Elder Abuse Defense
Title 16 Chapter 5 Article 8 of the Official Code of Georgia is titled "Protection of Elder Persons." This article establishes certain crimes where the alleged victim is an elder person. In these cases, you typically see enhanced punishment and aggressive prosecution from elected prosecutors who know the political realities of "protecting the elderly." People who regularly work with elderly people need to be aware of all of these crimes to ensure they are never in a position to be falsely accused of a crime.
The context of these crimes vary greatly ranging from violence, to sexual abuse, to theft and fraud. If you are facing charges elder abuse charges you are going to be facing an aggressive prosecution and must be prepared to dig in for a fight. Don't Fight Alone.
Useful Definitions in Understanding Elder Abuse Crimes
- Alzheimer's Disease means a progressive, degenerative disease or condition that attacks the brain and results in impaired memory, thinking, and behavior.
- Dementia means:
- An irreversible global loss of cognitive function causing evident intellectual impairment which always includes memory loss, without alteration of state of consciousness, as diagnosed by a physician, and is severe enough to interfere with work or social activities, or both, and to require at least intermittent care or supervision; or
- The comatose state of an adult resulting from any head injury.
- Disabled Adult means a person 18 years of age or older who is mentally or physically incapacitated or has Alzheimer's disease or dementia.
- Elder Person means a person age 65 or older.
- Essential Services means social, medical, psychiatric, or legal services necessary to safeguard a disabled adult's, elder person's, or resident's rights and resources and to maintain the physical and mental well-being of such person. Such services may include, but not be limited to, the provision of medical care for physical and mental health needs, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, and protection from health and safety hazards.
- Exploit means illegally or improperly using a disabled adult or elder person or that person's resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense, or other similar means for one's own or another person's profit or advantage.
- Long-Term Care Facility means any skilled nursing facility, intermediate care home, assisted living community, community living arrangement, or personal care home subject to regulation and licensure by the Department of Community Health.
- Mentally or Physically Incapacitated means an impairment which substantially affects an individual's ability to:
- Provide personal protection;
- Provide necessities, including but not limited to food, shelter, clothing, medical, or other health care;
- Carry out the activities of daily living; or
- Manage his or her resources.
- Resident means any person who is receiving treatment or care in any long-term care facility.
- Sexual Abuse means the coercion for the purpose of self-gratification by a guardian or other person supervising the welfare or having immediate charge, control, or custody of a disabled adult, elder person, or resident to engage in any of the following conduct:
- Lewd exhibition of the genitals or pubic area of any person;
Flagellation or torture by or upon a person who is unclothed or partially unclothed;
- Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is unclothed or partially clothed unless physical restraint is medically indicated;
- Physical contact in an act of sexual stimulation or gratification with any person's unclothed genitals, pubic area, or buttocks or with a female's nude breasts;
- Defecation or urination for the purpose of sexual stimulation of the viewer; or
- Penetration of the vagina or rectum by any object except when done as part of a recognized medical or nursing procedure.
Neglect of an Elder or Disabled Person or a Resident - O.C.G.A. § 16-5-101
A guardian of an elderly person or someone who has control, custody, or is in charge of caring for an elderly person, disabled person, or resident owes a special duty to that person. If the caregiver purposefully deprives their ward of necessary sustenance to the extent that the ward's well-being is jeopardized can be prosecuted under this code section.
This section does not apply to physicians, hospice care facilities, long-term care facilities and their employees acting in good faith pursuant to a living will, durable power of attorney, advance directive, order not to resuscitate, or the direction of the patient's lawful surrogate.
Additionally, this code section cannot be used to prosecute someone who provides spiritual treatment, in lieu of medical treatment, in accordance with the patient's notarized directions. This is important for people of certain religions who may object to certain medical treatments.
Examples of A Neglect Conviction
Below is a case that was considered by the Georgia Supreme Court. The victim died in 2014, the defendant was convicted and this opinion was rendered in 2017. Take a look at how the law applies to the facts.
The facts outlined below come from a reported Georgia case, Smith v. State, 301 GA. 348 (2017). This involved a caregiver who provided care for several residents. The defendant in this case lived upstairs and provided care for residents who lived in the downstairs portion of the home.
The victim in this case earned benefits from the VA. He was a resident in the downstairs portion of the defendant's home and the VA had arranged for the victim to spend weekdays at an adult daycare facility. It was clear in the agreement that the daycare would be closed on days that Clayton County Schools were closed for inclement weather.
At trial there was much testimony regarding the defendant's care (or lack thereof) for the victim. Witnesses testified that they say the victim outside the home on several times dressed inappropriately for the weather. Further there was testimony that the victim had been seen outside in the summer weather with no water and that 911 had dispatched emergency responders to the home several times. Finally, the driver who would take the victim back and forth to the daycare facility testified that the victim in this case was the only passenger made to wait outside alone in all types of weather.
On January 6, 2014 Clayton County schools were closed and therefore the day care facility was too. On that day a neighbor saw the victim sitting outside in the extreme weather waiting on the bus at about 7:00am. A neighbor told the victim to go inside and the victim indicated that the defendant would not let him inside of the home.
At about 10:00 am the victim was observed lying face down outside of the home, the defendant came outside and saw the victim, but went back inside without helping the victim or seeking assistance.
Later that evening 911 personnel responded, found the body, took the victim to the hospital where he died from hypothermia. He was over 65 years old.
The Law Applied to those Facts
In this case, prosecutors were able to prove the elements of the crime beyond a reasonable doubt. They proved:
- The defendant was the primary caregiver for the victim because he was a resident in her home where she was compensated for caring for him, as well as others.
- The defendant deprived the victim of necessary shelter by failing to allow him in the home on a day where it was freezing outside.
- The victim died of hypothermia and not some other cause, so clearly, the caregiver's refusal to allow the victim in the house jeopardized the victim's well-being.
- The victim was at least 65 years old.
In sum, this case resulted in the death of the elder person, however, death is not an element of the crime. In fact, even if the victim in this case had survived the defendant could have been prosecuted for elder abuse on a neglect theory.
Punishment for Elder Abuse in Georgia
In Georgia the punishment for elder abuse is stout. A conviction on just one count exposes people to decades in prison. The exact range of punishment is one year in prison to 20 years in prison. That prison time may be probated. There is also a $50,000 fine that courts may impose.
Contact J. Ryan Brown Law, LLC Today
If you or someone you love has been charged with elder abuse, then contact us today. Schedule a free consultation with Ryan and let's prepare your defense. Don't Fight Alone.