HOUSE OF REPRESENTATIVES
TWENTY-SEVENTH LEGISLATURE, 2013
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. The legislature finds that Hawaii's elderly population is growing in size, and that financial exploitation of elderly persons is on the rise. The legislature also finds that it is important to respect our elders or kupuna, who have contributed their hard work, knowledge, and wisdom to our society. Therefore, in keeping with these values, it is essential that we honor our elders by protecting them from financial exploitation and abuse.
The purpose of this Act is to prevent and deter financial exploitation and abuse of elders by creating the offense of financial exploitation of an elder, providing enhanced penalties for those convicted of the offense, and requiring financial institutions to report instances of suspected financial abuse of an elder directly to the police.
SECTION 2. 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) Knows that the elder is sixty-two years of age or older, or recklessly disregards the risk thereof; and
(b) Breaches the person's fiduciary duty to the elder, resulting in the unauthorized appropriation, sale, or transfer of assets, money, or property of the elder; or
(c) Does so without authorization and with intent to deprive the elder of 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 3. 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‑ ,
,] 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 4. 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 appropriate police
of human services] and may report suspected financial
abuse to the department 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]
by telephone [ and by written report sent within five business
days.] and by electronic filing, or as soon as practicably possible, and
by written report sent within two business days, to the appropriate police
department; provided that suspected financial abuse may be reported to the
department of human services.
(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.]
(c) The department shall inform the appropriate police department of all reports received by the department regarding a case of financial abuse; provided that the name of the person who reported the case of financial abuse shall be released to the police department pursuant only to court order or the person's consent.
(d) The department shall inform the appropriate police department or office of the prosecuting attorney of any relevant information concerning a case of financial abuse when the information is required by the police department or the office of the prosecuting attorney for the investigation or prosecution of that case; provided that the name of the person who reported the case of financial abuse shall be released to the police department or the office of the prosecuting attorney pursuant only to court order or the person's consent.
(d)] (e) 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.
(e )] (f) 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 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 July 1, 2013.
Financial Exploitation of an Elder; Mandatory Reporting
Creates offense of financial exploitation of an elder and provides enhanced penalties. Requires financial institutions to report suspected financial abuse of an elder to the appropriate police department and allows suspected financial abuse to be reported to the Department of Human Services. Requires the Department of Human Services to share records with police department or office of the prosecuting attorney.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.