Understanding Legal Options and Protections Available for Victims of Elder Abuse

By: Dana Walsh Sivak

NOTE: This article is PART 4 of our Elder Abuse Awareness series published in recognition of Elder Abuse Awareness Day. Visit our blog to read our other articles in this important series.  

When elder abuse or neglect is discovered, it can be difficult to know what to do next – and understanding the robust legal tools that are available to protect older adults from continued harm by elder abusers can empower victims and their loved ones to put a stop to elder abuse and stop it from recurring.

What Legal Authorities Can Assist in Investigating Elder Abuse?

There are several legal authorities who can assist in investigating elder abuse, and potentially bring criminal charges against those who abuse an elderly person, including local police departments and District Attorney’s Offices. Most of these agencies have dedicated units that work specifically to combat elder abuse, and have specialized training and experience to help prosecute these crimes, and provide supportive services to victims of elder abuse.

What Actions Can Be Taken to Protect Elder Abuse Victims? 

Our legal system recognizes that elderly people are particularly vulnerable to abuse and exploitation, and under the New York Penal Law, certain crimes – including endangering the welfare of a vulnerable elderly person, grand larceny, identity theft, and assault – carry enhanced penalties when the victim is an older adult. Prosecutors can pursue criminal charges against caregivers, family members, facility staff, and outside actors who abuse, neglect, or financially exploit older New Yorkers, and can obtain criminal Orders of Protection that impose criminal penalties, including arrest, if violated by the abuser.

In addition to criminal charges, there are other forms of legal redress and protections that elder abuse victims and their families can seek through state civil courts. These include orders of protection, which can be obtained through Family Court or the Supreme Court to keep an abuser away from the older adult and their home.

In certain circumstances, a guardianship proceeding under the Mental Hygiene Law can be brought, on an emergency basis, to request the urgent intervention of the Court in order to stop abusive behavior from continuing. As these guardianship cases are considered emergency proceedings, judges overseeing these cases have the authority to impose a range of restrictive measures, including temporary restraining orders, orders which restrict access to financial accounts, temporary guardian appointments, and relocation orders that can be implemented quickly to prevent further harm to the elderly victim. In addition to appointing a Guardian to make personal and financial decisions for an elder abuse victim, and revoking or suspending advance directives, such as a Power of Attorney or Health Care Proxy, empowering the abuser, the Court also has the ability to issue an order to “claw back” assets diverted by an exploitative party.

Civil lawsuits can also be brought to recover stolen assets, undo fraudulent transfers of property, set aside deeds or wills procured by fraud or undue influence, and obtain damages from nursing homes or assisted living facilities that failed to provide adequate care.

Powers of attorney, health care proxies, revocable trusts, and updated estate planning documents can also be revoked, amended, or restructured to cut off an abuser's access and put trusted decision-makers in place. Federal protections – including the Elder Justice Act, the Older Americans Act, and federal nursing home reform laws – supplement state remedies, and give regulators additional tools to investigate facilities and prosecute fraud schemes that target older adults.

The best way you can develop a comprehensive understanding of all of the legal tools and protections available to address a situation involving elder abuse is to meet with an elder law attorney to confidentially discuss your concerns, and explore legal options available to you.

NOTE: This Elder Abuse Awareness series is published in honor of World Elder Abuse Awareness Day, recognized on June 15th each year to raise awareness about the abuse, neglect, and financial exploitation of older adults.  If you suspect that a loved one is being abused, neglected, or exploited, do not wait for the situation to escalate.   The Elder Law Practice Group at Falcon Rappaport & Berkman helps families across New York protect older adults, hold wrongdoers accountable, and put long-term safeguards in place. Contact us today to schedule a confidential consultation and take the first step toward protecting the older adult you love.  Please visit our blog to read the other articles in this series:

PART 1: Why Older Adults are Vulnerable to Abuse – and Why it Often Goes Undetected

PART 2: What are the “Warning Signs” of Elder Abuse?

PART 3: “If You See Something, Say Something” – Immediate Steps to Take If You Suspect Elder Abuse or Neglect

PART 4: Understanding Legal Options and Protections Available for Victims of Elder Abuse  

PART 5: How an Elder Law Attorney Can Help Protect Victims of Elder Abuse or Neglect (And Why We Do This Work)

DISCLAIMER: This summary is not legal advice and does not create any attorney-client relationship. This summary does not provide a definitive legal opinion for any factual situation. Before the firm can provide legal advice or opinion to any person or entity, the specific facts at issue must be reviewed by the firm. Before an attorney-client relationship is formed, the firm must have a signed engagement letter with a client setting forth the Firm’s scope and terms of representation. The information contained herein is based upon the law at the time of publication.