It isn’t often that the folks on the United States Supreme Court talk about the elderly falling at home, but that is exactly what happened in a recent opinion.
What is a Wellness Check?
A wellness, or welfare, check is when police go by a person’s home to check that person’s well-being. To define the issue, we turn to the example given by Justice Kavanaugh: “Suppose that an elderly man is uncharacteristically absent from Sunday church services and repeatedly fails to answer his phone through the day and night. A concerned relative calls the police and asks the officers to perform a wellness check. Two officers drive to the man’s home. They knock but receive no response. May the officers enter the home? Of course.”
Justice Kavanaugh was writing in his concurrence to an opinion by the Court about the Fourth Amendment and a warrantless search and seizure. The opinion held that police officers who received a report that a man was suicidal, and then entered the man’s home on a welfare check, could not later remove that man’s firearms from the premises.
Entering a home without a warrant is typically a violation of the Fourth Amendment. The Court noted “The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The very core of the guarantee is the right of a man to retreat into his own home and be free from unreasonable governmental intrusion.”
But.
The courts have carved out some exceptions to the Fourth Amendment. They have found that some governmental intrusions are considered reasonable, such as when there is a need to assist someone seriously injured or threatened with injury, or when the action is the same as a private person could take. In those cases, an officer can enter the home without having a search warrant.
Unfortunately, the First Circuit Court of Appeals pushed the boundaries of the Fourth Amendment exception and created a broad category called “community caretaking,” which basically included any non-law-enforcement work that the community cared to define. It decided that the police were justified in taking the firearms because they were merely operating under community caretaking.
All 9 Supreme Court Justices agreed that was just a step too far. There is no general caretaking doctrine that justifies warrantless searches and seizures in the home.
Again, but…..
Four of the Justices were apparently concerned that the court’s opinion would be read too broadly. So three of them, with one Justice joining, separately wrote concurrences that recognized police continued to have the right to enter a home without a warrant when they reasonably believed that medical assistance was needed or persons were in danger.
Why Are Wellness Checks Important for the Elderly?
Then they narrowed in on welfare checks and the elderly. Justice Alito wrote “Today, more than ever, many people, including many elderly persons, live alone. Many elderly men and women fall in their homes or become incapacitated for other reasons, and unfortunately, there are many cases in which such persons cannot call for assistance. In those cases, the chances for a good recovery may fade with each passing hour……. This imaginary woman may have regarded her house as her castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony.”
The legal justification for a wellness check on an elderly person is the “exigent circumstances doctrine.” You might want to keep that information handy.
Virginia Hammerle is an attorney with Hammerle Finley Law Firm whose practice includes probate law, estate planning and contested litigation. To receive her newsletter contact her at legaltalktexas@hammerle.com.
