By Fred Nelson, Staff Attorney with Iowa Legal Aid’s Legal Hotline for Older Iowans
Until recently, many older Iowans were without protections for many types of abuse. In an effort to safeguard vulnerable seniors the legislature took action and on May 23, 2014, the Governor signed into law Senate File 2239, an Act relating to elder abuse and providing penalties to those engaging in elder abuse. The act creates Chapter 235F and was made effective July 1, 2014.
The Act greatly expands protections against abuse to “Vulnerable Elders.” A Vulnerable Elder is defined as “a person sixty years of age or older who is unable to protect himself or herself from elder abuse as a result of age or a mental or physical condition.” This expands current remedies found under Dependent Adult Abuse statutes (Iowa Code Chapters 235B & 235E) which require the perpetrator of abuse to be the “caretaker” of a “dependent adult.” It also supplements remedies under the Chapter 236 Domestic Abuse Act and includes criminal remedies.
Elder Abuse under the Act includes: 1) Physical injury, unreasonable confinement, punishment or assault, 2) Sexual offense, 3) Neglect which is deprivation of necessary care by a caretaker, and 4) Financial exploitation.
Of note in the Act is the protection in the area of financial exploitation. Iowa Code § 235F.1(8) defines financial exploitation relative to a vulnerable elder as occurring when a person stands in a position of trust or confidence with the vulnerable elder and knowingly and by undue influence, deception, coercion, fraud, or extortion, obtains control over or otherwise uses or diverts the benefits, property, resources, belongings or assets of the vulnerable elder. The definition for a person who “stands in trust or confidence” is broad. In addition to family members, and caretaker, it includes “a person who is in a confidential relationship with the vulnerable elder.”
Perhaps the most sweeping change is the creation of the remedy providing for the vulnerable elder or a “substitute” to petition the court for relief. The law defines a substitute petitioner as a family or household member, guardian, conservator, attorney in fact, or guardian ad litem for a vulnerable elder, or other interested person who files a petition under this chapter. The inclusion of an “other interested person” as a substitute petitioner significantly expands who may act on behalf of the vulnerable elder to stop elder abuse.
The actual process and remedies available are very similar to the Iowa Code Chapter 236 domestic abuse petition. The law allows for an emergency order, a temporary order, and following a hearing a final protective order or approved consent agreement. The protective order or consent agreement cannot exceed one year – but can be extended by a judge after hearing.
Protections and remedies may include restricting defendant’s contact with the vulnerable elder to stop abuse, harassment or intimidation.; moving the defendant from the elder person’s home or requiring the defendant to find housing for the vulnerable elder; and requiring the defendant to return property or funds as well as prohibiting transfer of funds and property. The order shall not allow any person other than the vulnerable elder to assume responsibility for the funds, benefits, property, resources, belongings, or assets of the vulnerable elder. The act defers to protective proceedings, guardianship and conservatorship, under Chapter 633 if further protection is needed. Penalties include contempt actions and the potential for the defendant to be taken into custody by law enforcement for violation of the terms. The court may also order the defendant to pay attorney fees and court costs.
At this time, pro se forms are to be developed by the judicial branch. The deadline for completion is July 1, 2015. Until these forms are completed county clerks of court should have a temporary pro se Petition for Relief from Elder Abuse. This form may be used by elders or a substitute petitioner to ask the court for protection against abuse.
Iowa Legal Aid provides free legal assistance to low-income Iowans in all 99 counties with civil legal problems involving basic necessities and safety. For additional information visit Iowa Legal Aid’s websites, www.iowalegalaid.org and www.probono.net/iowa. Probono.net/iowa is a free, members only site that provides a comprehensive collection of information on legal topics, upcoming events including continuing legal education opportunities, and resources on civil law practice for members of Iowa’s justice community.
