New York Police Officer Sued for Welfare Check on Senior, But Does That Mean You Shouldn’t Call?

By Stephen J. Silverberg
New York Elder Law Attorney

This is a disconcerting case we believe illustrates how communication between siblings regarding elderly parents can go awry – and the consequences that result.  At its essence: a police officer whose sole concern was the well-being of an elderly dementia patient was accused of violating the civil rights of the adult children the elderly man lived with.

The judge who heard the case agreed that the search was permissible, as lives or health could have been at stake. The case, reported in The New York Law Journal“Officer’s Welfare-Check on Elderly Man Is Shielded by Immunity, Court Says,” reports that the judge said the police officer was protected by his good faith actions in responding to an emergency.

He had qualified immunity from a suit filed by the owners of the home he entered, in alleged violation of residents’ Fourth Amendment rights to privacy. The judge said that even if Buccilli’s beliefs that his actions were justified in entering the home were based on wrong assumptions, the officer’s actions weren’t so “plainly incompetent” as would qualify as a violation of the resident’s Fourth Amendment rights.

The judge said “…no one has pointed this court to any controlling case that clearly establishes the answer to this question: When performing a welfare check on an individual in response to a request from adult protective services (or a similar agency), may a police officer enter a location to determine the welfare of that individual?”

Buccilli was called to the Buffalo area home of the Batt family. LuAnn was the daughter of the elderly Fred Puntoriero, whom the family had taken in after he was diagnosed years earlier with dementia.

Fred’s daughter-in-law called the local Adult Protective Services in April 2012, complaining that she and her husband hadn’t been permitted to see Fred for several weeks. They were concerned about his condition. Fred’s son (Joe) and daughter (LuAnn) each had power of attorney over their father, according to the ruling.

Adult Protective Services made a 911 call to Buccilli the next day. Joe didn’t want to let the officer in, but Buccilli followed Joe through a side door and found wheelchair-bound Fred inside the home. Fred looked well-groomed and well-fed. He could identify himself, and an Adult Protective Services case worker later confirmed that Fred was under hospice care and was receiving good care. Fred died later in 2012, at age 76.

The entire matter could have been resolved with far less trouble if the children were in communication with each other.

About the Author
Stephen J. Silverberg is nationally recognized as a leader in the areas of estate planning, estate administration, asset preservation planning, and elder law. He is a past president of the prestigious National Academy of Elder Law Attorneys (NAELA), and a founding member and past president of the New York State chapter of NAELA.