Protecting the Rights of the Elderly

I am often asked how to protect the rights of elderly persons in
Oregon. In addition to having the same rights as other people, Oregon
law provides that elderly persons have some additional protections.

All people have the right to be protected against fraud.
Unfortunately, the elderly are often victimized by those who are most
trusted. It can be difficult to prove that someone has taken advantage
of an elderly person especially when the person claims that they were
following the wishes of the elderly person. Oregon law allows elderly
victims or their representatives to obtain restraining orders to protect
them from physical, mental and sexual abuse, exploitation, theft,
neglect and abandonment. The Elderly Persons and Persons with
Disabilities Abuse Prevention Act can be used to protect the victim from
further abuse if the person has been subject to abuse in the last 180
days and if they are in immediate and present danger of further abuse.
An elderly person or their representative can also sue the perpetrator
for physical or financial abuse and receive a money award for the harm
that was suffered.

1) Physical abuse is the use of force to threaten or injure; 2)
Emotional abuse is verbal attacks, threats, rejection, isolation, or
belittling acts that cause pain or distress; 3) Sexual abuse is sexual
contact that is forced, tricked, threatened or otherwise coerced upon a
vulnerable adult, including anyone who is unable to give consent; 4)
Exploitation includes theft, fraud, misuse or neglect of authority, and
use of undue influence as leverage to gain control over an older
person’s money or property; 5) Neglect is a caregiver’s failure or
refusal to provide for safety, physical or emotional needs; and 6)
Abandonment is desertion by anyone with a duty of care.

Public officials and certain private individuals have a duty to
report suspected abuse of a person over the age of 65 years old to the
Department of Human Services or to a local law enforcement agency.
However, any person may report suspected abuse.

Many people are not aware that elderly persons in Oregon have a
Resident’s Bill of Rights which protects residents of most types of care
facilities. The Resident’s Bill of Rights requires care providers to
inform residents of all rights, services and treatment available to
them. The care facility must provide residents with appropriate medical
treatment and not transferred them within or terminate them from the
facility except with proper notice and cause. The Resident’s Bill of
Rights provides that residents have the right to be free from abuse,
harassment and retaliation. If a resident is having difficulty enforcing
their rights they should contact the Oregon Ombudsman’s office at
800-522-2602 or 503-378-6533 for assistance. They have volunteers
available to respond to problems in Central Oregon.

Elderly persons are often victims of fraud or scams including
telemarketing scams that trick an elderly person into sending money to a
third party for a variety of reasons including paying for a product,
winning a contest or helping someone in need. Some scams include contact
by a person who promises to recover their losses from previous scams.
An elder abuse restraining order can be obtained to protect against
further harm from these scams. However, once a person’s money has been
taken it is often difficult to retrieve it.

The best way to protect against abuse if you are elderly, or if you
care about some who is elderly, is to ensure that there is a trustworthy
person involved. The elderly person should have their estate planning
documents prepared including power of attorney, advance directive and
will or revocable living trust. Be wary of anyone who suggests that the
elderly person should make significant changes to the beneficiaries of
their assets. Having an estate plan in place with a lawyer who knows the
elderly person may prevent a third party from exercising undue
influence because the attorney can discuss the elderly person’s
decisions with them before any change is made to their estate plan. In
certain situations a guardian or a conservator is necessary to protect
an elderly person from risk of abuse if that person is no longer capable
of making their own decisions.

The final point in protecting the rights of the elderly is not to
wait too long. Often elderly persons do not ask for assistance and
children or other persons in their lives do not interfere for fear of
upsetting them. However, if the elderly person in your life is acting
out of their normal pattern, do some investigation to ensure that that
person and their assets are safe and well protected.

“This advisory is published by Bryant, Lovlien & Jarvis, PC
to provide a summary of significant developments to our clients and the
community. It is intended to be informational and does not constitute
legal advice regarding any specific situation. This material may also be
considered attorney advertising under court rules of certain
jurisdictions.”

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