Legal Remedies and Victim Services Guide

Office on Violence Against Women Niagara County Project On Elder Abuse and Maltreatment

legal remedies and Victim Services Guide This project was supported by Grant No. 15JOVW-21-GK00036ALLX awarded by the Office on Violence against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence against Women.

This guide was compiled in cooperation with the following agencies:

The Center for Elder Law and Justice www.elderjusticeny.org

The District Attorney’s Office of Niagara County www.niagaracounty.com/departments/af/district_attorney/index.php

The Niagara County Sherriff’s Office www.niagarasheriff.com

The Niagara County Office for Aging: www.niagaracounty.com/depart ments/a-f/aging/index.php

Niagara County Office of Adult Protective Services https://www.niagaracounty.com/departments/s -z/social_services/adult_services.php

Pinnacle Community Services www.pinnaclecs.org

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Table of Contents: THE PURPOSE OF THIS DOCUMENT IS TO PROVIDE LAW ENFORCEMENT OFFICERS WITH INFORMATION AND STRATEGIES TO MORE EFFECTIVELY RECOGNIZE AND INVESTIGATE ELDER ABUSE CASES

Important Things to Remember....................................................4 List of Terms/ Definitions...........................5 Description of Victims.................................6 Role of Adult Protective Services...............6 List of Crimes in Relation to Elder Abuse...........................................................8 Community Resources..............................12 3

Important things to Remember: 1) Assess for safety.

2) Talk in a slow and calm manner at eye level.

2) Confusion or forgetting while telling/responding to a story can be a sign of trauma and not of dementia.

3) Separate victims from suspect(s).

4) Look for adequate food, clean clothing, personal hygiene of adult, check locks/safety of doors, other environmental factors, and appropriate room temperature.

5) When asked directly if abused or mistreated, most older adults will say no.

6) Document findings.

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Definitions of Adult Abuse, Neglect and Financial Exploitation: Cases from the following definitions are reportable to Adult Protective Services.

The following definitions are from New York State Social Services Law Section 473:

Physical Abuse Non-accidental use of force that results in bodily injury, pain, or impairment. This includes, but is not limited to, being slapped, burned, cut, bruised, or improperly physically restrained.

Sexual Abuse Non-consensual sexual contact of any kind. This includes, but is not limited to, forcing sexual contact with self or forcing sexual contact with another person.

Emotional Abuse Willful infliction of mental or emotional anguish by threat, humiliation, intimidation or other abusive conduct. This includes, but is not limited to, isolating or frightening an adult.

Financial Exploitation Improper use of an adult’s funds, property, or resources by another individual. This includes, but is not limited to, fraud, embezzlement, forgery, falsifying records, coerced property transfers, or denial of access to assets.

Active and Passive Neglect Active neglect is the willful failure by a caregiver to fulfill care-taking functions and responsibilities. This includes, but is not limited to, abandonment, deprivation of food, medication, water, heat, cleanliness, eyeglasses, dentures, or health-related services. Passive neglect is the non-willful failure to fulfill care-taking responsibilities because of inadequate caregiver knowledge, infirmity, or disputing the value of prescribed services.

Self-Neglect This is the adult’s inability, due to physical and/or mental impairments, to perform tasks essential to caring for oneself.

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Description of victims as defined by Adult Protective Services of Niagara County *18 years of age or older *Have a physical or mental impairment *In need of protection from actual or threatened harm due to an inability to meet essential needs for food, clothing, shelter or medical care; to secure entitlements; or to protect from physical, sexual or emotional abuse, selfneglect, or financial exploitation and *Have no one available who is willing and able to assist responsibly.

70% of referrals in Niagara County last year were above 60 years old.

Niagara County Adult Protective Services Niagara County Adult Protective Services has the legal responsibility to investigate alleged abuse, neglect or exploitation of vulnerable adults aged 18 and older and to provide services to protect such adults from harm.

Investigation and assessment of the adult’s needs and risk of harm; Counseling for the victimized adult and their family; Case management including location and arrangement of medical and mental health assessments and services, home health care, homedelivered meals, and homemaker or housekeeper chore services. This could include ongoing assessments and monitoring to assure that the services place continues to be appropriate;

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Advocacy to assist in obtaining benefits and services the adult is entitled to; Finding alternative living arrangements, or arranging for emergency room and board for an APS client up to 30 days; Money management to assist adults who are unable to manage their own resources on their own behalf or protect themselves from exploitation.

This can range from informal to more formal means of money management. APS may provide informal money management to assist adults to pay their bills or keep track of their money. APS can act as a representative payee appointed by the Social Security Administration to manage clients’ Social Security or Supplemental Security Income (SSI) benefits. A protective payee can be established to manage public assistance benefits; Crisis interventions that can be sought if the person, because of an impairment, is incapable of making the choices necessary to remove the endangering condition, include: short-term involuntary protective services orders, orders of protection, admission to a psychiatric facility, admission to a developmental center; Long-term involuntary interventions, such as seeking guardianship for persons who lack capacity or agree and who need protection to care for their person, their property, or both.

Contact Niagara County Adult Protective Services: 716 278-8621 www.niagaracounty.com/SocialServices

Mandated Reporting for abuse of a vulnerable adult In New York State, Law Enforcement and Health Care professions are mandated to report suspected abuse in residential and health care facilities.

Statutory Citation: NYS Soc. Serv. Law § 473-b

To report adult abuse, call toll-free: 1-855-373-2122

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Laws of New York State related to vulnerable adults § 120.05(12) Assault in the second degree A person is guilty of assault in the second degree when: With intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than such person.

§ 260.24 endangering the welfare of an incompetent or physically disabled person in the second degree A person is guilty of endangering the welfare of an incompetent or physically disabled person in the second degree when he or she recklessly engages in conduct which is likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect.

§ 260.31 Vulnerable elderly persons; definitions For the purpose of sections 260.32 and 260.34 of this article, the following definitions shall apply: 1. “Caregiver” means a person who (i) assumes responsibility for the care of a vulnerable elderly person, or an incompetent or physically disabled person pursuant to a court order; or (ii) receives monetary or other valuable consideration for providing care for a vulnerable elderly person, or an incompetent or physically disabled person.

2. “Sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.

3. “Vulnerable elderly person” means a person sixty years of age or older who is suffering from a disease or infirmity associated with advanced age and manifested by demonstrable physical, mental or emotional dysfunction to the extent that the person is incapable of adequately providing for his or her own health or personal care.

4. “Incompetent or physically disabled person” means an individual who is unable to care for himself or herself because of physical disability, mental disease or defect.

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Laws of New York State related to vulnerable adults § 260.32. Endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the second degree A person is guilty of endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the second degree when, being a caregiver for a vulnerable elderly person, or an incompetent or physically disabled person: 1. With intent to cause physical injury to such person, he or she causes such injury to such person; or 2. He or she recklessly causes physical injury to such person; or 3. With criminal negligence, he or she causes physical injury to such person by means of a deadly weapon or a dangerous instrument; or 4. He or she subjects such person to sexual contact without the latter's consent. Lack of consent under this subdivision results from forcible compulsion or incapacity to consent, as those terms are defined in article one hundred thirty of this chapter, or any other circumstances in which the vulnerable elderly person, or an incompetent or physically disabled person does not expressly or impliedly acquiesce in the caregiver's conduct. In any prosecution under this subdivision in which the victim's alleged lack of consent results solely from incapacity to consent because of the victim's mental disability or mental incapacity, the provisions of section 130.16 of this chapter shall apply. In addition, in any prosecution under this subdivision in which the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.

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Laws of New York State related to vulnerable adults § 260.34 Endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the first degree A person is guilty of endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the first degree when, being a caregiver for a vulnerable elderly person, or an incompetent or physically disabled person: 1. With intent to cause physical injury to such person, he or she causes serious physical injury to such person; or 2. He or she recklessly causes serious physical injury to such person.

§ 190.65 Scheme to defraud in the first degree 1. A person is guilty of a scheme to defraud in the first degree when he or she: (a) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons or to obtain property from ten or more persons by false or fraudulent pretenses, representations or promises, and so obtains property from one or more of such persons; or (b) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations or promises, and so obtains property with a value in excess of one thousand dollars from one or more such persons; or (c) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person, more than one of whom is a vulnerable elderly person as defined in subdivision three of section 260.31 of this chapter or to obtain property from more than one person, more than one of whom is a vulnerable elderly person as defined in subdivision three of section 260.31 of this chapter, by false or fraudulent pretenses, representations or promises, and so obtains property from one or more such persons; or (d) engages in a systematic ongoing course of conduct, with intent to defraud more than one person by false or fraudulent pretenses, representations or promises, by disposing of solid waste as defined in section 27-0701 of the environmental conservation law on such persons' property, and so damages the property of one or more of such persons in an amount in excess of one thousand dollars.

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Laws of New York State related to vulnerable adults Sex Offenses Under Penal Law 130.05(3) A person is deemed incapable of consent when he or she is: (b) mentally disabled (PL 130.00(5) a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct) (c) mentally incapacitated (PL 130.00(6) a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent) (d) physically helpless (PL 130.00(7) a person is unconscious or for any other reason unable to communicate an unwillingness to act) (h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination.

Civil Legal Remedies For questions or concerns on any of the terms or conditions listed below or to verify legal documents; please contact the following: Niagara County District Attorney’s office: 716-439-7085 The Center for Elder Law and Justice: 716-878-9297 Power of Attorney

A power of attorney is a legal document that authorizes one person or party to act as another in a financial capacity.

Order of Protection: It is a legal document in which a judge orders someone to follow specific conditions of behavior, and/or tells someone things that they must or must not do in relation to another person.

Guardianship: A guardian is a person or an agency to whom the court gives authority to take responsibility for the care of an adult who the court deems incapacitated or unable to handle their own affairs. Authority can be granted for a guardian to make all 11 decisions, or can be granted on a limited basis to make specific decisions as directed by the court.

Community Resources in Niagara County Office for the Aging, Niagara County Services available: information and referrals for nutrition services, food pantries, health information, home energy assistance, wellness, mental health, in-home services, public benefits Contact: Krystle Steen, Case Manager for Older Adults Direct Phone: 716-438-4030 Email: Krystle.Steen@niagaracounty.com Phone: (716) 438-4020, Hours 9am - 5pm Address: 111 Main St., Suite 101, Lockport, NY 14094

Niagara County Crisis Services 24-hour availability: 716-285-3515

Pinnacle Domestic Violence Hotline 24-hour availability: 716-299-0909

Niagara County Sheriff’s Office Victim Services 24-hour dispatch: 716-438-3394

Center for Elder Law and Justice

Civil legal assistance available M-F, 9am - 5pm Phone: 716-878-9297 Address:175 Walnut St. Suite 1, Lockport, NY

NY Connects

24-hour availability: 716-438-3030 24-hour service for referral sources.

UNITE US

Electronic platform for provider referrals and information - visit: UNITEUS.com

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Shelter Resources in Niagara County YWCA of the Niagara Frontier 24-hour Crisis Hotline: 716-433-6716 Lockport location: 716-433-6714 Pinnacle Community Services 24-hour Domestic Violence Hotline: 716-299-0909 Passage House Shelter: 716-299-0909 Lockport CARES Emergency Homeless Shelter - 716-939-0926 Niagara Gospel Mission 716-205-8805

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