Elder neglect means a caregiver's failure to take care of an elder's basic needs, such as failing to provide food, medication or heat when the elder is not fully capable of obtaining those things for herself or failing to provide assistance with daily living activities that the elder can not carry out on her own. Elder neglect is a growing social concern and can sometimes constitute a crime, although specific legal definitions of criminal elder neglect vary in different jurisdictions.
The American Heritage Dictionary defines neglect generally to mean as a failure to care for a person that needs help. In the case of the elderly, the National Research Council Panel to Review Risk and Prevalence of Elder Abuse and Neglect defines "elder mistreatment" as "intentional actions that cause harm." Elder neglect, then, means mistreating an elder by failing to pay attention or failing to care for her.
The crime of neglect arises from the common law principle of negligence: failure to perform a legal duty. Neglect is a common base of criminal charges of child abuse. Parents have a recognized legal duty to attend to their minor child's basic needs, such as adequate food, shelter, clothing, personal hygiene, and to some extent, medical care.
While the duty of a parent towards a minor child is well-established at common law, and has been frequently explicitly codified by state statute, the legal duty of a person towards an elder is not as well established.
Duty of Care
The legal definition of elder neglect as a crime would be the criminal violation of a legal duty of care towards an elder. When an elderly or infirm person is housed in a nursing home or other medical care facility, a legal duty of care is inferred from the fact that the facility provides bedding, food, medication, and assistance with daily living tasks to the elder. The elder is effectively in the facility's custody and control, which gives rise to a legal duty of care at common law. When the elder resides at home or with a relative, that legal duty of care is more difficult to discern without a statute laying out the terms specifically.
According to the American Prosecutor's Research Institute, the crime of elder neglect is defined by the relationship of the person in charge of the elder. If the person charged had a relationship significant enough to be considered a care giver, then that person has a duty of care of a reasonable person towards that elder. Criminal elder neglect, then, is the failure of a caregiver to provide that elder with the care that a reasonable person would have provided under the same circumstances.
States are increasingly adopting statutes that define the crime of elder neglect, as well as other aspects of elder abuse. These statutes vary widely in their definitions and effects. The Wisconsin statute, for example, protects elders over age 62, while the District of Columbia statute enhances penalties for crimes on persons over age 60. Colorado statutes protect "at-risk adults," which could include persons with illnesses or disabilities and not just those over a certain age.
- Photo Credit Cindy Hill
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