We all saw the horrible story out of Houston this week. Brenda Trahan Floyd, a caregiver from Care.com, was seen beating a 94-year-old woman. And not just any elderly woman, but the woman who was paying her to take care of her. Absolutely unbelievable. Unfortunately, this scene plays out too often. Thankfully in this case the family obtained proof of the abuse through a camera. So how can you protect your parent from elder abuse without breaking the law? What are you allowed to do in a Houston nursing home to protect them?
Let’s break it down.
A Hidden or Visible Camera?
There are two kinds of monitoring you can do when your parent is in an institution. There is authorized monitoring and covert monitoring. With covert monitoring, you do not notify the institution of the camera or other device. While it may sound tempting, it does create some legal pickles I advise people to avoid. You can avoid those problems by following the Authorized route.
The Authorized monitoring can also be a better deterrent to elder abuse. This is because it is out in the open. Covert monitoring can result in your parent suffering so you can get evidence of the crime.
Who Makes The Request?
If your parent has legal capacity, they are the only one who may request authorized monitoring. This is the case, notwithstanding the terms of any durable power of attorney. If a court judicially declared that your parent lacks capacity, then they cannot make the request.
If a court has declared your parent lacks legal capacity, then only your parent’s legal guardian may request electronic monitoring.
But what about if they have borderline capacity and there is no guardianship? If your parent does not have capacity to request electronic monitoring but a court has not declared them lacking capacity, only the legal representative of the resident may request electronic monitoring.
The Form To Use
Your parent, guardian, or legal representative must make the request on the proper form. The Department of Aging and Disability Services created the form. It does more than simply give you permission, it also includes some significant other provisions. Those provisions are:
That form requires you to:
- release the institution from any civil liability for a violation of the resident’s privacy rights in connection with the use of the electronic monitoring device;
- choose whether the camera will always be unobstructed or whether the camera should be obstructed in specified circumstances to protect the dignity of the resident; and
- obtain the consent of other residents in the room, using the form created by DADS.
You Must Obtain Consent
When your parent has a roommate, you must get their consent. The Authorized monitoring statute may not protect you if you don’t complete this crucial step. The requirements for who can give consent are like the rules for who can request permission to put in a camera.
If the other resident or residents in the room have mental capacity, then they are the only ones who can give consent. However, if they do not have capacity but a court has not declared them lacking capacity, then their legal representative can do it. If a court has declared them incompetent, then only their Guardian can give consent.
You must get the proper consent or you could be the one on the wrong end of the law. Do not skip or get cute with this requirement. Do it right or someone else’s lawyer may come after you.
The other resident in the room can place conditions on their consent. For example, they can require you point the camera away from them. They can also place conditions limiting or prohibiting the use of audio monitoring equipment. For example, when they have visitors they may not want every conversation on tape controlled by someone else.
What The Nursing Home Can’t Do
The nursing home cannot stop you from using a camera to protect your parent from elder abuse.
The nursing home may not refuse to admit your parent because you request to conduct authorized electronic monitoring. Similarly, they can’t remove a resident from the institution because you requested monitoring. Even if you go the covert route, the nursing home still cannot remove a resident because of the covert monitoring.
The nursing home also can’t refuse to make reasonable physical accommodation for authorized electronic monitoring, including:
- providing a reasonably secure place to mount the video surveillance camera or other electronic monitoring device; and
- providing access to power sources for the video surveillance camera or other electronic monitoring device.
What The Nursing Home Can Do
A facility may require you install the electronic monitoring device in a manner that is safe for residents, employees, or visitors who may be moving about the room.
The nursing home will require you to post and maintain a conspicuous notice at the entrance to the room. The notice must state that the room is being monitored by an electronic monitoring device.
The nursing home can require you to conduct the electronic monitoring in plain view. This is for authorized monitoring.
The nursing home may but is not required to place a resident in a different room to accommodate a request to conduct authorized electronic monitoring.
You must pay for all costs of the monitoring, other than electricity. You are also responsible for all costs associated with installation of equipment; and maintaining the equipment.
Now You Can Turn on The Camera
You can’t turn on the camera until you’ve completed all the steps above. Specifically, complete all request and consent forms and return them to the institution and post the notices on the door. Even after all that, you must honor any limitations a roommate required to get their consent.
If You Need it for Elder Abuse Evidence
You might think you can use every action your camera captures in court to prosecute the criminal. You would be wrong though. If you are using a camera with the goal of creating evidence you can use in court, then the video itself must meet specific requirements.
These requirements apply to covert and authorized monitoring.
- The tape or recording must show the time and date that the events acquired on the tape or recording occurred;
- You cannot edit or artificially enhance the contents of the tape or recording; and
- If you change the format of the recording, the transfer must be done by a qualified professional and the contents of the tape or recording were not altered.
We’ve covered all the main requirements for you to protect your parent from nursing home elder abuse using authorized cameras. Like I mentioned earlier, there is a covert option but I don’t recommend it except in very specific cases. The conspicuous route is generally an effective deterrent and gives you more protection from adverse legal consequences.
Please use and share this information so we can do a better job of protecting our seniors from elder abuse, one family at a time. If you suspect anything contact the authorities and your elder law attorney immediately.
If you have a question that I didn’t cover feel free to ask it in the comments below and we can continue the discussion.