This column first appeared in the San Antonio Express News and other Hearst Newspapers on November 5, 2018.
Dear Mr. Premack: My father has moved into my home, and despite his very happy demeanor he is bedridden with various health issues. We do have a care provider who comes in several hours a day, so I can get out, buy groceries, etc. My husband set up one of the new Nest indoor security cameras, so I can check on dad using my phone from any location. The new care provider told me there is some law about surveillance. Am I breaking the law to put a camera in my own home? – BT
You are right to be concerned about other peoples’ privacy and about being sure your activity is legal. Many states outlaw various types of recording without disclosure and advance consent from all parties. Texas law has addressed some, but not all, of the possible legal issues about which you are concerned.
Texas law says that recording in your home is legal if it is not intrusive of a third person’s privacy. It is also legal to record when you are one of the people in the recording, even if others in the recording do not know they are being recorded so long as your use of the recording is for a legal purpose. If you are not one of the people being recorded, then you must have consent.
You should disclose to caregivers (as you obviously have) that you will be recording. You should disclose to your father that you are recording. If he is well enough to consent, then recording is not a legal issue. If he is not well enough, and if you are agent under his medical powerof attorney then you can provide consent for him.
The statutes of Texas were not written at a time when video streaming to your phone was possible (that is, video that is not recorded but can only be experienced if you are watching it at that moment). If the camera only streams video, has no audio, and is not recorded, there is no law covering it. However, the type of camera you mentioned both streams and records video and audio, so consent should be necessary.
Taking a broader view, the Texas “Bill of Rights for the Elderly” guarantees seniors the right to privacy. It applies broadly when the senior resides in their own home, in someone else’s home, at a nursing home, or in assisted living. However, the rights are protected from infringement only by someone being paid to provide care, not unpaid family members like you.
Further, the Texas Health and Safety Code provides seniors the right to be free of electronic monitoring without authorized consent. However, this legal restriction applies only in a nursing home or other convalescent facility. Consent in that context can be provided by the patient, a court appointed guardian, or a list of authorized legal representatives.
If surveillance is legally authorized and installed in a nursing home or convalescent facility, and if abuse or neglect of the patient is detected, the person who approved its installation must report the event. Failure to report is a crime. Claiming that you did not have time to watch the entire recording (which would be very time consuming if the recording is 24/7) is not a defense; Texas law requires that the recordings be viewed within 14 days of creation.
The law does not impose this criminal liability for a recording in your own home but the existence of the criminal penalty does indicate that all surveillance should be taken seriously and monitored closely.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills andTrusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.
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