HOUSE OF REPRESENTATIVES
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO THE ELDERLY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 708, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§708‑ Financial exploitation of an elder. (1) A person commits the offense of financial exploitation of an elder if the person intentionally obtains or exerts control over the assets, money, or property of an elder, and the person:
(a) Breaches the person's fiduciary duty, resulting in the unauthorized appropriation, sale, or transfer of assets, money, or property; or
(b) Does so without authorization and with intent to deprive the elder of the assets, money, or property.
(2) Financial exploitation of an elder is punishable as a:
(a) Misdemeanor if the value of the assets, money, or property is not greater than $750;
(b) Class C felony if the value of the assets, money, or property is $750 or more but less than $5,000;
(c) Class B felony if the value of the assets, money, or property is $5,000 or more but less than $10,000; and
(d) Class A felony if the value of the assets, money, or property is $10,000 or more.
(3) As used in this section "elder" means any person sixty-two years of age or older."
SECTION 2. Section 706-660.2, Hawaii Revised Statutes, is amended to read as follows:
"§706-660.2 Sentence of imprisonment for offenses against children, elder persons, or handicapped persons. (1) Notwithstanding section 706-669, a person who is convicted of financial exploitation of an elder under section 708‑ , or who in the course of committing or attempting to commit a felony, causes the death or inflicts serious or substantial bodily injury upon a person, who is:
(1)] (a) Sixty years of age or older;
(2)] (b) Blind, a paraplegic, or a
(3)] (c) Eight years of age or younger;
and such disability is known or reasonably should be
known to the defendant, shall, if not subjected to an extended term of
imprisonment pursuant to section 706-662, be sentenced to a mandatory minimum
term of imprisonment without possibility of parole as [
in subsection (2).
(2) The mandatory minimum term of imprisonment that shall be imposed pursuant to this section shall be as follows:
(1)] (a) For murder in the second
(2)] (b) For a class A felony--six
years, eight months;
(3)] (c) For a class B felony--three
years, four months; or
(4)] (d) For a class C felony--one
year, eight months."
SECTION 3. Section 412:3-114.5, Hawaii Revised Statutes, is amended to read as follows:
Mandatory reporting of suspected financial abuse of an elder. (a) A financial institution shall report
suspected financial abuse that is directed towards, targets, or is committed
against an elder to the [ department of human services] appropriate
local or federal law enforcement entities if:
(1) In connection with providing financial services to the elder, the officer or employee of a financial institution:
(A) Has direct contact with the elder; or
(B) Reviews or approves the elder's financial documents, records, or transactions; and
(2) The officer or employee, within the scope of employment or professional practice:
(A) Observes or has knowledge of an incident the officer or employee believes in good faith appears to be financial abuse; or
(B) In the case of officers or employers who do not have direct contact with the elder, has a good faith suspicion that financial abuse has occurred or may be occurring, based solely on the information present at the time of reviewing or approving the document, record, or transaction.
(b) Suspected financial abuse shall be
reported immediately to the [
department] appropriate local or federal
law enforcement entities by telephone and then by written report
sent by electronic mail within five business days[ .] after the
initial report, to the appropriate law enforcement entities.
(c) Upon notification by a financial
institution of suspected financial abuse, the department, in a timely manner,
shall determine whether the department has jurisdiction over the elder
involved; and if not, shall notify the financial institution, which shall then
notify the proper local law enforcement agency immediately by telephone and
forward the written report to the agency within three business days. A
financial institution shall not be liable for failing to report suspected
financial abuse to a local law enforcement agency in cases in which the
department fails to notify the institution of the department's lack of
jurisdiction. (d)] (c) Notwithstanding any
other state law to the contrary, including but not limited to laws concerning
confidentiality, any person, including the financial institution, who:
(1) Participates in the making of a report pursuant to this section; and
(2) Believes, in good faith, that the action is warranted by facts known to that person,
shall have immunity from any liability, civil or criminal, that might be otherwise incurred or imposed by or as a result of the making of the report. Any person making the report shall have the same immunity with respect to participation in any judicial proceeding resulting from the report.
(d) The commissioner of financial institutions may prescribe standardized forms to facilitate reporting under this section.
(e) For the purposes of this section:
"Department" means the department
of human services.]
"Elder" means a person who is sixty-two years of age or older.
"Financial abuse" means financial abuse or economic exploitation."
SECTION 4. Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§663- Suits by elders; financial exploitation; amount of recovery. (a) Any elder who is injured by an act of financial exploitation or any person authorized to act on behalf of the elder may file a claim in family court or any other court of competent jurisdiction against a person or persons alleged to have perpetrated the financial exploitation for damages sustained by the elder.
(b) If it is proven by a preponderance of the evidence that a person has engaged in financial exploitation, the family court or other court of competent jurisdiction shall award reasonable attorney's fees and costs to the elder, in addition to compensatory damages and all other remedies otherwise provided by law.
(c) In addition to any award made under subsection (b), if it is proven by clear and convincing evidence that the financial exploitation was done wilfully, wantonly, or maliciously, the family court or other court of competent jurisdiction may also award punitive damages to the elder.
(d) The remedies provided in this section shall not be considered exclusive and shall not preclude any other criminal, civil, or administrative remedy.
(e) As used in this section:
"Elder" means any person sixty-two years of age or older.
"Financial exploitation" shall have the same meaning as it has in section 346-222."
SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect on January 7, 2059.
Financial Exploitation of Dependent Elder; Penalties; Tort Actions
Creates the crime of financial exploitation of an elder and provides enhanced penalties. Requires financial institutions to report suspected financial abuse to law enforcement. Creates a private right of action for financial exploitation of an elder. Effective 1/7/2059. (HD2192 HD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.