The Law Firm of Peter L. Klenk and Associates Call Klenk Law LinkedIn The Law Firm of Peter L. Klenk and Associates

Posted on Monday, June 17th, 2013 by Peter Klenk

As the “Boomer Generation” ages, the United States’ elderly population has become the most rapidly growing segment of our population. In 2010, the National Center on Elder Abuse (NCEA) reported that the population of people age 65 and older in the United States had reached 40.3 million, or 13% of the total population. This number will only continue to rise and the NCEA has projected that by 2050, this population will grow to 20%.

As the elderly population continues to increase, the concerns for interest and asset protection have increased as well. According to the Elder Law Advisory, 48% of nursing home residents have been diagnosed with Alzheimer’s and the NCEA reports that approximately 5.1 million American elders have some type of dementia. Because their conditions can leave them with symptoms of confusion, they become more susceptible to manipulation and can be more vulnerable to abuse, exploitation and neglect. Unfortunately, approximately 90% of these abusers are family members.

In an attempt to protect this rapidly growing but vulnerable population, the Older Adults Protective Services Act was created to protect older adults who lack the capacity to protect themselves, providing them with the services necessary to protect their health, safety and welfare. The Act allows each area agency on aging to receive reports of older adults in need of protective services and investigate these reports with access to all of the older adult’s relevant records. In these instances, lawmakers must work to find the balance between protecting these older adults’ Constitutional rights and protecting them from imminent risk of abuse, neglect, exploitation or abandonment.

But how far can the agency go in protecting a senior citizen who might be in danger, but refuses to cooperate with the offered help?

In a recent Chester County Orphans’ Court Case, “In the Interest of A.M. an Older Adult” (you can read the entire case through this link), the question of where to draw the line between protecting an elderly Pennsylvanian and the private rights of that elderly Pennsylvanian was raised and debated.

In this instance, there was suspicion that A.M., an 82-year-old-woman, was being manipulated by her four adult children and that her health and money were at risk. Her physician had diagnosed her with dementia, for which she had not been taking her medication, and he believed she was not capable of the cognitive ability it takes to appreciate the signing of legal documents. However, she had executed four Powers of Attorney over a period of six months, allowing large sums of money to be withdrawn from her accounts.

When the Chester County Department of Aging Services attempted to investigate the situation, however, A.M. refused to sign releases, provide the necessary records or information and refused to answer the phone or come to the door. She was requested to receive a medical evaluation, as well as provide one of her sons’ keys to her home in order to assist in the investigation. It became very obvious that someone was interfering with the investigation.

With the investigation thwarted, there was no way of knowing if A.M. was being harmed, but there existed a risk of serious harm. The court authorized not only that information be turned over to the investigators, but also allowed them to forcibly enter her house to continue their investigation. A.M.’s attorney argued that this authorization was in violation of her Constitutional Rights. This brought up the larger issue, whether a state agency should have the ability to obtain permission to force their way into someone’s home to protect them. Most agree that a fireman should be allowed if there is smoke, but Judge Tunnell was forced to make a judgment based on evidence less obvious than billowing smoke out a window. However, the court concluded that because of A.M.’s circumstances, they could grant the Chester County Department of Aging Services access to her home and personal records; even if this meant having the police break down the door. They believed, in this instance, that the completion of their investigation and her safety were the most important factors.

It is still possible for this case to be appealed, so Judge Tunnell’s decision might not be the final say for A.M., but this case is well reasoned and well written. Make sure to continue to check our website for updates on this case, related cases, and news on this issue.

« Back

powered by BirdEye