Residents within the long-term care continuum represent a population vulnerable to abuse, neglect, and exploitation by a family member, another person, a member of the health care team or even an institution. Abuse, neglect, and exploitation may be purposeful or due to inadequate knowledge and/or training.

Abuse is an act of commission intended to do harm. Abuse can be physical, sexual, or emotional in nature. Many episodes of physical and emotional abuse are sporadic and occur as an unguarded response to an elderly, demented, or mentally ill person’s behavior toward the caregiver. Resistive, combative, and assaultive behaviors by the resident may trigger retaliation if the caregiver fails to understand the behavior as part of the disease process. Caregivers are more likely to be abusive if they lack knowledge of alternative behavioral approaches or become overly obsessed with completion of care giving tasks (feeding, bathing, etc.). Unresolved stress, depression, and cultural acceptance of violent punishment increase the chance that a caregiver will be abusive. Abusive caregivers are also more likely to have been abused by their now elderly parent.

Neglect is an act of omission, the failure to meet one’s obligation to anticipate and meet the needs of a vulnerable elderly person. Elders who have not yet been recognized as mentally incapacitated may be neglectful of themselves, refusing assistance, living in squalor, and not attending to their health, hygiene, or safety (a common situation in Adult Protective Services ). Neglect may be purposeful or retaliatory. When the elder shows no gratitude or is critical of the care they receive neglect is more frequently seen. But more often, neglect is the result of inadequate understanding and anticipation of a vulnerable elder’s needs. Poor knowledge and training on the specifics of care giving of a vulnerable elder, inadequate care planning to delineate anticipated needs, lack of “job ownership,” unprofessional attitudes, and low motivation of caregivers are all potential risk factors for neglect. Elders with burdensome needs due to morbid obesity or elders who are slow assisted feeders have been shown to be at increased risk for neglect as well. Neglect often occurs when caregivers fail to recognize that an elderly individual’s disability is progressing and they now have increased care needs. Changes in the plan of care should not wait for a quarterly facility care plan update, but should occur when a change of resident condition is recognized.

Neglect may also occur at the institutional level due to understaffing, or as a result of inadequate supervision, orientation, or training. Poor work group cohesion, excessive staff turnover, and inadequate resources may also lead to institutional neglect.

Exploitation refers to acts of misappropriation of a vulnerable elder’s money or property. This is not necessarily for the purpose of enriching the perpetrator. For example, two daughters have their mother’s best interest in mind as they hurriedly sell their mentally capacitated mother’s home and furnishing while she is in a nursing facility recuperating from a surgery. They sell the house to prevent their mother from returning home to live alone, because they feel she will be unsafe. More often, however, exploitation is overt fraud or theft. Misappropriating an elder’s pension and Social Security checks for their own use, and illegal transfers of property without proper consent are the types of exploitation most commonly perpetrated by families. Nursing home staff taking a resident’s property or medications is the type of exploitation commonly perpetrated by facility staff. Occasionally, guardians and those designated as Power of Attorney may exploit the elderly they are supposed to protect. Although Courts require yearly reports from guardians in order to discourage exploitation, no such oversight is required for persons with other forms of surrogate decision-making. The practitioner in long-term care should be alert to evidence of exploitation and report concerns to the appropriate authority. Consider the situation of an aged and non-ambulatory resident with schizophrenia who wanted to buy a thermos to keep coffee in his room. When the facility’s social worker was asked if the resident could purchase the thermos, they indicated that the resident would have a small amount of spending money left over from his Social Security check after the nursing home payment. When, 1 month later, the resident did not have a thermos, the physician discovered the resident’s family routinely pocketed all his spending money. The state government agency for nursing home surveys is typically the authority to investigate abuse of a nursing home resident by facility staff or a family member. Adult Protective Services is the appropriate authority to investigate abuse, neglect, or exploitation of an individual who lives in the community.

Abuse, neglect, and exploitation perpetrated by a family member, unpaid caregiver, or other private individual are usually resolved without bringing criminal charges. In contrast, abuse, neglect, and exploitation by an institution or a certified or licensed caregiver within the long-term care continuum, are handled by the formal survey process, and increasingly by licensure procedures and even criminalization. The Centers for Medicare and Medicaid Services State Operations Manual requires nursing facilities to make efforts at abuse prevention by:

All adults are considered mentally competent by law unless adjudicated otherwise. A court makes a competency or incompetency designation. Physicians and other providers, as recognized by individual state law, may make a determination of an individual’s mental capacity or incapacity. This may be partial or complete and it may be specific to a particular circumstance. Capacity, then, is somewhat decision related. Similarly, incapacity may be permanent as in dementia, or temporary as in delirium or intoxication. While often used interchangeably, competency is a legal determination and mental capacity is a clinical one.

There are several distinct types of competency under the law. A person is competent to stand trial for a crime if they know the difference between right and wrong and are able to participate in their own defense. Different criteria exist for competency to make or change a will; this is referred to as testamentary capacity . When changing a will, a person is considered competent if they know the nature/extent of their property; know the natural objects of their bounty (heirs); the disposition that their will is making; and the implications of this plan of distribution. Additionally, they must be free of undue influence or coercion.

Practitioners are rarely asked to opine on mental capacity as it relates to competence to stand trial, though in cases of resident-to-resident physical or sexual assault this may occur. More often practitioners are asked to evaluate mental capacity as it relates to testamentary capacity. When this is likely to be contested, the practitioner may wish to perform the capacity evaluation on videotape with the appropriate consents, or in a lawyer’s office with full transcription. Asking questions that relate to criteria for testamentary capacity as well as performing a standard test of cognition, are both helpful when determining capacity.

Mental capacity assessment is often needed in long-term care practice to determine an elder’s ability to make decisions in their own best interest of a personal, medical and financial nature. Often an adult child is listed as the “Responsible Party” on the nursing facility demographic face sheet and delegated to make decisions without any formal authority, and no attempt is made to determine whether the resident is partially or fully able to make their own decisions. This practice runs contrary to the ethical principle of autonomy and exemplifies ageism. Indeed, cases have occurred where a mentally capacitated individual has been kept in nursing home care against their will through the combined efforts of the facility, attending physician, and family.

Conversely, there are nursing or assisted living facilities, which list the resident as the “Responsible Party” even though the resident is moderately or severely demented, psychotic, or neuropsychiatrically impaired, and clearly do not have decisional capacity. This usually occurs when the resident has no close family or proxy legal representative.

When an elder is found to be mentally incapacitated and is facing a situation requiring an informed decision, the practitioner must consider all the surrogate decision-making options. In all situations of surrogate decision-making, look for documents such as living wills or advance care directives, or any individuals that can provide a “substituted judgment” for what the individual would have decided if he or she were able to express an informed decision. Any surrogate decision-maker is always expected to act in that individual’s best interest.

In many states, statutes exist listing a hierarchy of family decision-making usually beginning with the spouse, then the oldest adult child and so forth, who assume the decision-making role without need for a more involved legal process. Clinicians simply make a determination of temporary or permanent mental incapacity in the medical record, and then contact the family member highest on the list who is both capable and willing to undertake surrogate decision-making. Should a clinician initially or subsequently believe that this individual is not acting in the best interest of the patient, then the clinician should challenge their surrogate decision-making status by submitting a report to Adult Protective Services or perhaps to the court as appropriate to that jurisdiction and circumstance.