Report Title:

Hawaii Elder Justice Act

Description:

Establishes causes of action and enhanced civil penalties to deter the abuse, neglect, and economic exploitation of Hawaii's elderly.

HOUSE OF REPRESENTATIVES

H.B. NO.

376

TWENTY-SECOND LEGISLATURE, 2003

 

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 elder citizens of the State who are mentally or physically impaired constitute a significant and identifiable segment of the population that is particularly subject to risks of abuse, neglect, and economic exploitation. The legislature also recognizes that cases of abuse, neglect, and economic exploitation are often encountered as a product of an elder's dependency status, and substantial public interest exists to ensure that this segment of the population receives maximum legal protection from government.

Section 480-13, Hawaii Revised Statutes (HRS), currently provides enhanced civil remedies for elders who suffer monetary loss from unfair and deceptive practices by merchants or who are victims of consumer fraud. Section 480-13.5, HRS, also provides additional civil penalties for persons who engage in such conduct against elders.

The legislature believes that similar civil penalties and enhanced civil remedies should be available to deter those who subject elders to abuse, neglect, or economic exploitation. The Elder Justice Act of 2002, presently under consideration by Congress, reflects recent federal efforts to devote additional resources to state and local governments to adopt programs that deter the abuse, neglect, and economic exploitation of elders. Like other states that have enacted statutes to curb these practices, Hawaii now joins this national effort.

The purpose of this Act is to establish civil penalties in actions brought by the attorney general against persons who engage in the abuse, neglect, or economic exploitation of dependent elders, and provide enhanced civil remedies for dependent elders who are the victims of such conduct.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

HAWAII ELDER JUSTICE ACT

§     -1 General definitions. As used in this chapter:

"Abuse" means actual or imminent physical or psychological injury or sexual exploitation, and includes but is not limited to any of the following situations:

(1) A dependent elder exhibits evidence of:

(A) Substantial or multiple skin bruising or any other internal bleeding;

(B) Any injury to skin causing substantial bleeding;

(C) Malnutrition;

(D) A burn or burns;

(E) Poisoning;

(F) The fracture of any bone;

(G) A subdural hematoma;

(H) Soft tissue swelling;

(I) Extreme physical pain; or

(J) Extreme mental distress;

and the injury or condition is not justifiably explained, or where the history given is at variance with the degree or type of injury or condition, or circumstances indicate that the injury or condition is not the product of an accidental occurrence;

(2) A dependent elder has been subjected to a consistent pattern of actions or verbalization, including threats, insults, or harassment that cause extreme mental distress;

(3) A dependent elder is provided with dangerous, harmful, or detrimental drugs; except when such drugs are provided to the dependent elder pursuant to the direction or prescription of a practitioner; or

(4) A dependent elder is the victim of nonconsensual sexual contact or conduct, including but not limited to:

(A) Sexual assault, molestation, or sexual fondling;

(B) Obscene or pornographic photographing, filming, or depiction; or

(C) Other similar forms of sexual exploitation.

"Dependent elder" means any person sixty years-of-age or older who, because of mental or physical impairment, is dependent on another person, a care organization, or a care facility for personal health, safety, or welfare.

"Detrimental drugs" has the meaning given that term in section 712-1240.

"Economic exploitation" means the wrongful or negligent taking, withholding, misappropriation, or use of an elder's money, or real or personal property, including but not limited to:

(1) Breaches of fiduciary relationships such as the misuse of power of attorney or the abuse of guardianship privileges, resulting in the unauthorized appropriation, sale, or transfer of property;

(2) Unauthorized taking of personal assets;

(3) Misappropriation, misuse, or transfer of moneys belonging to the dependent elder from a personal or joint account; or

(4) Intentional or negligent failure to effectively use a dependent elder's income and assets for the necessities required for the dependent elder's support and maintenance.

"Neglect" means the failure to exercise that degree of care toward a dependent elder that a reasonable person with the responsibility of a caregiver would exercise, including but not limited to the failure to:

(1) Assist with personal hygiene;

(2) Provide necessary food, shelter, and clothing;

(3) Provide necessary health care, access to health care, or prescribed medication;

(4) Protect a dependent elder from health or safety hazards; or

(5) Protect against acts of abuse by a third party.

"Person" or "persons" means an individual or legal entity, including corporations, firms, trusts, partnerships, and incorporated or unincorporated associations, existing under or authorized by the laws of this State, or any other state, or any foreign country, its employees, agents, and assigns, who has the legal responsibility, or contractual obligation, or who has voluntarily assumed the responsibility to provide food, shelter, clothing, services, and medical treatment that are necessary to maintain the physical or mental health of a dependent elder.

"Practitioner" has the meaning given that term in section 712-1240.

§     -2 Suits by the State; civil penalties. The attorney general may bring an action on behalf of the State or any of the political subdivisions of the State against any person who engages in the abuse, neglect, or economic exploitation of a dependent elder. In any such action, a civil penalty of not less than $500 nor more than $1,000 for each day that the abuse, neglect, or economic exploitation occurred shall be collected from the person who engaged in the conduct. Penalties provided in this section are cumulative to the penalties available under all other laws of the State.

§     -3 Suits by or on behalf of dependent elders; civil remedies. If a dependent elder suffers personal injury or death that the trier of fact determines was caused by abuse or neglect, or suffers a loss of money or property caused by economic exploitation, the person who caused the injury, death, or loss is liable to the dependent elder, or to the dependent elder's estate, for three times the damages sustained by the dependent elder or the dependent elder's estate, plus attorneys' fees and costs. Notwithstanding any law to the contrary, the remedies provided in this section shall be in addition to any other common law or statutory remedies that may exist.

§     -4 Noneconomic damages for pain and suffering. If it is determined that the personal injury or death of a dependent elder was caused by abuse or neglect, all damages awarded shall be exempt from the limitations on recovery of noneconomic damages for pain and suffering under section 663-8.7."

SECTION 3. Section 663-8.7, Hawaii Revised Statutes, is amended to read as follows:

"[[]§663-8.7[]] Limitation on pain and suffering. Damages recoverable for pain and suffering as defined in section 663-8.5 shall be limited to a maximum award of $375,000; provided that this limitation shall not apply to tort actions enumerated in [section] sections -4 and 663-10.9(2)."

SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

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 upon its approval.

INTRODUCED BY:

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