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
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
What is it and
What’s the Big Deal?
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
Traditionally it has been …
UNDER – REPORTED
UNDER – INVESTIGATED
Similar to Child Abuse in 80’s & DV in 90’s
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
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
S.B. 12-078 Report
November 30, 2012
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
The annual loss by victims of elder financial abuse is estimated to be at least $2.9 billion dollars.
2001 Pew Report
11% Robbery & Theft from Person
Random Thug / Purse Snatch
54% Theft, ID Theft & Burglary
Kids, Grandkids, Neighbors and Nurses
1% Sex Assault
Caregiver, Family Friend, Maintenance Man
Taking patients meds
Thefts & ID Theft
Home discovers theft
Employee on Resident
Resident on Resident
Hurdles to Prosecution
Traditional Reaction to Financial Abuse:
“It’s Civil. We can’t do anything about it.”
Why Report when Authorities do Nothing?!?
[That’s the myth we need to correct now]
Elder Victims make Poor Witnesses
Can’t prosecute with a Dead Victim
Reluctant and Recanting Victims
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
Colorado’s New Law
Mandatory Reporting of Elder Abuse
Senate Bill 13-111
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
Had Enhanced Crimes Against At-Risk Adults
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
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
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
**All above – whether paid or unpaid
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.
What Else Do I have to do?
Reporter’s job is Simple . . .
Make the Call!!
What is “Abuse” and “Exploitation” under Mandatory Reporting Law?
Definitions . . . .
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
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:
Example: Paying friends or family to clean or do yard work
OR. . .
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.
“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.
Within 24 hours –
Mandatory Reporter Shall File Report with Law Enforcement within 24 hours of Observation or Belief of Abuse
What Police Agency Do I Call?
What Number Do I Call?
Call 911 for:
Call Non-Emergency number for Local Law Enforcement Agency for:
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 reporter knows another person has already reported the same allegation to law enforcement
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
Purpose of Mandatory Reporting Law:
Encourage Reporting &
Stop Elder Abuse!
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
What if I am Wrong?
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)
What happens AFTER the report is made?
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
Will the Police REALLY investigate when in the past they haven’t bothered or don’t seem to care?
Some Examples . . .
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
On routine visit observes bruising not consistent with accidental bumps or medication regimen
What if I DON’T report?
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.
2013 Crimes and Changes
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
A person who:
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.
When withholding, withdrawing, or refusing any service is in accordance with valid medical directive or order or palliative plan
Self-Neglect is not a Crime*
*APS, animal control, code enforcement might be helpful though
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
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”
1° Assault: F3 F2
“Knowingly or Recklessly causing Serious Bodily Injury to an At-Risk Elder by means of a deadly weapon.”
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!
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
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)
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
Keep a record of all receipts, disbursements, and transactions
Preserve estate plan of principal
“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.
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
Training mandatory reporters
Law enforcement program
Financial institutions, medical professionals, etc.
Collaboration / Partnerships
Adult Protective Services
Probate Judge and Staff
Elder Law Lawyers
Elder Abuse List Serve
Challenges of Working With Elders
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
They make GREAT witnesses -
It just takes TIME!
Get on their level if seated or in wheelchair
May have to return the next day
Stress of event
May take several meetings to accomplish purpose
You might be surprised who may be an abuser. . .
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 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.
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.
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
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.
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
Now and continuing after July 1, 2014, you are URGED to report: