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Self-Neglect and Societal Intervention – Keystone Elder Law – Mechanicsburg, PA

During the fiscal year 2012-2013, Adult Protective Services (APS) across Pennsylvania received a total of 18,542 reports of potential elder abuse. The term elder abuse includes actions of financial exploitation, neglect (both self-neglect and caregiver neglect), psychological abuse, physical abuse, and sexual abuse. Of these reports, 13,627 (74%) were deemed appropriate for investigation, and of the cases investigated, 4,991 were substantiated and required action by APS.  42.3% of these substantiated cases included actions of self-neglect, which is twice as many cases as the second most common action of caretaker neglect, and more than 2 ½ times as many cases of financial exploitation.  When services were provided for all types of abuse, the greatest expense was for personal care services, followed by home support/housekeeping.  The basic care needs of our older adult population are obvious.

Self-neglect is “the failure to provide for oneself… goods or services essential to avoid a clear and serious threat to physical or mental health” (PA statute). Cases of self-neglect can be tricky to manage, however, due to principles of autonomy and self-determination.  Consider an older person who lives alone, has difficulty walking, and is overweight.  Due to the extra weight and decreased mobility, the individual doesn’t feel safe to use the shower so sink bathing has been the norm for several years.  Lately, certain areas are getting harder to reach, so body odor is becoming an issue. The only bathroom in the house is upstairs, so once the person manages to get downstairs in the morning, a portable commode is used for toileting, which may not be emptied for several days until someone stops by to visit.  The individual still drives, but only to the nearest convenience store to obtain food (mostly sandwiches and cereal) and to the pharmacy for medications.  The only cleaning done in the house is when the only child visits from out-of-state every few months.  The child tried hiring a home care agency, but the parent refused to allow the caregiver into the house on multiple occasions so the agency discontinued services.  The child has pleaded with the parent to move to a place where supportive services are provided, but the parent adamantly refuses.  A neighbor, out of concern for the individual’s health, calls protective services.

While it is obvious that assistance in the home or in a facility would be beneficial for this individual, the ability of protective services to take action without the individual’s consent is limited. This individual has the right of self-determination, or the ability to live the way he/she chooses, even if those choices are not the norm for the rest of society.  These choices may place the individual at risk for a catastrophic event, regular hospital admissions or visits to the emergency room, and an earlier death.  But if individuals have capacity, they are allowed to take these risks as long as there is no immediate threat to themselves or others.

The Pennsylvania Code defines an older adult in need of protective services as “an incapacitated older adult who is unable to perform or obtain services that are necessary to maintain physical or mental health, for whom there is no responsible caretaker and who is at imminent risk of danger to his person or property.” The conditions of incapacity, inability, and imminent danger must occur together for protective services to override an individual’s autonomy and take action.  An unwillingness to consider safer and healthier alternatives is not enough of a reason.  For individuals with dementia, who may have an inability to recognize their limitations and the potential negative consequences of certain choices, the question becomes, “At what point are they considered incapacitated?”

The children of an older adult who is demonstrating self-neglect may wonder if they can be held liable if a catastrophic event occurs with the parent. Since the laws regarding this issue vary from state to state, the attorneys at Keystone Elder Law would advise that a family seek legal counsel for questions surrounding family responsibility for an older adult’s care situation. While many people may believe that children have a moral obligation to care for their aging parents, a legal duty to do so is a separate issue.  The designation as an agent under a power of attorney does not in itself necessitate that action be taken on behalf of an older adult, but if an agent  chooses to act, then the action taken must be in the best interest of the older adult. Legal obligations regarding the provision of care as well as financial responsibility for the cost of care must be considered.  Some people may be surprised to learn that Pennsylvania has a filial responsibility law, which holds children liable for the cost of care of their indigent parents in certain circumstances.

Self-neglect is a complicated issue which can create heightened emotions both within a family and within larger society. It raises moral questions about personal autonomy and social responsibility which have no clear-cut answers.  The legal liability of family members and health care professionals in self-neglect situations will vary from state to state.  General goals for the optimal health and safety of the older person may not always be achievable. But as individuals and as a society as a whole, we must maintain an awareness of this concept and demonstrate efforts to handle each situation with appropriate attention and sensitivity.

Karen Kaslow, RN, BSN