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ELDER PROTECTION AND ABUSE PREVENTION ACT

FEDERAL DEFINITION OF ELDER ABUSE AND FEDERAL RESPONSE

In these United States it is often that many things are left up to the states for criminal and civil enforcement. While the federal government does have a statute for murder, it is generally only applied to events that occur on federal lands or of federal agents or employees or when the murderer is allegedly motivated by racial animus or something similar. As such, it is not surprising that there is no general federal legal definition of certain acts that are criminal in nature, such as robbery or extortion. On certain matters, which Congress declared of critical importance, the federal government created defitions that it expects states to follow in substantial regards. For example, foster care placement and adoption, is of such critical importance that Congress created a series of laws that defines a host of things, such as abuse and neglect, when foster care is needed, when the state is to move towards adoption and away from working with the parents.

It creates strong incentives for states to adopt these statutes by offering financial backing. In other words, it underwrites a certain program if the state adopts the law that is substantially in line with the federal government model. The same tactic is employed in the fight against elder abuse. Recently three Senators introduced the Elder Protection and Abuse Prevention Act (the Act), which, seeks, in part, to amend the definition of elder abuse found in the Older American’s Act. But this definition was not tied to block grants to states. The first time Congress authorized a block grant to the state for purposes of elder abuse was in 2010 with the Elder Justice Act. More importantly, Congress never appropriated money for the programs that it statutorily authorized and mandated with the Elder Justice Act.

What is so noteworthy about the Act is that it may seem to change the verbiage around in a seemingly meaningless, maybe even superfluous manner, it mirrors a criminal definition of elder abuse from one of the home states of one of the sponsoring Senators. As such, it may be the intention of at least one of the sponsoring attorneys to broaden the definition of elder abuse. More importantly, the language employed in the Act is very similar to the language contained in another federal law on the topic of elder abuse – the Social Security Act. The specific statute in issue, 42 U.S.C. §1397j, allows for block grants to states for adult protective services. Thus, it is presumed that the change in the definition of elder abuse is so that Congress may start to fund block grants to states for their fight against elder abuse.

The same senators attempted to introduce a very similar bill in 2012 but were unsuccessful in having it passed. The stated intent of the bill is to better integrate state’s’ response to elder abuse, defines financial elder abuse (for the first time) and help states incorporate certain best practices activities to help screen the risk factors present in a case.  

 

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