Developments in State Adult Abuse Laws

The PDF in which this article appears can be dowloaded here: Bifocal Vol. 42 Issue 6.

States continue to target adult abuse statutes in an effort to provide more protection for vulnerable adults. In 2020 and to date in 2021, eight states enacted amendments. Two states, Colorado and West Virginia, made significant changes that broaden the definition of elder abuse and allow for earlier intervention by Adult Protective Services (APS).

Colorado’s statute, effective on September 14, 2020, expanded the state’s definition of abuse. Adding to prior delineated types of abuse, such as physical abuse, exploitation, and caretaker neglect, Colorado added a “harmful act” provision. A harmful act is behavior “not defined as abuse, caretaker neglect, or exploitation but causes harm to the health, safety, or welfare of an at-risk adult.” Provisions like this allow intervention when the act of abuse causes harm, but does not fit neatly into the core definitions of abuse.

Significantly, Colorado’s new statute allows adult protective services to offer services to prevent self-neglect. As defined by the statute, self-neglect is when an adult endangers his or her own “health, safety, welfare, or life by not seeking or obtaining services necessary to meet his or her essential human needs.” The innovation here is allowing APS to offer services for prevention, rather than needing to wait until self-neglect had caused actual harm.

West Virginia’s statute, effective on June 4, 2020, addressed when APS could intervene based on the capacity of the adult. The amendment includes the substitution of “vulnerable adult” for “incapacitated adult” in all relevant provisions. “Incapacitated adults” described those who, by reason of physical or other infirmity, were unable to carry on daily activities necessary to sustain life and reasonable health. In contrast, “vulnerable adults” describes any individual over the age of 18 and any emancipated minor who by reason of physical or mental conditions is unable to carry on such activities. Increasingly states use vulnerability of an adult as criteria for help from APS, or liability under abuse statutes.

West Virginia amended three additional provisions in the statute. First, the amendment modifies the definition of abuse to include psychological harm, including the use of undue influence by a person of trust, close to the vulnerable adult. The prior definition of abuse only encompassed physical pain, injury, or imprisonment. Second, the amendment adds the use of undue influence to the definition of financial exploitation. Third, the amendment expands the definition of neglect beyond the failure of a caregiver to provide care by adding self-neglect and the use of undue influence by a caregiver to cause self-neglect. This is a part of a trend of states codifying undue influence in abuse statutes. Adding self-neglect empowers APS to offer services as appropriate.

The amendments in these two statutes follow recent trends in updates to elder abuse law. 41 states and territories now include a provision for self-neglect, whether as a standalone provision or included within the definition of neglect. Without the inclusion of self-neglect in the definitions, APS is unable to offer help.

In addition, in the past five years, nine states have broadened the definition of elder abuse by including more liquid definitions of harm. For example, in 2019, Iowa added “personal degradation” to the definition of abuse, including “a willful act or statement by a caretaker intended to shame, degrade, humiliate, or otherwise harm the personal dignity of a dependent adult, or where the caretaker knew or reasonably should have known the act or statement would cause shame, degradation, humiliation, or harm to the personal dignity of a reasonable person.” In 2016, Missouri added a provision in elder abuse law to include bullying: “intimidation or harassment that causes a reasonable person to fear for his or her physical safety or property and may consist of physical actions including gestures; cyberbullying, oral, electronic, or written communication; and any threat of retaliation for reporting of such acts.” Both signify an expansion of what counts as abuse. Traditional law largely only includes physical abuse.

The six remaining states used amendments to adjust grammar, syntax, or the provisions of related statutes. For example, Arizona updated a provision of its statute that previously read “nothing in this section means,” to read “this section does not mean.” Several states are modernizing to person first wording.

Amendments to adult abuse statutes reflect the growing awareness of adult abuse and elder justice. Expanding and adding definitions allows APS to respond to a broader array of issues. Including self-neglect empowers APS to offer help or intervene. Recognition of undue influence as a form of abuse, or as a method to perpetrate abuse and exploitation recognizes what was a slightly obscure legal concept as the form of abuse that it really is. The minor amendments modernize outdated wording, fix technical errors in the law, and bring abuse statutes into harmony with evolving criminal and civil law. The fact that those changes are being made reflects awareness of adult abuse as a significant legal and social issue.