Criminal Liability of a Power of Attorney, Spouse or Legal Guardian for Elderly Neglect in NJ

HNW Elder Abuse and Financial Exploitation

elder abuseIn New Jersey, endangering the welfare of an elderly person is a crime in the third degree.

N.J.S.A. § 2C:24-8(a). This statute roughly requires three elements: (1) that the perpetrator has a duty of care over the victim; (2) that the victim is sixty-years-old or older; and (3) that the perpetrator willfully deserts the elderly person, putting them at risk of danger.

The applicable law states that:

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 . . . who abandons the elderly person . . . 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.

The key issue 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 they will be considered to have a legal duty of care to their elderly principal under N.J.S.A. § 2C:24-8, making them liable if they willfully desert their principal. This occurred in a 2008 case, In re Siegal, where the attorney-in-facts for a 92-year-old woman were charged for 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).

However, acting as an attorney-in-fact is not mandatory, and cannot be forced upon anyone. Therefore, one may freely resign as power of attorney and avoid the potential liability under this statute.

Without the Power of Attorney, there is still some concern as to whether a spouse could have a legal duty of care under this statute. The statute states that one can be criminally liable for elder neglect if they either have a legal duty of care for the elderly person, or if they have “assumed continuing responsibility for the care” of the elderly person. N.J.S.A. § 2C:24-8(a). Previously, children that were primary caretakers to their elderly parents, and siblings that were caretakers to their elderly siblings, have been charged under this statute. See State v. R.G. 460 N.J. Super. 416, 420 (N.J. Super. App. Div. 2019); State v. R.P.M., No. A-1605-15T4, 2016 WL 4916963, at *1 (N.J. Super. Ct. App. Div. Sept. 15, 2016).

To discuss your NJ elder abuse matter, 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 or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Elder Abuse Attorney

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