What's my liability if my parent gets hurt or dies in their home that I live in?

6 answers | Last updated: May 03, 2017
A fellow caregiver asked...

Let us say, for the sake of discussion, that I am an adult caregiver for an elderly parent. Let's also say that I am temporarily living at the home of my elder parent--because he, or she, needs more careful monitoring, these days.

If I wish to leave my elderly parent alone for a couple of hours--and he, or she, has a home electronic emergency response system, which the elder parent has used before and is familiar with--what is my liability....as caregiver/adult child if the elder parent:

falls off a safe couch where he is placed before I've left; but hurts himself, becomes diabled, or is knocked unconscious, etc?

or, God forbid, dies of a heart attack or stroke for example?

What is my liability, if any, if I wasn't there for those several hours to help--if my mother or father did not have the wherewithal to call for help, with his, or her, emergency response system?

What is my liability, even if he, or she DOES use the emergency system?

Can the police, ambulance drivers, medics, or firemen charge me with liability if I'm not there?

If I'm gone for a few hours, at a time, I can't always find a homecare assistant for such stop-gap measures. And what do I do, if I am charged with a crime of negligence, falsely and erroneously--because the first responders (including the police), in the town, do not know the law....and before the charges are dropped, days or weeks later, our family's reputation is smeared in the local papers?

This does happen!!

Any comments, on these matters, would be most appreciated.

Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

The scenario you paint raises a number of interesting issues and questions.

While there is no such thing as a foolproof system for ferreting out erroneous complaints, there are a number of protections for caregivers who are acting in good faith to provide the care that an elderly parent needs.

There are, however, strict laws against elder abuse in every state--passed for the loftiest reason: the need to keep vulnerable older people safe and protected. Those laws"”which may be invoked by any person"”protect against a wide range of wrongful behavior, including neglect and abandonment.

To safeguard against such charges, or from into caretaking that may not be the best fit for a parent's needs, it may be necessary to plan ahead. While it's true that it is often difficult to secure stopgap homecare aides on short notice, there should be alternatives for those who need to be away frequently for hours at a time from a parent who cannot be left unattended.

It's best to secure a number of possibilities to fill in the gaps"”and while emergency response systems can be a help in monitoring, they are usually no substitute for human ears and eyes. Trustworthy friends and neighbors may be willing to give a few hours respite to caregivers when needed, as well as volunteers from community or church groups. And there are also a growing number of homecare services that now provide this form of temporary care on-call when needed. Most communities also provide adult daycare and adult day healthcare services; consult the listings under "adult care ”or contact the local area office on aging at www.n4a.org/about-n4a/?fa=aaa-title-VI for local resources.

The local Adult Protective Services office can also be of great help. Caregivers in need of respite or stopgap custodial care can consult the office for local sources of help. And those who feel they may be wrongfully accused of neglecting or mistreating an elderly parent should also be able to get confidential advice and counsel.

And those who feel they are wrongfully accused of elderly abuse or neglect should also consider hiring an experienced elder law attorney for help"”both for damage control and to help gather and prepare the evidence they may need to refute the charges.

Finally, while there are examples all around of publications that regularly ignore the rules of ethics, it would be unethical indeed for any newspaper to publish stories of unsubstantiated charges. In the rare case where this did occur, it would again be advisable to secure the services of an experienced attorney for help.

Community Answers

A fellow caregiver answered...

Attorney Repa--

Thank you for your response. And I appreciate your suggestions.

An adult child, however, may have no intention of DEcreasing hours of commitment, to the care of an elder parent, once he, or she, as an adult child, discovers the actual parameters of legal liability.

It seems to me that regardless of how conscientious, or irresponsible, a caregiver is, or can be, that any caregiver ought to discover what his or her rights are. That's why I asked the question.

But I still do not know what that liability is:

If an elder parent is competent to call for help, in case of trouble, does that absolve, or does it not absolve, the adult child of criminal responsibility--if the elder parent falls ill, to the point where he, or she, becomes disabled or dies?

Perhaps this is a gray area of the law that has not been effectively tested.

I would be most appreciative to discover the answer.

Thanks much.

A fellow caregiver answered...

Yes, you are liable.

Sanzsp answered...

Well, I have my mom for a number of weeks now. Usually she is with my sister. I have secured an aide for her from 11a till 7p. I leave for work at 10a and the aide comes at 11a. Mom sleeps till then. If she were to get up, that would be a problem, but she ALMOST never does that. She is somewhat infirm, has Alzheimer's, is 86, etc. I also take the phone off the hook to prevent phone solicitors from waking her. Then the aide arrives. So far, so good.

Here's the thing: NO ONE can deliver better care than my sister and I. NO ONE. I go to yoga on Saturday mornings, and I return, get her up, put the phone back on the hook, etc. Do I worry some? YES. System is not foolproof. The aide is okay, but like so many of these people, she is dense.

But let me tell you something. I had my dad in a nursing home, with 24 hour care, and they killed him. Albeit he was dying, but they pushed him over the edge with their indifferent care. Many of the aides are angry, indifferent, and often racist; that is, they hate white men. Nothing stressed me out more than having him there. Also, he fell a lot, and they took no responsibility for that. They just called me to advise me--sometimes up to five times a day!!!!! And if I complained, they said that they cannot restrain him. Essentially, theirs is a good game. CYA is what many of these nursing homes do, day and night.

If someone were to bring charges against me for an hour or so that my mother is left in bed unsupervised, I think that we should ALL bring charges against the mediocre care and downright dangerous and crimimal care our elderly get in nursing homes and in urban hospitals throughout this country.

A fellow caregiver answered...

Assisted living facilities can take measures to alarm the bed in case a resident is a fall risk. That will not prevent the elderly person from getting up and falling. Only medication to deal with their anxiety can help and often doctors do not want to sedate a patient. It is a fine line between being a coherent resident with brain capacity and being a physically safe resident with sedation at certain points. You have the right to talk with your elderly's doctor and decide how you want your loved one taken care of. It sounds like the facility did not communicate a care plan with you or explain the different stages your loved one was going through so that you could understand. I am so sorry for this.

There are Adult Community Centers in almost every city/county. You can enroll your loved one in an Adult Day Care program there if you need to live your life too, which you do. Services on an hourly basis are coming up around the country but are few and far between so the government sponsored ones are most common right now. Some offer services that medicare can pay for. I would call medicare or google Elderly drop in care. If your loved one is immobile and cannot get out of bed or go to a drop in care, you can contact hospice to see if they recommend service.

I have worked in the industry and am a licensed RCFE administrator. I am hoping to find solutions for people like yourself. Thank you for sharing your struggle.

A fellow caregiver answered...

The key term here is legally responsible person - ie have you taken legal responsibility under a court or administrative order or agreement to provide care and be legally responsible for the person. It appears that a person is only legally responsible, depending upon state law in your specific state, if they have filed for legal responsibility such as a guardianship, legally have become a paid Personal Care Assistant by a state or federal program for your relative, neglect, abuse, exploitation, or financial responsibility of states that have filial laws.

None of these resources are to be taken as legal advice, and you may want to check the sources listed for the most current information (since some are outdated):

  • States that have laws about Elder Abuse (including neglect by the person themselves), and definitions of these (abuse, exploitation, neglect): http://www.americanbar.org/content/dam/aba/administrative/law_aging/Abuse_Types_Statutory_Provisions_by_State_Chart.authcheckdam.pdf

  • States that have programs that allow a family member to become a Personal Care Assistant (which could put your in a legal responsibility situation): https://www.cga.ct.gov/2003/rpt/2003-R-0040.htm

  • States that have filial laws and what these laws cover (in their basic form): http://www.medicalalertadvice.com/articles/does-state-law-require-you-to-support-you-aging-parent/