Report Title:

Abuse of elders and dependent adults

Description:

Protects elders and dependent adults from abuse. (HB2696 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

2696

TWENTY-FIRST LEGISLATURE, 2002

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RElating to deterring and penalizing financial abuse of elders and dependant adults.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that financial abuse of elders and dependent adults are deserving of special consideration and protection because dependent adults may be subject to circumstances including use of various medications, mental or physical impairment, or legal incapacity, rendering them more susceptible to financial abuse, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.

The purpose of this Act is to revise existing laws to address the increasing problem of financial exploitation of elders and dependent adults by:

    1. Providing for harsher penalties for financial exploitations against elders and dependent adults; and
    2. Clarifying the crime of theft.

SECTION 2. Section 708-830, Hawaii Revised Statutes, is amended to read as follows:

"§708-830 Theft. A person commits theft if the person does any of the following:

(1) Obtains or exerts unauthorized control over property. A person obtains, or exerts control over, the property of another with intent to deprive the other of the property.

(2) Property obtained or control exerted through deception. A person obtains, or exerts control over, the property of another by deception with intent to deprive the other of the property.

(3) Appropriation of property. A person obtains, or exerts control over, the property of another that the person knows to have been lost or mislaid or to have been delivered under a mistake as to the nature or amount of the property, the identity of the recipient, or other facts, and, with the intent to deprive the owner of the property, the person fails to take reasonable measures to discover and notify the owner.

(4) Obtaining services by deception. A person intentionally obtains services, known by the person to be available only for compensation, by deception, false token, or other means to avoid payment for the services. When compensation for services is ordinarily paid immediately upon the rendering of them, absconding without payment or offer to pay is prima facie evidence that the services were obtained by deception.

(5) Diversion of services. Having control over the disposition of services of another to which a person is not entitled, the person intentionally diverts those services to the person's own benefit or to the benefit of a person not entitled thereto.

(6) Failure to make required disposition of funds.

(a) A person intentionally obtains property from anyone upon an agreement, such as a power of attorney, or subject to a known legal obligation, to make specified payment or other disposition, whether from the property or its proceeds or from the person's own property reserved in equivalent amount, and deals with the property as the person's own and fails to make the required payment or disposition. It does not matter that it is impossible to identify particular property as belonging to the victim at the time of the defendant's failure to make the required payment or disposition. A person's status as an officer or employee of the government or a financial institution is prima facie evidence that the person knows the person's legal obligations with respect to making payments and other dispositions. If the officer or employee fails to pay or account upon lawful demand, or if an audit reveals a falsification of accounts, it shall be prima facie evidence that the officer or employee has intentionally dealt with the property as the officer's or employee's own.

(b) A person obtains personal services from an employee upon agreement, or subject to a known legal obligation, such as a power of attorney, to make a payment or other disposition of funds to a third person on account of the employment, and the person intentionally fails to make the payment or disposition at the proper time.

(7) Diversion of property of elders or dependent adults.

(a) A person intentionally obtains a power of attorney or similar legal authority from an elder or dependent adult, as defined in section 364-222, to exercise control over the elder's or dependent adult's property for the purpose of managing the same, and intentionally deals with the property as the person's own, even though the person also makes necessary transactions beneficial to the elder or dependent adult.

(b) A person who has the care, custody, or control of or who stands in a position of trust with an elder or dependent adult shall be deemed to know one's legal obligations under the power of attorney or similar legal authority for the elder or dependent adult.

(c) An audit of the elder or dependent adult's property revealing a failure to maintain financial records or a falsification of accounts by a defendant shall be prima facie evidence that the defendant has intentionally dealt with the elder or dependent adult's property as the defendant's own.

[(7)] (8) Receiving stolen property. A person intentionally receives, retains, or disposes of the property of another, knowing that it has been stolen, with intent to deprive the owner of the property. It is prima facie evidence that a person knows the property to have been stolen if, being a dealer in property of the sort received, the person acquires the property for a consideration that the person knows is far below its reasonable value.

[(8)](9) Shoplifting.

(a) A person conceals or takes possession of the goods or merchandise of any store or retail establishment, with intent to defraud.

(b) A person alters the price tag or other price marking on goods or merchandise of any store or retail establishment, with intent to defraud.

(c) A person transfers the goods or merchandise of any store or retail establishment from one container to another, with intent to defraud.

The unaltered price or name tag or other marking on goods or merchandise, duly identified photographs or photocopies thereof, or printed register receipts, shall be prima facie evidence of value and ownership of such goods or merchandise. Photographs of the goods or merchandise involved, duly identified in writing by the arresting police officer as accurately representing such goods or merchandise, shall be deemed competent evidence of the goods or merchandise involved and shall be admissible in any proceedings, hearings, and trials for shoplifting, to the same extent as the goods or merchandise themselves."

SECTION 3. Section 708-874, Hawaii Revised Statutes, is amended to read as follows:

"§708-874 Misapplication of entrusted property. (1) A person commits the offense of misapplication of entrusted property if, with knowledge that he is misapplying property and that the misapplication involves substantial risk of loss or detriment to the owner of the property or to a person for whose benefit the property was entrusted, he misapplies or disposes of property that has been entrusted to him as a fiduciary or that is property of the government or a financial institution.

(2) "Fiduciary" includes a trustee, guardian, personal representative, agent under a power of attorney, receiver, or any other person acting in a fiduciary capacity, or any person carrying on fiduciary functions on behalf of a corporation or other organization which is a fiduciary.

(3) To "misapply property" means to deal with the property contrary to law or governmental regulation relating to the custody or disposition of that property; "governmental regulation" includes administrative and judicial rules and orders as well as statutes and ordinances.

(4) Misapplication of property is a misdemeanor."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2020.