In New Jersey, endangering the welfare of an elderly or a disabled person is a serious offense. The statute is somewhat controversial because it criminalizes actions and behavior that can also be brought as a civil case with no criminal consequences. To be a criminal case, the accused must have a guilty mind in addition to the guilty act. But what does it mean to have a “guilty mind”? Stated more simply, it means that these types of cases involve purposeful criminal conduct that cannot reasonably be explained away as a mistake. But even mistakes can be criminalized if the mistake(s) are outrageous enough to be classified as criminal neglect.
In matters involving endangering the welfare of an elderly or disabled person the state will seek to demonstrate how the aged and/or vulnerable person was injured by the defendant’s actions or inaction whereas the Defense will attempt to prove that the defendant did the best that they could and that other factors contributed to the risk factors that endangered the elderly person.
Elder Abuse and Criminal Liability Video
Let’s look at the Endangering the Welfare Statute. This statute, N.J.S.A. 2C:24-7 reads as follows:
N.J.S.2C:24-7. Endangering the Welfare of an Incapacitated Person
- A person is guilty of disorderly persons offense when he or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself because of mental disease or defect.
- A person is guilty of a crime of the fourth degree if he has a legal duty to care for, or has assumed continuing responsibility for the care of, a person who is unable to care for himself because of mental disease or defect when the actor knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of the person.
- A person is guilty of a crime of the third degree if he has a legal duty to care for, or has assumed continuing responsibility for the care of a person who is unable to care for himself because of mental disease or defect and the actor abandons the person or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the person. For purposes of this section “abandon” means the willful desertion or forsaking of the person who is unable to care for himself because of mental disease or defect.
- A person is guilty of a crime of the second degree if he has a legal duty to care for, or has assumed continuing responsibility for the care of, a person who is unable to care for himself because of mental disease or defect and the actor causes the person harm that would make the person abused or neglected as those terms are defined in section 2 of P.L. 1993, c249 (c.52:27D-407).
- Nothing in this section shall be construed to preclude or limit the prosecution or conviction for any other offense defined in this code or in any other law of this state.
But endangering the welfare of an incompetent person is not the only applicable criminal statute. Read below.
Abandonment, Neglect of Elderly and/or Disabled Adult
In addition to Endangering the Welfare of an Incompetent Person there are laws which address the abandonment and neglect of an Elderly or Disabled adult. N.J.S.A. 2C:24-8 provides as follows:
- Abandonment, Neglect of Elderly Person, Disabled Adult
- A person is guilty of a disorderly person’s offense when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person 60 years of age or older or a disabled adult.
- A person is guilty of a crime of the fourth degree if he has a legal duty to care for, or has assumed continuing responsibility for the care of, a person 60 years of age or older or a disabled adult when the actor knowingly acts in a manner likely to be injurious to the physical, mental or morel welfare of the person.
- A person having a legal duty to care for or who has assumed continuing responsibility for the care of a person 60 years of age or older or a disabled adult, who abandons the elderly person or disabled adult or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the elderly person or disabled adult, is guilty of a crime of the third degree. For purposes of this section “abandon” means the willful desertion or forsaking of an elderly person or disabled adult.
- A person having a legal duty to care for or who has assumed continuing responsibility for the care of a person 60 years of age or older or a disabled adult, who causes the elderly person or disabled adult harm that would make the elderly person or disabled adult abused or neglected as those terms are defined in section 2 of P.L. 1993, c.249 (C.52:27D-407) is guilty of a crime of the second degree.
- A person shall not be considered to commit an offense under this section for the sole reason that he provides or permits to be provided nonmedical remedial treatment by spiritual means through prayer alone in lieu of medical care, in accordance with the tenets and practices of the elderly person’s or disabled adult’s established religious tradition, to an elderly person or disabled adult to whom he has a legal duty to care for or has assumed responsibility for the care of.
- Nothing in this section shall be construed to preclude or limit the prosecution or conviction for any other offense defined in this code or in any other law of this state.
- These laws were recently amended to increase the penalties for knowingly mistreating disabled and elderly persons. The bill is intended to facilitate the prosecution of abusers who take advantage of their victims’ helplessness.
The key issue in these statute(s) is the first element: whether or not there is a legal duty of care as an attorney-in-fact, or as a spouse, under these circumstances. Because an attorney-in-fact has a statutory duty of care to their principal, it is possible that these individuals will be considered to have a legal duty of care to their elderly principal under N.J.S.A. § 2C:24-8, making them also criminally liable if they willfully desert their principal. This occurred in a 2008 case, (In re Siegal), where the attorney-in-fact for a 92-year-old woman was charged with elder neglect under N.J.S.A. § 2C:24-8 after the woman was found malnourished and dehydrated in a fetal position on her filthy bedroom floor. (In re Siegal, No. A-6256-06T3, 2008 WL 2548755, at *1 N.J. Super. Ct. App. Div. 2008).
So, the issue, question, challenge, in these types of cases is to prove each element of the criminal law. If the facts are compelling enough a successful prosecution can be made. If not, a civil action can be filed, requesting significant financial damages.
Prosecuting Claims of Theft Against an Aged and Declining Adult: A Thief Wears Many Disguises
Stealing (politely called criminal theft) is a common accusation made against those involved in elder financial abuse and exploitation. Theft can be charged criminally and/or civilly in the Superior Court. There are different statutes which address the several different ways theft can be charged. These statutes are:
- Theft (N.J.S.A. 2C:20-3)
N.J. Stat. Ann. § 2C:20-3 concerns theft by unlawful taking or disposition. The statute includes provisions for both movable and immovable property. It states, in part, “[a] person is guilty of theft if he/she unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him or her thereof. . . [and a] person is guilty of theft if he/she unlawfully transfers any interest in immovable property of another with purpose to benefit himself or another not entitled thereto.” - Theft by deception (N.J.S.A. 2C:20-4)
N.J. Stat. Ann. § 2C:20-4 criminalizes theft by deception. The statute specifically provides that, “[a] person is guilty of theft if he purposely obtains property of another by deception.” The statute then clarifies that a person deceives someone by purposely creating or reinforcing a false impression, preventing another from acquiring information which would affect his judgment of a transaction, or failing to correct a false impression. - Theft by failure to make required disposition (N.J.S.A. 2C:20-9)
N.J. Stat. Ann. § 2C:20-9 concerns theft by failure to make required disposition of property received. It provides that “[a] person who purposely obtains or retains property upon agreement or subject to a known legal obligation to make specified payment or other disposition, whether from such property or its proceeds or from his/her own property to be reserved in equivalent amount, is guilty of theft if he/she deals with the property obtained as his own and fails to make the required payment or disposition.” - Theft by misapplication of entrusted property (N.J.S.A. 2C:21-15)
This statute is prosecuted when a person disposes of property that has been entrusted to him or her as a fiduciary or in a manner which he or she knows is unlawful or involves a substantial risk of loss or detrimental to the owner of the property or to a person for whose benefit the property was entrusted.
Grading the Severity of a Crime of Theft
N.J.S.A. 2C:2N.J. Stat. Ann. § 2C:20-2 provides the grading (grading means the seriousness) of theft offenses. Notably, theft is a crime in the second degree if it is in breach of an obligation by a person in his capacity as a fiduciary and the amount involved is $50,000 or more. Theft is a crime in the third degree if it is in breach of an obligation by a person in his capacity as a fiduciary and the amount involved is less than $50,000.
Each charge of theft includes several common element(s). Each theft statute is written to prosecute an individual based upon the distinct way in which the person steal(s) or tries to steal from their victim(s).
You’ll notice that each charge of theft involves property (real or personal property like real estate, funds in a bank account, cash, etc.) which is either (1) wrongfully obtained or taken from a person and/or (2) wrongfully and purposefully withheld from its lawful owner. Charges of theft can also include situations where a person deceives someone into giving up possession and/or ownership of property (example, they’ve lost their wallet and need money to get home), deceives and lies about their intentions for the property when possession is handed-over (i.e. give me money and I’ll invest it for you whereupon they deposit it into their personal account), misrepresents the value of property (your valuable antique car is an old piece of junk worth nothing), gives a false and misleading impression to another with whom he or she stands in a confidential relationship about the property (same example as the prior example except the perpetrator is a trusted son, daughter, power of attorney, etc.), fails or refuses to return or dispose of property in accordance with a promise made prior to receiving possession of the property etc. (let me borrow your car for a week while mine is being repainted and 6 months later the car is still not returned).
Municipal police departments and county prosecutors take theft charges seriously. They are aware that most of the victims are female, generally older and with no immediate family nearby, have existing (and positive) relationships with the perpetrators and are highly trusting and declining in health. Because the victims are elderly and in declining health, action is required immediately so that a prosecution can be successfully brought.
If you suspect theft in any form as described here, then you should report it immediately to the police and contact Fredrick P Niemann Esq., so that civil action can be taken against the thief and before the money is spent or hidden away. Fred can be reached toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
In Suspected Cases of Physical or Financial Elder Abuse After the Death of the Victim, What Can Be Done?
N.J.S.A. §52:27d-406 governs reporting elder abuse in this state and provides for protective services for the elderly when they are being abused but, the protections and remedies afforded under the statute are not available to an elderly person once he or she has died.
Sometimes the abuse of a person is only learned of when the victim has passed on. There is, however, means by which the estate can recover for the death of the elderly abused person through a claim under the wrongful death statute, found in N.J.S.A. §2A:31-1. The statute reads:
When the death of a person is caused by a wrongful act, neglect or action of another, and death would not have happened but for the acts perpetrated upon him or her by the accused, then the estate of the person injured can maintain an action for damages resulting from the injury, notwithstanding the death of the person.
Our courts have sustained wrongful death judgements based upon elder abuse claims. The reported case of Dwyer, as Administratrix of Dwyer, Estate v. Harbor View Health Care Center, Jersey City Healthcare Providers LLC, HC Provider Mezz LLC; Jersey City Provider Corp, as an example. In this case the plaintiff died “due to dehydration, malnutrition, weight loss, improper treatments, pressure ulcers all of which required hospitalization and surgical intervention, while a resident of the defendant Harbor View Health Care Center, a nursing home. The estate sued for wrongful death, and claimed elder abuse. The jury found in favor of the plaintiff and awarded $13,213,400 in damages. Obviously, this was an extreme example but the point to be emphasized is that civil relief for elder abuse which causes death can be successfully prosecuted to a jury conclusion especially when death was caused by elderly abuse.
Fredrick P. Niemann Esq.
To discuss your NJ case of Elder Abuse, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office. Fred is genuinely interested in helping you evaluate whether a case of Elder Abuse can be successfully brought.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Elder Abuse Attorney