Elder abuse colorado s new mandatory reporting law
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Elder Abuse & Colorado’s New Mandatory Reporting Law . What does this mean for you?. 1 st JD Elder Abuse Unit Jefferson & Gilpin Counties Scott Storey – Senior Chief Candace Werth – Prosecutor. Colorado DHS APS Fonda Barkofske Program Specialist. Elder Abuse:. What is it and

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Elder abuse colorado s new mandatory reporting law

Elder Abuse & Colorado’s New Mandatory Reporting Law

What does this mean for you?

1st JD Elder Abuse Unit

Jefferson & Gilpin Counties

Scott Storey – Senior Chief Candace Werth – Prosecutor

Colorado DHS APS

Fonda Barkofske

Program Specialist


Elder abuse

Elder Abuse:

What is it and

What’s the Big Deal?


Elder abuse can be

Elder Abuse can be…

Physical, Financial, Sexual Abuse or Neglect

Different Types of Abuse go Hand-in-Hand

A Victim that is Financially Exploited may also be Sexually or Physically Assaulted

A Neglect Victim may also be Financially Abused


Elder abuse can be1

Elder Abuse can be…

Traditionally it has been …

UNDER – REPORTED

UNDER – INVESTIGATED

SELDOM PROSECUTED

Similar to Child Abuse in 80’s & DV in 90’s


Why elders

Why Elders?


Elder adults

Elder Adults

Vulnerable Population

May Rely on Others

Help with ADL (activities of daily living)

Help with bills, conducting business, errands

Burden of care can lead to Neglect

Stress can lead to Physical Assaults

Financial Assets


Family caregiver stress

Family Caregiver Stress

80% of Alzheimers and Dementia care in the home is provided by family members

61% Caregivers rated stress as high or very high

33% reported symptoms of Depression

56% reported strain regarding finances

53% reported strain in family relationships

2012 Alzheimer’s Disease Facts and Figures; Alzheimer’s Association


Colorado is growing and aging

Colorado is Growing and Aging

  • Total State Population grew 17% from 2000-2010

  • Persons age 70 years and over will increase 28% by 2017

  • Persons age 70 years and over will increase 142% by 2032

S.B. 12-078 Report

November 30, 2012


Elder abuse colorado s new mandatory reporting law

The Number of People that live to 90 and beyond has tripled in the past three decades

The Number of People that are 65 years old or older is 40 million (13% of our population and growing)

One in 10 older Americans experience abuse – many in multiple forms.

70-90% of the Perpetrators of Elder Abuse are family members, loved ones or caregivers

Source: AgelessAlliance.org


Facts

Facts:

The annual loss by victims of elder financial abuse is estimated to be at least $2.9 billion dollars.


Silver tsunami

“Silver Tsunami”

2001 Pew Report


Jeffco s elder abuse unit

Jeffco’s Elder Abuse Unit


2012 caseload breakdown

2012 Caseload Breakdown


Types of elder abuse cases 2012

Types of Elder Abuse Cases – 2012

11% Robbery & Theft from Person

Random Thug / Purse Snatch

54% Theft, ID Theft & Burglary

Kids, Grandkids, Neighbors and Nurses

34% Assault

Drunken Son

1% Sex Assault

Caregiver, Family Friend, Maintenance Man


Assisted living nursing home cases

Assisted Living & Nursing Home Cases

Drug Diversion

Taking patients meds

Thefts & ID Theft

POA Fraud

Home discovers theft

Neglect

Sexual Assault

Employee on Resident

Resident on Resident


Elders are today s forgotten victims

Elders are Today’s Forgotten Victims


Hurdles to prosecution

Hurdles to Prosecution


Elder abuse colorado s new mandatory reporting law

Traditional Reaction to Financial Abuse:

“It’s Civil. We can’t do anything about it.”


Why report when authorities do nothing

Why Report when Authorities do Nothing?!?

[That’s the myth we need to correct now]


Myths

Elder Victims make Poor Witnesses

Can’t prosecute with a Dead Victim

Reluctant and Recanting Victims

Appears Civil

Not a crime if the Victim was reimbursed

Not a crime if the Victim was aware or gave consent

Grandma vs. Gangbanger

Hello – Murder Cases. We do it all the time

Nothing new -> DV Cases

Don’t Assume – Dig Deeper

Theft involves your Intent when you take it

Undue Influence negates consent

Myths


Colorado s new law

Colorado’s New Law

Mandatory Reporting of Elder Abuse

Senate Bill 13-111


Mandatory reporting of elder abuse

Mandatory Reporting of Elder Abuse

Colorado: 1 of only 3 states that didn’t require those that work with Elders to Report Abuse

Law Signed 5/16/13

Training began January 2014

Reporting becomes mandatory July 1, 2014


Previously

Previously…

Had Enhanced Crimes Against At-Risk Adults

C.R.S. §18-6.5-103

At-Risk Adult was ≥ 60 yoa

Had Urged Reporting under Title 26

Reporters are ‘urged’ to report abuse including self neglect

Now SB 13-111 created…

Addition Crimes & Mandatory Reporting of Elder Abuse

C.R.S. §18-6.5-108:

Those who Work with the At-Risk Elder Population Must Report Known or Suspected Abuse AND

Law Enforcement MUST Investigate when Appropriate

At-Risk Adult and At-Risk Elder ≥ 70 yoa


Mandatory reporting

Mandatory Reporting

  • Who are reporters?

  • What needs to be reported?

  • What are the responsibilities of law enforcement?


Mandatory reporters who

Mandatory ReportersWho?

Medical professionals including

Doctors, Nurses, Chiropractors, Pharmacists, Dentists, Medical Examiners & Coroners

Law enforcement officials and personnel

Fire protection & EMS

Hospitals & Care facilities

Home care placement agency

Court-appointed guardians and conservators

Community-centered board staff

Psychologists & Mental Health professional

Social work practitioners

Clergy

Financial institutions

**All above – whether paid or unpaid


Mandatory reporters what

Mandatory ReportersWhat?

Any person who has observed abuse or exploitation of an at-risk elder, or who has reasonable cause to believe that an at-risk elder has been abused or has been exploited or is at imminent risk of abuse or exploitation, shall report such fact to a law enforcement agency not more than 24 hours after making the observation or discovery.


Lingering questions

Lingering Questions:

What Else Do I have to do?


Reporters duties

Reporters Duties:

  • Report known or suspected abuse or exploitation to Law Enforcement

  • within 24 hours

  • That’s it!

    • Reporters do not investigate

    • Reporters do not locate evidence

    • Reporters do not interview witnesses


Reporter s job is simple

Reporter’s job is Simple . . .

Make the Call!!


What is abuse and exploitation under mandatory reporting law

What is “Abuse” and “Exploitation” under Mandatory Reporting Law?

Definitions . . . .


Abuse

Abuse:

C.R.S. §18-6.5-102(1)

Non-accidental bodily injury, SBI or death

Confinement or restraint that is unreasonable under generally accepted caretaking standards

Subject to sexual conduct or contact classified as a crime

Caretaker neglect


Exploitation

Exploitation:

C.R.S. §18-6.5-102(10)

Use of deception, harassment, intimidation or undue influence to permanently or temporarily deprive an at-risk elder of the use, benefit or possession of his/her money, assets or property,

OR. . .

Without legal authority:

  • Hires a third party for the profit or advantage of the person or another person to the detriment of the at-risk,

    Example: Paying friends or family to clean or do yard work

    OR. . .


Exploitation1

Exploitation:

Without legal authority:

Forces, compels, coerces or entices an at-risk elder to perform services for the profit or advantage of the person or another person against the will of the at-risk elder, OR . . .

Example: Childcare, house cleaning, etc.

Misuse property of at-risk elder in manner that adversely affects the at-risk elder’s ability to receive health care or health care benefits or to pay bills for basic needs and obligations

Example: Takes money or assets (with or without permission) and Elder cannot qualify for Medicaid or other assistance.

C.R.S. §18-6.5-102(10)


Exploitation2

Exploitation

“Exploitation” is not a separate crime but it may be theft, extortion or other crime.

Exploitation must be reported to Law Enforcement.

Investigation needed because it might lead to criminal charges.


Mandatory reporting requirements

Mandatory Reporting Requirements

Within 24 hours –

Mandatory Reporter Shall File Report with Law Enforcement within 24 hours of Observation or Belief of Abuse

C.R.S. §18-6.5-108(1)(a)


Lingering questions1

Lingering Questions:

What Police Agency Do I Call?

What Number Do I Call?


To whom do you report

To Whom do you Report?

  • Report should be made in Jurisdiction where Suspected Abuse or Exploitation Occurred

  • If it is unknown where it occurred then call your local law enforcement agency


Elder abuse colorado s new mandatory reporting law

Call 911 for:

  • “In Progress” abuse

  • or involved parties are on scene

    Call Non-Emergency number for Local Law Enforcement Agency for:

  • Abuse discovered or suspected that is not imminent

  • “Cold Calls” or if abuse occurred previously

  • No Immediate Danger


Elder abuse colorado s new mandatory reporting law

You may be referred to another jurisdiction when it is appropriate.

If so, you will need to make report to that agency to fulfill the Mandatory Reporting Requirements.


Mandatory reporting1

Mandatory Reporting

Exception –

Mandatory reporter knows another person has already reported the same allegation to law enforcement

C.R.S. §18-6.5-108(d)


Law enforcement needs

Law Enforcement Needs:

Name, Address, and Contact Info of

the At-Risk Elder

the person making the report

the at-risk elder’s caretaker, if any

Name of the Alleged Perpetrator

Nature and Extent of the Condition that Required the Report to be Made

Any other Pertinent Information

C.R.S. §18-6.5-108(2)(a)


Purpose of mandatory reporting law

Purpose of Mandatory Reporting Law:

Encourage Reporting &

Stop Elder Abuse!


Remember

Remember…

Report MUST be made to Law Enforcement

Reporting based on licensing requirements (Board of Nursing, Board of Health, etc.) is not sufficient.

You can’t report to APS and have them call Law Enforcement


Lingering questions2

Lingering Questions:

What if I am Wrong?


Immunity

Immunity

If the Report is Made in Good Faith

– Reporter is Immune from suit and liability for damages in any civil action or criminal prosecution*

*Exception – No Immunity for Perpetrator even if Perpetrator Reports the Abuse

Reporting duty does not create a civil duty of care or establish a civil standard of care that is owed to an at-risk elder

C.R.S. §18-6.5-108(2)(c)(3), (4), (5)


Lingering questions3

Lingering Questions:

What happens AFTER the report is made?


Law enforcement responsibilities

Law Enforcement Responsibilities

Within 24 hours – L.E. shall notify Human Services agency and District Attorney’s Office of report (where alleged abuse/exploitation occurred)

L.E. shall complete investigation when appropriate

L.E. shall provide summary report of the investigation to appropriate Human Services agency and District Attorney’s Office

C.R.S. §18-6.5-108(2)(b)


Lingering questions4

Lingering Questions:

Will the Police REALLY investigate when in the past they haven’t bothered or don’t seem to care?


Learning curve

Learning Curve . . .

  • WE ARE ALL LEARNING

  • The system won’t be Perfect Right Away

    • Some Jurisdictions Ahead of Others

    • Some Jurisdictions Not Yet Up-To-Speed

  • Training needed for Prosecutors, Police, Reporters

  • Be Patient and Persistent

  • Together – We can make the Change


Some examples

Some Examples . . .


Examples

Examples

Bank Teller

Person exerting influence to get Elder to withdraw money, change beneficiary or add POA

Observes Elder with bruises and appears to be victim of an assault

Health Care Worker

Believes a co-worker stole from a resident because wallet or jewelry missing and no one else had access

Observes a resident sexually assault another resident

Doctor

On routine visit observes bruising not consistent with accidental bumps or medication regimen


Lingering questions5

Lingering Questions:

What if I DON’T report?


Failing to report penalties

Failing to Report - Penalties

Willfully Failing to Report Known or Suspected Elder Abuse

Class 3 Misdemeanor

Up to $750 Fine

Up to 6 months in Jail

GOAL: Encourage reporting NOT prosecute those that fail to report.

C.R.S. §18-6.5-108(c)


Elder abuse colorado s new mandatory reporting law

  • Knowingly Filing a False Report

    • Class 3 Misdemeanor

    • Up to $750 Fine

    • Up to 6 months in Jail


2013 crimes and changes

2013 Crimes and Changes


Charges

Charges:

Caretaker Neglect, M1

knowingly commits Caretaker Neglect

Crimes Against At-Risk Elder, M1

knowingly acts in a manner likely to be injurious to the physical or mental welfare of an At-Risk Elder

C.R.S. §18-6.5-103(6)


Caretaker

Caretaker:

C.R.S. §18-6.5-102(5)

A person who:

  • Is Responsible for the care of Elder as a result of a Family or Legal Relationship, OR

  • Has Assumed Responsibility for Elder, OR

  • Is Paid to Provide Care or Services to an At Risk Elder


Caretaker neglect

Caretaker Neglect:

C.R.S. §18-6.5-102(6)

When adequate food, clothing, shelter, physical care, psychological care, medical care, or supervision is not provided in a timely manner and with the degree of care that a reasonable person in the same situation would exercise.


Exception

Exception:

When withholding, withdrawing, or refusing any service is in accordance with valid medical directive or order or palliative plan


Elder abuse colorado s new mandatory reporting law

Self-Neglect is not a Crime*

*APS, animal control, code enforcement might be helpful though


Types of physical abuse

Types of Physical Abuse

  • “Traditional”

    • Hitting, slapping, etc

  • Overmedicating

  • Force-feeding

  • Restraining

  • Smothering


If victim is at risk elder

If Victim is At-Risk Elder:

3° Assault: M1  F6

“Knowingly or Recklessly causing Bodily Injury to an At-Risk Elder”

No actual Injury, Bruising or Marks Required

Physical Pain is sufficient

C.R.S. §18-6.5-103(3)(c)

2° Assault: F4  F3

“knowingly or recklessly causing Serious Bodily Injury to an At-Risk Elder”

“Knowingly or recklessly causing Bodily Injury to an At-Risk Elder by means of a deadly weapon”

C.R.S. §18-6.5-103(3)(b)

1° Assault: F3  F2

“Knowingly or Recklessly causing Serious Bodily Injury to an At-Risk Elder by means of a deadly weapon.”

C.R.S. §18-6.5-103(3)(a)


We are telling the police to stop asking

We are Telling the Police to STOP ASKING…

Victims in Colorado don’t have to ‘sign a complaint’

Victims in Colorado don’t have to sign a commitment to prosecute

Victims don’t bring the cases

Victims don’t have to agree with or support the charges

STOP ASKING THEM IF THEY WANT TO PROSECUTE

STOP ASKING IF THEY WANT THE SUSPECT ARRESTED

Please, Don’t put that pressure on them!


Elder abuse colorado s new mandatory reporting law

We don’t ask a Victim of DUI crash if she wants to Prosecute

We don’t ask a Bank Teller if he wants the Robber Prosecuted

Stop asking Elder Victims. It makes them feel responsible and have guilt over charges


Senate bill 14 98 effective 4 7 14

Senate Bill 14-98, Effective 4/7/14

Criminal Exploitation of an At-Risk Elder:

Knowingly using deception, harassment, intimidation or undue influence to permanently or temporarily deprive an at-risk elder of the use, benefit, or possession of anything of value.

F3 if ≥ $500

F5 if < $500

C.R.S. §18-6.5-403 (7.5)

“Undue Influence” means the use of influence to take advantage of the at-risk Elder’s vulnerable state of mind, neediness, pain or emotional distress.

C.R.S. 18-6.5-102 (13)


Uniform power of attorney act

Uniform Power of Attorney Act

Duties of an Agent. C.R.S.§15-14-714

Act in accordance with principal’s expectations

Avoid conflicts of interest

Act with care, competence and diligence

Act in good faith

Act within scope of POA

Act loyally

Keep a record of all receipts, disbursements, and transactions

Preserve estate plan of principal


Poa specific grants of authority

POA – specific grants of authority

“Hot powers” – agent CANNOT do the following without a specific grant of authority from principal for the following transactions:

Create, amend, revoke a trust

Make a gift

Create or change beneficiary designations

Non-family member cannot create an interest in the principal’s property for self or others.

C.R.S. §15-14-724


Elder abuse colorado s new mandatory reporting law

Having Legal Access to the Money doesn’t mean it is NOT a crime.

Access doesn’t make it Civil!

POA Commits Theft when they convert asserts or money for their own use

Child commits Theft when they unduly influence Elder into signing over Deed to the house


Elder abuse colorado s new mandatory reporting law

Training mandatory reporters

Law enforcement program

Financial institutions, medical professionals, etc.


Post jeffco training task force

POST/Jeffco Training Task Force

  • Created 4 hour POST Training

  • Explain Elder Abuse & Mandatory Reporting

  • Each department and Sheriff’s Office must have AT LEAST ONE officer trained

  • Training began January 2014.


Elder abuse colorado s new mandatory reporting law

Collaboration / Partnerships

Law Enforcement

Adult Protective Services

Probate Judge and Staff

Elder Law Lawyers

Forensic Accountants

Elder Abuse List Serve


Challenges of working with elders

Challenges of Working With Elders


Reluctant victims

Reluctant Victims

Victims might:

  • Recant statement

  • Withhold information

  • Protect abuser rather than focus on personal safety

  • Leave an abuser only to return later

  • Not follow through on an investigation

  • Not take advice from law enforcement


Victim fears

Victim Fears:

Sending Perp

to Prison

Losing

Decision-

Making

Court

Process

RELUCTANCE

TO

PROSECUTE

Losing

Family

Embarrassed

Ashamed

Losing

Independence


Victim with diminished capacity

Victim with Diminished Capacity

Cognitive Defects do not mean a lack of capacity

Victim may still be able to testify

Work with the Victim

Short, focused sentences

Surround Victim with Corroborating Evidence

Show Vulnerability

They make GREAT witnesses -

It just takes TIME!


Working with elder victims

Working with Elder Victims

Talk slower

Get on their level if seated or in wheelchair

Be Patient

May have to return the next day

Stress of event

Sundowning

Dehydration

May take several meetings to accomplish purpose


You might be surprised who may be an abuser

You might be surprised who may be an abuser. . .


Impact of mandatory reporting

Impact of Mandatory Reporting

  • FOCUS: Individuals who work with a vulnerable population are required to report any type of witnessed or suspected abuse

  • TRAINING: Every law enforcement agency must have at least one person trained by POST standards regarding Elder Abuse

  • IMPACT: Criminal filings will increase

  • PURPOSE: Intent is to compel reporting not prosecute people for failing to report


What is the role of aps

What is the Role of APS?

Title 26-Human Services Codes

Helps at-risk adults when they are unable to meet their own needs and are victims of mistreatment.

Investigate reports of alleged mistreatment.

Offers protective services for at-risk adults who have been mistreated.

Collaborates with law enforcement, the District Attorney, and other community partners to help protect at-risk adults.


Aps will continue as usual

APS will continue as usual.

APS will continue to take reports of mistreatment and self-neglect of at-risk adults.

The same group of professionals who are required to report mistreatment of at-risk elders are urged to report mistreatment and self-neglect of at-risk adults.

Anyone can and should report suspected abuse or neglect to APS or law enforcement.


At risk adults

At-Risk Adults

Title 26-3.1-101

87


Examples of at risk adults

Examples of at-risk adults

88


Examples of adults who are not at risk adults

Examples of adults who are NOT “at risk adults”

89


Self neglect

Self-Neglect

Self-Neglect is NOT a crime

Self-neglect occurs when an at-risk adult endangers his/her health, safety, welfare, or life by not getting the services they need to meet their basic human needs.


Examples and signs of self neglect

Examples and Signs of Self-Neglect


Elder abuse colorado s new mandatory reporting law

APS Priorities

92


Right to refuse services

Right to Refuse Services

At-risk adults have the right to make lifestyle choices that others may see as objectionable or even dangerous, including:

Refusing medical treatment or medication

Choosing to abuse alcohol or drugs

Living in a dirty or cluttered home

Continuing to live with the perpetrator

Keeping large numbers of pets, or

Engaging in other behaviors that may not be safe

93


Making a report to aps

Making a Report to APS

Have as much information as possible about the at-risk adult, the perpetrator and what is concerning you. APS will need the following information:

Name and address of the at-risk adult.

A description of the alleged mistreatment and the situation; what did you observe?

What is the nature and extent of the injury?

Who is the alleged perpetrator; name and address if possible.

Any other information that you feel is relevant.

94


What happens after i make a report

What Happens After I Make a Report?

APS will screen the report and determine the appropriate response.

The report may be shared with law enforcement.

APS will take appropriate action, which may include an investigation.

APS may request a joint investigation with law enforcement or another agency.

APS may offer protective services to the at-risk adult

95


Beginning july 1 2014 you must report

Beginning July 1, 2014, you MUST report:

Now and continuing after July 1, 2014, you are URGED to report:

96


Our goal

Our Goal…


Thank you

THANK YOU!


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