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Sadly nursing homes sometimes fail in their duty to care for their residents and millions of seniors suffer abuse or neglect each year. If your parent is one of them, you’ll want to know what action you can take.

Unfortunately, the legal process takes time and if your parent then passes away for a reason unrelated to the abuse you might be left uncertain about what your options are.

Their passing doesn’t erase the previous abuse or neglect but can complicate legal proceedings if you want to continue the case against their nursing home.

This article covers how surviving family members can pursue justice for the abuse of an elderly loved after they have passed away.

Criminal cases

Families can report criminal abuse to the authorities, including the police, administrators of the nursing home, and long-term care ombudsmen.

If your parent suffered abuse or neglect, you have a right to report that to authorities, even if your parent is no longer living.

It’s then up to prosecutors to determine whether or not to pursue a case against the nursing home. Grounds for a criminal case can include:

If the case proceeds, you may be called upon to testify during the trial.

Victims and their families are not awarded damages in a criminal case, instead successful criminal cases can result in financial penalties for the nursing home and criminal charges for the individuals responsible.

Laws differ from state to state and vary based on the crime committed, but most do not place a strict statute of limitation on criminal cases.

Civil cases

Though unacceptable, not all cases of nursing home abuse and neglect are considered criminal.

In these cases victims and their families have the option to pursue a civil case against a nursing home responsible for neglect or abuse.

This is the case even if the abuse or neglect in question was not directly responsible for your parent’s death.

A civil case is independent of a criminal case. Whether authorities decide to pursue criminal charges or not, the victim and family still have the option to speak with an attorney about seeking civil damages.

If you are pursuing a civil case against a nursing home, Arizona has a two-year statute of limitations. This means plaintiffs, whether the victims or their families, have two years to file a civil case seeking damages for neglect or abuse. You can read our guide on statute of limitations to find out more.

Different types of civil cases against nursing homes include:

  • Tort lawsuit. A tort lawsuit is pursued in the case of civil damages, including nursing home abuse and neglect. Wrongful death and malpractice lawsuits fall under this umbrella as well.
  • Breach of contract. Victims of nursing home abuse and their families can also pursue a breach of contract case against a nursing home. Nursing home liability insurance is not likely to cover breach of contract, which means any compensation would need to come directly from the nursing home.

If you are planning to seek damages, whether your parent is living or not, take into account the date on which the abuse or neglect was discovered.

Who is the plaintiff in a nursing home abuse case?

The plaintiff is the person who initiates the lawsuit.

If living and able, your parent is likely to be the plaintiff in the case.

Unfortunately, in many cases, nursing home residents are not physically or mentally able to pursue an abuse case.

Sadly, elderly patients may also not live long enough to pursue an abuse case themselves.

In these cases, the children of parents who have suffered abuse in a nursing home can file a lawsuit on their behalf in a couple of different ways.

Power of attorney and guardianship

When your parent cannot speak for themselves or has passed away, a family member likely needs to step up to file the lawsuit on their behalf.

Children of an elderly parent can sue on their behalf if they have power of attorney or guardianship over their parent.

  • Power of attorney: Power of attorney allows a designated person, often a family member, to make certain decisions on behalf of someone else. Power of attorney covers a wide range of matters, including healthcare and finances. If you helped to place your parent in a nursing home, it is possible you have already undergone the process of gaining power of attorney.
  • Guardianship: Gaining guardianship of a parent is a longer process that involves going through the court system. You may need to opt for guardianship if your parent did not designate power of attorney prior to becoming incapacitated.

Power of attorney and guardianship empower you to pursue legal action on your parent’s behalf while they are living. But, what happens if your parent dies?

When a parent dies

When your parent dies, power of attorney and guardianship dissolve. This means you cannot use that authority to file a lawsuit on his or her behalf.

The death of a parent is overwhelming, whether unexpected or not. The surviving family members will have a number of different things they need to do to manage their loved one’s affairs.

You will need to take into consideration your parent’s will, as well as any outstanding debt and taxes.

If your parent’s spouse, either your other parent or a step parent, is still living, he or she can opt to pursue a case.

The executor of your parent’s estate, whether a relative or not, also has the option to pursue a civil case.

Executor of the estate

Your parent may have designated an executor of his or her estate before passing away. The executor of an estate is responsible for managing a deceased person’s affairs, including taxes, debts, and the will.

As a close family member, you may have been selected, while some people opt to select an attorney to serve as executor of their estate.

If your parent died without naming an executor, the courts can appoint one. In these cases the surviving spouse or an adult child is often selected.

The legal aspects and emotional toll of a death in the family take time to handle. You need time to open an estate, make proper arrangements, and mourn. The timeline for every family is different, but you need to keep in mind that the statute of limitations still applies.

Wrongful death or Survival Action?

If your parent died as a direct result of neglect or abuse in a nursing home, the surviving family can pursue a wrongful death case.

In other cases, your parent’s death may not be related to the abuse or neglect they suffered. This does not lessen the impact of that wrongdoing. In these circumstances, the victim’s estate can take survival action.

Survival action allows the executor of the deceased person’s estate to seek compensation for abuse or neglect the victim experience while living. A settlement awarded in a survival action case could cover damages that occurred from the point of injury until your parent’s death.

Any proceeds from a survival action settlement go directly to the deceased person’s estate.

Your parent’s estate will be used to cover any outstanding debts and then distributed to the beneficiaries of his or her will.

You, your siblings, and a surviving spouse may all be beneficiaries, depending on your parent’s decision on how to divide assets.

Frequently asked questions

Nursing home abuse and neglect does not always lead to death, but it often severely affects the quality of your parent’s remaining life.

If your parent passes away without seeking recourse for that pain and suffering, you are probably left with a lot of questions.

What is considered a wrongful death?

If your parent dies in a nursing home following abuse or neglect, you can discuss the possibility of pursuing a wrongful death suit. Wrongful death can result from negligence or intentional abuse by another party.

Failure to provide adequate medical care or physical abuse that results in the death of your parent are certainly grounds to explore a wrongful death case. If your parent has died in a nursing home, you can discuss options for filing a wrongful death case with your lawyer.

Can I use the power of attorney to sue on behalf of my parent?

Power of attorney allows you to sue on behalf of a living parent.

Power of attorney ends when your parent passes away.

If you want to explore filing a case against a nursing home following your parent’s death, you will need to consider wrongful death or survival action.

How long do I have to file an abuse claim after my parent dies?

Your parent’s estate has a limited amount of time to pursue survival action against the nursing home responsible for the abuse or neglect. Arizona Revised Statute 14-3109 dictates the statute of limitations on survival cases.

If you are planning to file a survival claim, it is best to speak with a lawyer as soon as possible to understand your options and how quickly the executor of the deceased’s estate needs to move forward with filing the case.

When should I consider survival action?

Survival action is the main course of action for families seeking damages related to abuse or neglect that did not directly lead to the death of a deceased elderly family member.

For example, your parent may have suffered neglect, allowing them to fall and break a bone. That break could require surgery and undoubtedly caused a lot of pain. After the fall, your parent could die of an unrelated cause, such as heart failure.

The executor of the deceased’s estate can still pursue damages for the result of the neglect through survival action.

Who receives the proceeds of a survival settlement?

Any proceeds from a survival case settlement do not go directly to the deceased’s surviving family members.

Instead, the settlement is transferred to the deceased victim’s estate. If you are a beneficiary of your parent’s estate, you may receive a portion of the settlement via your inheritance.

Sources:

  1.   https://www.nursinghomeabuse.org/nursing-home-abuse/statistics/
  2.   https://www.nursinghomeabusecenter.com/legal/statute-limitations/
  3.   https://www.nursinghomeabusecenter.com/legal/cases/#content-heading-1
  4.   https://injury.findlaw.com/torts-and-personal-injuries/nursing-home-abuse-case-basics.html
  5.   https://www.nursinghomeabusecenter.com/nursing-home-abuse/reporting-nursing-home-abuse/
  6.   https://ltcombudsman.org/about/about-ombudsman
  7.   https://injury.findlaw.com/torts-and-personal-injuries/is-nursing-home-neglect-legal.html
  8.   https://injury.findlaw.com/torts-and-personal-injuries/nursing-home-abuse-faq.html

9.https://bja.ojp.gov/sites/g/files/xyckuh186/files/Publications/NCSC-Prosecuting-Elder-Abuse-Cases-Basic-Tools-and-Strategies.pdf

  1. https://www.cga.ct.gov/2007/rpt/2007-R-0243.htm
  2. https://www.nursinghomeabusecenter.com/nursing-home-neglect/

12.https://www.nursinghomeabusecenter.org/types-of-nursing-home-abuse/physical-abuse-assault/

  1. https://eldermistreatment.usc.edu/wp-content/uploads/2018/09/Consumer-Voice_sexual-abuse-issue-brief-FINAL.pdf

14.https://www.naela.org/NewsJournalOnline/OnlineJournalArticles/OnlineOct2018/TortLaw.aspx

  1. https://www.nursinghomeabusecenter.com/legal/lawsuits/
  2. https://injury.findlaw.com/torts-and-personal-injuries.html
  3. https://www.nursinghomeabusecenter.org/what-to-do/legal-action/
  4. https://www.nursinghomeabusecenter.org/glossary/plaintiff/

19.https://www.mallardlawfirm.com/blog/survivor-rights-following-a-nursing-home-wrongful-death.cfm

  1. https://www.5pointslaw.com/blog/when-a-nursing-home-will-not-take-your-power-of-attorney
  2. https://caringpeopleinc.com/blog/how-to-get-power-attorney-elderly-parents/
  3. https://www.agingcare.com/articles/how-to-get-guardianship-of-elderly-parents-140693.htm
  4. https://www.nerdwallet.com/blog/investing/springing-durable-power-attorney/
  5. https://www.lawhelp.org/dc/resource/guardianship-and-conservatorship-frequently-a

25.https://triallawyerstexas.com/2017/02/16/what-type-of-documentation-is-necessary-to-sue-on-behalf-of-a-deceased-persons-estate/

  1. https://www.nolo.com/legal-encyclopedia/question-power-of-attorney-still-valid-28322.html
  2. http://www.uslaw.org/files/public/arizona.pdf

28.https://jacobsinjurylaw.com/2019/11/29/who-can-file-a-lawsuit-against-a-nursing-home-for-neglect/

  1. https://www.legalmatch.com/law-library/article/how-to-become-an-executor-of-an-estate.html
  2. https://www.nursinghomeabusecenter.org/glossary/survival-action/
  3. https://lambergoodnow.com/phoenix/wrongful-death-lawyer/
  4. https://www.estateplanning.com/What-Exactly-Happens-to-an-Estate-After-a-Person-Dies/
  5. https://injury.findlaw.com/torts-and-personal-injuries/wrongful-death-overview.html
  6. https://www.azleg.gov/ars/14/03109.htm
  7. http://www.uslaw.org/files/public/arizona.pdf
  8. https://www.scottsdaleinjurylawyers.com/personal-injury/survival-actions/
  9. https://www.thebalance.com/executor-executrix-3505523

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