What Actions Can Be Taken Against Abusers of Vulnerable Persons?
A vulnerable adult is a person sixty years of age or older who is unable to care for himself, or is subject to a guardianship, or suffers a developmental disability, or is admitted to any facility charged with the vulnerable person’s care, or is receiving care from home health, hospice, or home care agencies, or is receiving services form an individual provider. RCW 74.34.020(16).
A person who abuses a vulnerable adult may be:
1. Prosecuted for any crime involved (RCW 74.34.063),2. Sued for injuries to, damages to, losses of, and pain and suffering of the vulnerable adult, including reasonable attorney’s fees and costs in bringing such suit (RCW 74.34.200),
3. Enjoined from obstructing an investigation of allegations of elder abuse (RCW 74.34.080),
4. Ordered to permanently desist from involvement with the vulnerable adult (RCW 74.34.110),
5. Ordered to temporarily desist from involvement with the vulnerable adult (RCW 74.34.120), or 6. Reported to Adult Protective Services for investigation.
For purposes of these actions against abusers, abuse of a vulnerable adult means:
A. “Abandonment” of a duty to provide needed care for the vulnerable adult,B. “Abuse” by inflicting injury, unreasonable confinement, intimidation, or punishment of the vulnerable adult,
C. “Sexual abuse” by all nonconsensual sexual contact, including photography, and even consensual sexual contact between a staff person of a facility in which the vulnerable person resides and the vulnerable adult,
D. “Physical abuse” by willful bodily injury or physical mistreatment of the vulnerable person, including striking, slapping, pinching, choking, kicking, shoving, prodding, or use of chemical or physical restraints (except where such restraints are consistent with licensing requirements),
E. “Mental abuse” by willful mental or verbal abuse (by commission or omission), including coercion, harassment, inappropriately isolating the vulnerable adult from family or friends or regular activities, or verbal assault including ridiculing, intimidating, yelling, or swearing,
F. “Exploitation” by forcing or exerting undue influence to cause a vulnerable adult to act in a way inconsistent with relevant past behavior, or compelling the vulnerable adult to perform services to benefit another person,
G. “Financial exploitation” by illegal or improper use of property, income, resources, or trust funds of the vulnerable adult by any person for the benefit of a person other than the vulnerable adult,
H. “Neglect” by action or inaction on the part of a person who is obligated to care for the vulnerable person but fails to provide goods and services necessary to the vulnerable adult’s physical or mental health, or fails to prevent physical or mental harm to the vulnerable adult, or any act that shows serious disregard of the vulnerable adult’s needs sufficient to present a clear and present danger to the vulnerable person, or
I. “Self-neglect” by the vulnerable adult living on her own outside a facility, in which the vulnerable adult fails to provide for her own physical or mental health in such a manner as to endanger her well-being. RCW 74.34.020.
Court actions against an abuser may be initiated by the vulnerable person, her attorney-in-fact, her guardian, DSHS, or any “interested person.” Interested persons are persons who demonstrate to the court’s satisfaction that the person is interested in the vulnerable person’s welfare and has a good faith belief that court intervention is necessary, and that the vulnerable person cannot, because of incapacity, undue influence, or duress protect her own interests. RCW 74.34.020, 74.34.210.
Mandated reporters are persons obligated to report abuse of vulnerable adults to Adult Protective Services immediately. RCW 74.34.035. Sexual assault, physical assault, and reasonable fear of physical assault must be reported to Adult Protective Services and an appropriate law enforcement agency. RCW 74.34.035. Assault between vulnerable adults where injuries are minor need not be reported to law enforcement, but must still be reported to Adult Protective Services. RCW 74.34.035. Mandated reporters are DSHS employees, police officers, social workers, professional school personnel, individual providers, employees of a facility that provides care for vulnerable persons, operator of a facility that provides care for vulnerable persons, employees of social services, welfare, mental health, adult day health, adult day care, home health, home care, or hospice agencies, the county coroner or medical examiner, Christian Science practitioners, or home health providers. RCW 74.34.020.
Permissive reporters are bank employees, attorneys, volunteers in vulnerable adult programs, or any interested person; these persons may, but are not required to, make reports to law enforcement or Adult Protective Services. RCW 74.34.020, 74.34.035(6).
Contents of all such reports of elder abuse are prescribed at RCW 74.34.035(8). No person who makes a good faith report of abuse of a vulnerable adult has liability for such a report. Making such reports is not a breach of confidentiality. RCW 74.34.050. A mandated reporter who fails to make a mandated report shall be guilty of a gross misdemeanor crime. False reports, made intentionally, maliciously, or in bad faith, are misdemeanor crimes. RCW 74.34.053.
Adult Protective Services must initiate a response to a report of abuse of a vulnerable adult within twenty-four hours. Where investigation shows that the actions alleged are criminal, Adult Protective Services must report to law enforcement agencies, who themselves must report to the prosecuting authority in that jurisdiction. If the abuser is a professional, Adult Protective Services must report to that professional’s licensing authority. RCW 74.34.063.
Adult Protective Services reports may include the name of the vulnerable adult and the alleged abuser, but shall not include the name of the person who made the report without that person’s written permission. The alleged abuser must be notified by Adult Protective Services of the outcome of their investigation, but shall not learn the name of the vulnerable adult involved. RCW 74.34.068.
The Washington legislature encourages, but does not require, resolution of disputes under this statute by the least formal means available. Direct discussion with the alleged abuser, use of the long-term care ombudsman or other intermediaries (such as mediators), and recourse through licensing and regulatory agencies are recommended. RCW 74.34.200(2).
Petitions for an order of protection regarding a vulnerable adult must be made on a standardized form (RCW 74.34.115), no bond can be required, venue shall be the county of the vulnerable adult’s residence (in most cases), and no filing fee can be charged. The forms and instructions are also free. RCW 74.34.110. A hearing on the petition for order for protection must be heard within fourteen days from the date of filing. Personal service on the alleged abuser and the vulnerable adult must be made not less than six court days before the hearing. On appropriate facts, temporary orders for protection may be issued without notice to the alleged abuser or the vulnerable adult. RCW 74.34.110.
No retaliatory actions against good faith whistleblowers shall stand. Whistleblower identity shall remain confidential, except when the complaint is believed to be a bad faith action. Any attempt to expel a vulnerable adult from a facility or other discriminatory treatment creates a rebuttable presumption that such action was retaliatory.
Withholding or withdrawing life-sustaining therapies (RCW 7.70, 70.122) cannot be construed as abuse of a vulnerable adult (RCW 74.34.180). If a vulnerable adult relies on spiritual treatment instead of medical treatment in accord with the practices of a well-recognized religious denomination, that spiritual treatment may not be considered abuse. RCW 74.34.180, 74.34.205.
Brad Lancaster works as a Seattle divorce attorney, and Seattle probate attorney, and Seattle elder law attorney, serving King County and Snohomish County, including Seattle, Shoreline, Lake Forest Park, Edmonds, Woodway, Lynnwood, Mountlake Terrace, Alderwood, Brier, Kenmore, Woodinville, Mukilteo, Mill Creek, and Everett. Brad provides collaborative solutions to human conflict.