, is defined as the “infliction of physical pain, injury, or the willful deprivation by a caregiver or other person of services necessary to maintain mental and physical health.”21 The APS Act’s definition of abuse contemplates not only the infliction of physical pain or injury, but also the willful deprivation of health-maintaining and basic living necessities. So, in the standard EPFA petition (see Standardized Forms, infra), a petitioner can allege as abuse that the defendant is preventing an elderly person from receiving mental or physical health care, or is depriving them of food, clothing or shelter.

Second, the EPFA’s definition of “elder abuse” also includes “emotional abuse” and “financial exploitation” as defined in the Protecting Alabama’s Elders Act, which is part of the criminal code. There, “emotional abuse” is defined as the “intentional or reckless infliction of emotional or mental anguish or the use of a physical or chemical restraint, medication, or isolation as punishment or as a substitute for treatment or care of any elderly per-son.”22 The standard EPFA petition includes an allegation that the defendant inflicted emotional or mental anguish on an elderly person. The standard form does not include the latter part of the definition of emotional abuse as a specific option, but a petitioner could use the “other” section of the form to make such an allegation.

The definition of “financial exploitation” in the EPFA is likewise drawn from the Protecting Alabama’s Elders Act. “Financial exploitation” is defined as the “use of deception, intimidation, undue influence, force, or threat of force to obtain or exert unauthorized control over an elderly person’s property with the intent to deprive the elderly person of his or her property or the breach of a fiduciary duty to an elderly person by the person’s guardian, conservator, or agent under a power of attorney which results in an unauthorized appropriation, sale, or transfer of the elderly person’s property.”23 Paraphrasing, elder financial exploitation involves some type of fraudulent conduct, or breach of fiduciary duty, as a means to appropriating and misusing an elderly person’s money or property.

In the standard EPFA petition, the predicate financial abuse “acts” are rolled into a single allegation–in layman’s terms–that the defendant “stole” from the elderly person. Attorneys and courts will need to take care to identify which type(s) of financial abuse are being alleged prior to requesting or granting relief. “Theft” as defined in Ala. Code §§ 13A-8-2 thru 13A-8-5 would qualify for relief. In addition, the forms of elder financial exploitation defined in the Protecting Alabama’s Elders Act, Ala Code § 13A-6-191(5), would qualify for relief as well.24

Jurisdiction, venue and relationship to probate courts

The following courts have jurisdiction to issue elder abuse...

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