Report Title:

Elder Abuse; Neglect; Civil Remedies

Description:

Clarifies definition of "abuse" to include "neglect" with specified incidences of neglect; establishes civil remedies for elder abuse.

THE SENATE

S.B. NO.

467

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO ELDER ABUSE.

 

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

SECTION 1. Chapter 346, Hawaii Revised Statutes, is amended by adding a new section to part X to be appropriately designated and to read as follows:

"§346- Civil penalties; civil remedies. (a) The attorney general may bring a civil action on behalf of the State against any person who commits abuse. A civil penalty imposed under this subsection, shall not be less than $500, not more than $1,000, for each day that the abuse occurs and shall be in addition to subsection (b) and all other remedies provided by law.

(b) A dependent adult or guardian of the dependent adult who suffers abuse may bring an action, or the estate of the dependent adult who has died as a result of abuse may bring an action, for damages against a person who commits the abuse. The person against whom the action is brought shall be liable for three times the amount of damages sustained by the dependent adult, plus attorneys' fees and costs. The civil damages under this section shall be in addition to any other remedies provided by law. The limitations on the recovery of noneconomic damages for pain and suffering under section 663-8.7 shall not apply to this subsection."

SECTION 2. Section 346-222, Hawaii Revised Statutes, is amended by amending the definition of "abuse" to read as follows:

""Abuse" means actual or imminent physical injury, psychological abuse or neglect, sexual abuse, financial exploitation, negligent treatment, or maltreatment as further defined in this chapter.

Abuse occurs [where:] if:

(1) Any dependent adult 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 which includes a consistent pattern of actions or verbalizations including threats, insults, or harassment, that humiliates, provokes, intimidates, confuses, and frightens the dependent adult;

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

(2) Any dependent adult has been the victim of nonconsensual sexual contact or conduct, including but not limited to:

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

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

(C) Other similar forms of sexual exploitation;

(3) Any dependent adult is not provided in a timely manner with [adequate food, clothing, shelter,] psychological care, physical care, medical care, or supervision;

(4) Any dependent adult is provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; however, this paragraph shall not apply when such drugs are provided to the dependent adult pursuant to the direction or prescription of a practitioner, as defined in section 712-1240;

(5) There has been a failure to exercise that degree of care toward a dependent adult which a reasonable person with the responsibility of a caregiver would exercise, including, but not limited to, failure to:

(A) Assist in personal hygiene;

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

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

(D) Protect a dependent adult from health and safety hazards; or

(E) Protect against acts of abuse by third parties;

(6) Any dependent adult appears to lack sufficient understanding or capacity to make or communicate responsible decisions concerning the dependent adult's person, and appears to be exposed to a situation or condition which poses an imminent risk of death or risk of serious physical harm; [or]

(7) There is financial and economic exploitation. For the purpose of this part, "financial and economic exploitation" means the wrongful or negligent taking, withholding, misappropriation, or use of a dependent adult's money, real property, or personal property. "Financial and economic exploitation" can include but is not limited to:

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

(B) The unauthorized taking of personal assets;

(C) The misappropriation, misuse, or transfer of moneys belonging to the dependent adult from a personal or joint account; or

(D) The intentional or negligent failure to effectively use a dependent adult's income and assets for the necessities required for the person's support and maintenance.

The exploitations may involve coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence[.]; or

(8) There is neglect for the failure to exercise that degree of care toward a dependent adult which a reasonable person with the responsibility of a caregiver would exercise. Neglect includes, but is not limited to:

(A) Assistance with personal hygiene;

(B) Provision of necessary food, shelter, and clothing;

(C) Provision of necessary health care, access to health care, or prescribed medication; or

(D) Protection against acts of abuse by third parties."

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 663-10.9(2)[.] and in section 346- (b)."

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

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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