Available Protections

Elder Bill of Rights.   Section 102 of the Texas Human Resources Code sets out the rights of the elderly.  A person providing services to the elderly cannot deny an elderly individual a right that is guaranteed under Section 102 and must provide each elderly individual in their care with a written list of the individual’s rights and responsibilities.  The rights granted to the elderly are the following:

1. Right to Be Free to Exercise Civil Rights Under the Law. An elderly individual has all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of Texas, except where lawfully restricted. The elderly have the right to be free of interference, coercion, discrimination, and reprisal in regards to exercising these rights.
2. Right to Dignity and Respect. An elderly individual has the right to be treated with dignity and respect for the personal integrity of the individual, without regard to race, religion, national origin, sex, age, disability, marital status, or source of payment.  The right of dignity and respect means that the elderly individual has the right to make the individual’s own choices regarding their personal affairs, care, benefits, and services, the right to be free from abuse, neglect, and exploitation, and if protective measures are required, the right to designate a guardian or representative to ensure the right to quality stewardship of the individual’s affairs.
3. Right to Be Free from Physical and Mental Abuse. Physical abuse includes corporal punishment and physical or chemical restraints that are administered for purposes of discipline or convenience and not required to treat an individual’s medical symptoms. Physical or chemical restraints can only be used if authorized by a physician in writing or if the use is necessary in an emergency to protect the elderly individual or others from injury. A physician’s written authorization for use of restraints must specify the circumstances under which the restraints may be used and the duration of such use.
4. Right to Participate in Behavior Modification Program. An elderly individual with an intellectual disability who has a court-appointed guardian may participate in a behavior modification program involving the use of restraints or adverse stimuli with the informed consent of the guardian.
5. Right to communicate in the individual’s native language with other individuals or employees for the purpose of acquiring or providing any type of treatment, care, or services.
6. Right to Communicate and Complain Regarding Treatment, Care, or Services. A complaint by an elderly person may be made anonymously or communicated by a person designated by the elderly individual. The person providing the services must promptly respond to resolve the complaint and may not discriminate or take punitive action against an elderly individual that makes a complaint.  A nursing home must have an effective procedure for receiving complaints from elderly people and for responding to those complaints. If a person complains about poor care, or if a family member speaks up about poor conditions at a facility, it is a violation of this law for the nursing home, or any of its employees, to intimidate or retaliate in any way against the resident or the family.
7. Right to Privacy. An elderly individual is entitled to privacy while attending to personal needs and a private place for receiving visitors or associating with other individuals unless providing privacy would infringe on the rights of other individuals.  The right to privacy applies to medical treatment, written communications, telephone conversations, meeting with family, and access to resident councils. The right to privacy also means that a person may send and receive unopened mail and that it will be sent and delivered promptly. Further, if an elderly individual is married and the spouse is receiving similar services, the couple may share a room.  Sometimes a nursing home or other residential provider will try to exclude visitors who advocate on behalf of the elderly person or who might otherwise challenge the facility’s control. While other residents’ rights must also be considered (loud, boisterous visitors might be asked to leave, for example), a nursing home or other facility cannot use this as a pretext for excluding visitors the resident wishes to meet with.
8. Right to Participate in Activities. An elderly individual may participate in activities of social, religious, or other community groups unless the participation interferes with the right of the other person.
9. Right to Manage Financial Affairs. An elderly person may manage his or her own personal financial affairs or may authorize another person to do so in writing. The elderly individual may choose the manner in which his or her money is managed by another person, and may choose the least restrictive method, such as a money management program, a representative payee program, a financial power of attorney, or a trust or other similar method. A person designated to manage an elderly’s financial affairs must comply with all applicable policies, laws, and rules. On request, the designated person shall make available the related financial records and provide an accounting of the money. Designating a person to manage their money does not affect an elderly person’s ability to exercise other rights. However, if an elderly person has a guardian designated by a court, the guardian shall manage the person’s money in accordance with the Probate Code and other applicable laws.
10. Right to access and confidentiality of records. An elderly individual is entitled access to the individual’s personal and clinical records.  These records are confidential and may not be released without the elderly individual’s consent, except the records may be released to another person providing services at the time the elderly individual is transferred or if the release is required by another law.
11. Right to Information Regarding Medical Condition. A person providing services shall fully inform an elderly individual, in a language that they understand, of the individual’s total medical condition and shall notify the individual when there is a significant change in medical condition.
12. Right to Choose and Retain a Personal Physician. An elderly individual may choose and retain a personal physician and is entitled to be fully informed in advance about treatment or care that may affect the individual’s well-being.
13. Right to Participate in an Individual Plan of Care. An elderly individual has the right to participate in an individual plan of care that describes the individual’s medical, nursing, and psychological needs and how those needs will be met.
14. Right to Refuse Medical Care. An elderly individual may refuse medical treatment after the elderly individual is advised by the person providing services of the possible consequences of refusing treatment and acknowledges that the individual clearly understands the consequences of refusing treatment.
15. Right to Retain and Use Personal Possession. An elderly person may retain and use personal possessions, including clothing and furnishings, as space permits.
16. Right to Refuse to Perform Services. An elderly individual may refuse to perform services for the person providing services.
17. Right to Information About Benefits. Not later than the 30^th day after an elderly individual is admitted for service, a person providing services shall inform the individual whether the individual is entitled to benefits under Medicare or Medicaid and which items and services are covered by these benefits, including items or services for which they may not be charged.
18. Right to Remain with Chosen Service Provider. A service provider may not transfer or discharge an elderly person unless the transfer is for the person’s welfare, and the person’s needs cannot be met by the service provider; the person’s health is improved sufficiently so that services are no longer needed; the person’s health and safety or the health and safety of others would be endangered if the transfer or discharge was not made; the service provider ceases to operate or to participate in the program that reimburses the service provider for the person’s treatment or care; or the person fails, after reasonable and appropriate notices, to pay for services. Except in an emergency, a service provider may not transfer or discharge an elderly person from a residential facility until 30 days after the service provider gives written notice to the person, the person’s legal representative, or a member of the person’s family stating that the service provider intends to transfer or discharge the person, the reason for the transfer or discharge, the effective date of the transfer or discharge, if the person is to be transferred, the location where the person will be transferred, and the person’s right to appeal the action and to whom the appeal should be directed.
19. Rights to Make Other Legal Decisions and Documents. An elderly individual may make a living will, execute a medical power of attorney, or designate a guardian in advance of the need to make decisions regarding the individual’s health care should the individual become incapacitated.

Protection against Elder Exploitation. In cases of suspected exploitation from within the family, the investigation will hinge almost entirely on the cooperation of the senior.  In many cases, the elderly individual may be hesitant to reveal exploitation or abuse by the family members. This reluctance is often attributed to a fear of retaliation, a desire to keep peace in the family, or embarrassment. If a case manager has reason to believe exploitation is occurring, APS must notify the appropriate law enforcement authority and provide a copy of the investigation report.  In addition to notifying law enforcement, a caseworker has a wide array of tools to deal with financial exploitation, including taking control of bank accounts and administering a sufficient allowance to the exploited senior for basic provisioning per his or her needs.  If family members continue to misappropriate money, the caseworker may administer a type of debit card to prevent the transfer of cash from the elder to the predator.

Emergency Order Authorizing Protective Services.  The caseworker can petition the probate or statutory or constitutional court that has probate jurisdiction in the county for an emergency order authorizing protective services, if the caseworker determines that the elderly person is suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety, that the elder lacks the capacity to consent to receive protective services, and that no consent can be obtained.  A senior lacks capacity to consent to receive protective services if, because of mental or physical impairment, the senior is incapable of understanding the services offered and agreeing to receive or rejecting protective services. The petition shall be verified and shall include (1) the name, age, and address of the elderly person or person with a disability who needs protective services; (2) the nature of the abuse, neglect, or exploitation; (3) the services needed; and (4) a medical report signed by a physician stating that the person is suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety and stating that the person is physically or mentally incapable of consenting to services unless the court finds that an immediate danger to the person’s health or safety exists and there is not sufficient time to obtain the medical report. On finding that there is reasonable cause to believe that abuse, neglect, or exploitation presents a threat to life or physical safety for the elderly person or person with a disability and that the person lacks the capacity to consent to services, the court may: (1) order removal of the person to safer surroundings, (2) order medical services, and (3) order other available services necessary to remove conditions creating the threat to life or physical safety, including the services of law enforcement officers or emergency medical services personnel.

Referral to the Department of Aging and Disability Services.  An APS caseworker that has reason to believe the elder is an incapacitated person, and that the elder is in a state of abuse, neglect, or exploitation, can refer the elder to the Department of Aging and Disability Services for guardianship.