Elder Abuse Lawyer: What They Do and How They're Paid
How an elder abuse lawyer differs from an elder law attorney, how contingency fees and state fee awards work, and what to bring to the first consultation.
An elder abuse attorney is a litigator who sues the caregiver, home care agency, nursing home or other party that harmed an older adult. These lawyers usually work on a contingency fee, so the family pays no fee unless there is a recovery. The percentage is set in a written fee agreement and can be negotiated.
Elder Abuse Lawyer vs Elder Law Attorney
An elder abuse lawyer files lawsuits for money damages. An elder law attorney handles planning work such as wills, trusts, Medicaid eligibility, powers of attorney and guardianship. If an older adult was abused, neglected or financially exploited, the elder abuse lawyer is the one who sues. Some firms do both kinds of work.
| Question | Elder Abuse Lawyer | Elder Law Attorney |
|---|---|---|
| Main job | Litigator who sues for damages | Handles planning matters |
| Typical matters | Physical, emotional or sexual abuse, neglect, abandonment, financial exploitation, nursing home and home care claims | Wills, trusts, Medicaid eligibility, powers of attorney, guardianship |
| Pick this lawyer when | An older adult was harmed and the family wants compensation | The family needs wills, trusts, Medicaid eligibility planning, powers of attorney or guardianship |
Elder abuse includes physical, emotional and sexual abuse, neglect, abandonment and financial exploitation. Neglect means a caregiver failed to provide food, water, hygiene, medication, supervision or medical care. Florida, for example, lets a vulnerable adult who was abused, neglected or exploited sue for damages under Fla. Stat. § 415.1111.
An elder abuse lawyer is the wrong hire when nobody was harmed and the family needs a will, a Medicaid plan or a power of attorney. Hire an elder law attorney for that work. The choice of lawyer can also change when the harm came from a licensed provider's medical judgment. In some states that makes the case medical malpractice, with its own expert rules, damage caps and deadlines. Read about medical malpractice claims if nursing care or a medication decision by licensed staff caused the harm.
How Elder Abuse Lawyers Are Paid
Elder abuse lawyers usually charge a contingency fee, which is a percentage of the recovery with no fee if there is no recovery. The percentage goes in a written fee agreement. It is negotiable. Learn how a contingency fee agreement works before you sign one.
Case costs are separate from the fee. Costs include filing fees, medical records, expert witnesses and depositions. The fee agreement should say whether costs come out before or after the fee is calculated. It should also say whether the client owes costs if the case is lost.
Some state laws let a court order the defendant to pay attorney fees. Others limit what a lawyer can charge. The rules below come from specific states and case types.
| Rule | When It Applies | What It Does |
|---|---|---|
| Cal. Welf. & Inst. Code § 15657 | Physical abuse or neglect proven by clear and convincing evidence, with recklessness, oppression, fraud or malice | Court awards reasonable attorney fees and costs; the usual pain-and-suffering limit after death does not apply |
| Cal. Welf. & Inst. Code § 15657.5 | Financial abuse proven by a preponderance of the evidence | Court awards attorney fees |
| Fla. Stat. § 415.1111 | A vulnerable adult was abused, neglected or exploited | Attorney fees are available |
| Florida Bar Rule 4-1.5(f)(4)(B) | Personal injury and wrongful death cases in Florida | Standard maximum of 33 1/3% of a recovery up to $1 million if the case settles before the defendant answers or the time to answer expires; 40% up to $1 million after that |
| Cal. Bus. & Prof. Code § 6146 | Medical malpractice in California | 25% if settled before suit is filed, 33% after |
| N.Y. Judiciary Law § 474-a | Medical malpractice in New York | Sliding scale from 30% of the first $250,000 down to 10% above $1,250,000 |
California's fee-award rules in § 15657 and § 15657.5 come from the Elder Abuse and Dependent Adult Civil Protection Act. The act defines an elder as a California resident age 65 or older. Florida's bar rules set lower percentages on recoveries above $1 million. Ask the lawyer how a court fee award would interact with the percentage in your agreement. If the older adult died, see how wrongful death lawyer fees are set.
What an Elder Abuse Attorney Does
An elder abuse attorney builds the case and sues the parties responsible. In a neglect case, negligence has four elements: a duty of care, a breach of that duty, causation and damages. The lawyer gathers proof for each element.
The lawyer also decides who can be sued. An employer is generally liable for negligence by employees acting within the scope of their employment. A home care agency or nursing home can also be directly liable for negligent hiring, training, supervision or retention of a worker. Skipping a background check is one example of negligent hiring. A caregiver placed by a referral registry may be an independent contractor, and that can change who is liable. The rules vary by state.
Licensing and inspection findings can serve as evidence. Nursing homes that take Medicare or Medicaid must meet federal rules in 42 C.F.R. Part 483. Those rules include preventing bedsores unless clinically unavoidable and keeping residents free from abuse and neglect. Inspection results and deficiency citations for those homes are published on Medicare's Care Compare.
Home care licensing is set by each state. Operating without a required license violates state law and can be used as evidence in a negligence case. An unlicensed operator may also lack liability insurance, which can make collecting a judgment harder.
A 2019 federal rule limits arbitration agreements in nursing homes. A nursing home in Medicare or Medicaid cannot require one as a condition of admission. A resident can rescind a signed agreement within 30 calendar days. Assisted living agreements fall outside that federal rule and may still be enforced, depending on the document and state law.
Almost every malpractice claim needs a qualified medical expert. Many states also require a step before suit. California requires 90 days' notice of intent to sue a health care provider. Texas requires an expert report within 120 days after each defendant's original answer is filed.
If the older adult died, the lawyer can bring a wrongful death claim for the family and a survival action for the estate. Deadlines vary by state. California, Texas and New York allow 2 years from the date of death, and Tennessee allows 1 year. Confirm the current deadline on the wrongful death statute of limitations page. If a government body is the defendant, a notice of claim may be due within months.
What to Bring to the First Consultation
Bring every record that shows what happened, when it happened and who was responsible for care. Items that commonly matter include:
- Photos of injuries and living conditions
- Medical and hospital records
- The agency's or facility's care plan and visit or shift logs
- Medication records and incident reports
- Adult Protective Services (APS) or police reports
- State inspection or licensing findings
- Texts and emails with the caregiver or facility
- Bank records, if money was taken
- Names of witnesses
If someone is in immediate danger, call 911. Abuse, neglect and exploitation can be reported to APS, and most states let you report without giving your name. The Eldercare Locator at 1-800-677-1116 connects callers to local agencies, including APS. For nursing home and assisted living complaints, contact your state's Long-Term Care Ombudsman. See how to report elder abuse for each reporting option.
For elder financial abuse, also report to the bank and local police. Fraud can go to the U.S. Department of Justice National Elder Fraud Hotline at 1-833-FRAUD-11 (1-833-372-8311).
When the records are together, you can describe what happened and get matched with a lawyer who handles elder abuse cases, free and with no obligation to hire.
Questions to Ask an Elder Abuse Attorney
The consultation is your chance to judge whether the lawyer fits the case. Ask these questions before signing a fee agreement:
- How many cases like this one have you handled?
- Who will work on the case day to day?
- What is the fee percentage, and is it negotiable?
- Are costs taken out before or after the fee is calculated?
- Do I owe costs if the case is lost?
- Will you file a lawsuit if the case does not settle?
- How will you keep me updated?
- Does a state fee-shifting law apply, such as Cal. Welf. & Inst. Code § 15657 or Fla. Stat. § 415.1111?
Talk with more than one lawyer if time allows. Ask for any unclear cost terms to be written into the agreement before you sign.
Who Can Hire an Elder Abuse Lawyer
The older adult can hire an elder abuse lawyer directly. A court-appointed guardian or conservator, or an agent under a power of attorney, can bring the case on the older adult's behalf. After death, the estate's personal representative brings the survival claim and the family brings the wrongful death claim, subject to state law.
Who may file for wrongful death varies by state. In New York, the personal representative of the estate files for the family's benefit. California lets the spouse or domestic partner, children and others who would inherit under intestacy file. In Texas, the spouse, children and parents may file. If none of them files within three months of the death, the executor or administrator may file. The executor or administrator cannot file if all of them ask that no suit be brought.
Survival money goes to the estate and can be reached by the estate's creditors. Wrongful death money goes to the family members the statute names. See survival action vs wrongful death for how the two claims split. Some states require a court to approve these settlements, and a minor's settlement generally needs court approval.
Frequently Asked Questions
What do elder abuse attorneys do?
Elder abuse attorneys sue the caregivers, home care agencies, nursing homes and other parties that harmed an older adult. The work includes gathering records, using licensing and inspection findings, retaining experts when needed and filing suit. If the older adult died, the attorney can bring wrongful death and survival claims.
How much does an elder abuse lawyer cost?
Elder abuse lawyers usually charge a contingency fee, a percentage of any recovery set in a written agreement. Case costs such as filing fees, medical records and expert witnesses are separate from the fee. In Florida, the standard maximum is 33 1/3% of a recovery up to $1 million if the case settles before the defendant answers or the answer deadline passes. It rises to 40% of a recovery up to $1 million after that.
Do elder abuse lawyers work on contingency?
Yes, elder abuse lawyers usually work on contingency. There is no fee if there is no recovery. The percentage is negotiable and goes in the written fee agreement. Some laws, such as Cal. Welf. & Inst. Code § 15657, also let the court award attorney fees against the defendant.
When should I hire an elder law attorney instead?
Hire an elder law attorney for planning work such as wills, trusts, Medicaid eligibility, powers of attorney and guardianship. If an older adult was harmed and the family wants damages, an elder abuse lawyer is the right hire. Some firms handle both kinds of work.
Can a family member hire a lawyer for an abused parent?
A family member can bring the case when the family member holds legal authority, such as a guardianship, conservatorship or power of attorney. Otherwise the parent hires the lawyer directly. After the parent's death, the estate's personal representative and the family can bring claims, subject to state law.
Not sure where you stand?
Check your eligibility in under 2 minutes — free, private, and no commitment required.