2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 5 - Crimes Against the Person
Article 8 - Protection of Elder Persons
§ 16-5-101. Neglect to a Disabled Adult, Elder Person, or Resident

1. A guardian or other person supervising the welfare of or having immediate charge, control, or custody of a disabled adult, elder person, or resident commits the offense of neglect to a disabled adult, elder person, or resident when the person willfully deprives a disabled adult, elder person, or resident of health care, shelter, or necessary sustenance to the extent that the health or well-being of such person is jeopardized.
2. The provisions of this Code section shall not apply to a physician nor any person acting under a physician's direction nor to a hospital, hospice, or long-term care facility, nor any agent or employee thereof who is in good faith acting within the scope of his or her employment or agency or who is acting in good faith in accordance with a living will, a durable power of attorney for health care, an advance directive for health care, a Physician Orders for Life-Sustaining Treatment form pursuant to Code Section 31-1-14, an order not to resuscitate, or the instructions of the patient or the patient's lawful surrogate decision maker, nor shall the provisions of this Code section require any physician, any institution licensed in accordance with Chapter 7 of Title 31, or any employee or agent thereof to provide essential services or shelter to any person in the absence of another legal obligation to do so.
3. The provisions of this Code section shall not apply to a guardian or other person supervising the welfare of or having immediate charge, control, or custody of a disabled adult, elder person, or resident who in good faith provides treatment by spiritual means alone through prayer for the person's physical or mental condition, in lieu of medical treatment, in accordance with the practices of and written notarized consent of the person.
4. A person who commits the offense of neglect to a disabled adult, elder person, or resident of a long-term care facility, upon conviction, shall be punished by imprisonment for not less than one nor more than 20 years, a fine of not more than $50,000.00, or both.

(Code 1981, §16-5-100, enacted by Ga. L. 2000, p. 1085, § 2; Ga. L. 2002, p. 648, § 1; Ga. L. 2007, p. 133, § 6/HB 24; Code 1981, §16-5-101, as redesignated by Ga. L. 2013, p. 524, § 1-1/HB 78; Ga. L. 2015, p. 305, § 4/SB 109.)

- Pursuant to Code Section 28-9-5, in 2002, subsection (c), as added by Ga. L. 2002, p. 648, § 1, was redesignated as subsection (b.1).

- Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: "(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.

"(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.

"(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.

"(d) The General Assembly finds that the clear expression of an individual's decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care."

- For note on 2000 enactment of O.C.G.A. § 16-5-100, see 17 Ga. St. U. L. Rev. 93 (2000).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 16-5-100 are included in the annotations for this Code section.

- In a prosecution under O.C.G.A. § 16-5-100(a) for cruelty to a person 65 years of age or older, evidence of the condition of defendant's home, in which the cruelty occurred, and its residents, as well as defendant's reaction to the love interest's requests for help in caring for the victim, were relevant to defendant's culpability, so the children's physical appearance and the violence toward the girlfriend were relevant and did not impermissibly place defendant's character in evidence. Wood v. State, 279 Ga. 667, 620 S.E.2d 348 (2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1434, 164 L. Ed. 2d 137 (2006) (decided under former O.C.G.A. § 16-5-100).

In a prosecution under O.C.G.A. § 16-5-100(a) for cruelty to a person 65 years of age or older, when the victim, for whom defendant was obligated to provide care, died from neglect, pre-autopsy photographs of the victim's injuries from not being moved from the bed were admissible. Wood v. State, 279 Ga. 667, 620 S.E.2d 348 (2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1434, 164 L. Ed. 2d 137 (2006) (decided under former O.C.G.A. § 16-5-100).

- O.C.G.A. § 16-5-100(a) was enacted to protect susceptible elderly persons from abusive physical and financial exploitation, and in furthering this goal, the statute imposes criminal liability upon a person having supervision or "immediate charge or custody" of an elderly person who willfully fails to provide health care and sustenance to the elderly person; in doing so, the statute does not simply encourage care of a dependent elderly person, it mandates adequate care for the dependent elderly. Wood v. State, 279 Ga. 667, 620 S.E.2d 348 (2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1434, 164 L. Ed. 2d 137 (2006) (decided under former O.C.G.A. § 16-5-100).

- Evidence was sufficient to convict the defendant of felony murder and two counts of cruelty to a person age 65 or older because the defendant was a paid care provider for the victim, a disabled veteran; the Department of Veteran Affairs contracted with an adult daycare facility to provide care and supervision for the victim on weekdays and made arrangements with a transportation service to drive the victim to and from the daycare; the defendant knew that the victim's daycare center was closed on the day the victim died; the temperatures were freezing outside on that day; the defendant refused to allow the victim back into the house; and the victim died from hypothermia due to exposure to freezing temperatures. Smith v. State, 301 Ga. 348, 801 S.E.2d 18 (2017).

- When defendant (1) actively participated in the decision to bring the defendant's love interest's parent into the home from a nursing home, knowing the care the parent required, (2) was an adult member of the household, (3) received a financial benefit from moving the defendant's love interest's mother into the defendant's home, in the form of the parent's Social Security check, (4) participated in the procedure of discharging the parent from the nursing home, and (5) was instructed on how to move the parent in and out of a wheelchair, O.C.G.A. § 16-5-100(a) imposed a duty on the defendant to care for the parent, and defendant could be held criminally liable for failing to perform that duty. Wood v. State, 279 Ga. 667, 620 S.E.2d 348 (2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1434, 164 L. Ed. 2d 137 (2006) (decided under former O.C.G.A. § 16-5-100).

Because the evidence presented against the defendant sufficiently showed that the defendant's mother was in such a debilitated state of being, having been denied food and water for a significant amount of time, having to urinate in a bowl in the living room, was disallowed access to a phone, was not allowed medical care, and found to have had a severe leg infection, that evidence supported the defendant's conviction for cruelty to an elderly person. Bone v. State, 283 Ga. App. 323, 641 S.E.2d 545 (2006), cert. dismissed, 2007 Ga. LEXIS 311 (Ga. 2007); cert. denied, 128 S. Ct. 1711, 170 L. Ed. 2d 520 (2008) (decided under former O.C.G.A. § 16-5-100).

Evidence supported the defendant's convictions for neglect, abuse, and exploitation of three disabled men that the defendant kept locked in the defendant's mother's basement with no sheets, a poorly functioning toilet, and an uncarpeted concrete floor, O.C.G.A. §§ 31-7-12.1,16-5-101,16-5-102; however, as charged, the abuse by deprivation convictions should have been merged with the neglect convictions. Exploitation was shown by the defendant's use of one man's government assistance check for the defendant's own purposes. Hawkins v. State, 350 Ga. App. 862, 830 S.E.2d 301 (2019).