Elder abuse can happen to anyone—even in the nursing home. Between 4% and 10% of older people aged 65 and older experience at least one act of elderly abuse each year, and over 3 million people in the U.S. experience some form of abuse or neglect while living in nursing homes.
With medical costs as a result of abuse totaling over $5 billion USD per year, and financial exploitation amounting to over $2.9 billion dollars in losses, nursing home residents often need to seek legal counsel in order to receive proper compensation.
Nursing Home Lawsuits
If government agencies don’t take proper action in order to resolve issues of abuse or improper care, families may need to seek out legal recourse.
Legal assistance can be provided from a variety of sources, including private attorneys, local or state-operated bar associations, or government-subsidized legal aid programs for seniors.
These attorneys can help nursing home residents determine the proper course of action with respect to filing lawsuits in order to hold perpetrators of abuse or fraud accountable for their actions.
Elder abuse lawsuits and legal inquiries can look to amend a wide variety of acts, including:
- Prosecution of offenders or abusers who committed criminal acts
- Restraining orders put in place to protect victims of assault from their assailants
- Lawsuits to recover stolen assets and property, either by nursing home attendants or friends and family members with access to the senior’s finances
- Annulments of sham marriages that were arranged purely with the purpose of acquiring the victim’s wealth
- Court-appointed guardianship, where courts can assign decision-making responsibility to a person or agency to act on behalf of individuals who are unable to act in their own interests, either due to physical or cognitive deficiencies. This can involve taking guardianship away from an abusive friend or family member.
Statute of Limitations
Lawsuits in nursing home abuse cases are subject to a statute of limitations. Statutes of limitations determine the amount of time one has to commence legal proceedings once the offense has been committed.
These time periods, or statutes of limitations, vary state by state. Some range from as little as 1 year and some provide as much time as 6 years. On average, most states set their statutes of limitations on nursing home abuse at between 2 and 3 years.
Unfortunately, once the timeframe of the statute of limitations has expired, it isn’t possible to resolve it in court. Therefore, the statute of limitations is always a factor when determining whether to file a lawsuit whether it be civil or criminal.
National and State Laws
There are various laws, both federal and state level, that protect the rights of the elderly and nursing home residents. These laws are critical in keeping elderly people safe and in holding nursing homes accountable to a high standard of care.
The primary national law that protects nursing home residents is called the Nursing Home Reform Act of 1987. Medicare, Medicaid, the Veterans Administration, Older Americans Act, the Long-Term Care Ombudsman Program, and Adult Protective Services are all programs and divisions designed to protect the rights of senior citizens including their access to healthcare and funding, and their residency in nursing homes.
Each individual state also has their own laws that determine how to protect the rights of the elderly and those residing in nursing homes.
Administration of Aging Legal Assistance
In order to ensure that all elderly Americans are able to receive an adequate level of care, the Older Americans Act was instituted in 1965. As part of this act, elder Americans were given the right to access a network of free legal services in order to protect their quality of life and well-being.
The Administration of Aging, part of the U.S. Department of Health and Human Services, offers legal assistance under Title III-B Provisions of the Older Americans Act. These legal services are essential for older people living in long-term care that see direct challenges to their rights to independence and financial security. These services are typically targeted towards individuals with pressing economic or social needs.
With over 1,000 service providers nationwide, Older Americans Act-funded legal services account for over 1 million hours of service every year. This includes legal assistance to help older people access public benefits, designate surrogate decision makers, access housing, secure financing options, and take legal actions in response to fraud or abuse.
National Academy of Elder Law Attorneys
The National Academy of Elder Law Attorneys (NAELA) is another advocacy group that strives to improve the legal services available to senior citizens as they age. While the NAELA does not directly provide legal services, they are made up of a number of members who do.
Made up of judges, law professors, law students, and volunteers, the NAELA seeks to educate law firms and lawyers across the country on Elder Law. The NAELA provides several education programs and educational materials that help contribute to a culture of better legal standing for elderly Americans.
The NAELA also takes a role in forming public policy, advocating on behalf of those with special needs related to old age. They also assist older Americans in seeking appropriate legal counsel for their unique needs.
How to Choose an Attorney or a Law Firm
Not all lawyers are created equal. As legal fees can be expensive, you want to make sure you hire a lawyer that can actually provide you with the support you need in your nursing home. In most cases, it’s recommended to contact your local ombudsman who will help you seek appropriate legal representation. Your nursing home staff can often connect you with your ombudsman.
It’s important to ask the right questions of any potential lawyer before hiring their services. Before an initial consultation, call or email your potential lawyer or law firm to find out the following facts:
- How long has the lawyer or law firm been in practice?
- Does the practice have a particular focus on Elder Law?
- What percentage of their time is spent focusing on Elder Law or special needs law vs. other specialties?
- What are their fees for an initial consultation, and what information is required?
If you decide to undergo an initial consultation, take the opportunity to learn as much as you can about how your case would be handled. Once you’ve explained your case, find out what actions would be taken on your behalf. What are the alternative courses of action? What would be the pros and cons, risk and rewards, and advantages and disadvantages of all possible courses of action?
Discover who would be handling the case and whether or not that specific attorney has Elder Law experience. Who would be assisting them with the case? Would they be handling a trial if necessary?
Most importantly, be sure to learn how fees would be assessed. Some law firms charge weekly, others charge monthly, and others charge at the end of the case. Ensure there will be no sudden surprises, and make sure you have written proof of all terms of your legal representation, and that all communication is open and clear.
- National Committee for the Prevention of Elder Abuse, Virginia Tech, MetLife Mature Market Institute (2011). The MetLife study of elder financial abuse: Crimes of occasion, desperation and predation against America’s elders. Westport, CT: Authors.