Report Title:

Dependent Elders; Protection

Description:

Adopts the Elder Justice Act to increase penalties for abuse, neglect, or economic exploitation of dependent elders.

THE SENATE

S.B. NO.

544

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO THE ELDER JUSTICE ACT.

 

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

SECTION 1. With the enactment of part X of chapter 346, relating to dependent adult protective services, the legislature "recognized 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 recognized that cases of abuse, neglect, and economic exploitation are often encountered as a product of an elder's dependency status, and that there is a substantial public interest in ensuring that dependent elders receive maximum legal protection. The provisions of this part require the department of human services to investigate allegations of abuse, seek protective orders, and seek protective and remedial action, but they do not provide for monetary damages or cover other types of legal actions in which a dependent elder is a victim.

Hawaii has demonstrated special concern for all elders who are victimized in the consumer arena. Sections 480-13 and 480-13.5, Hawaii Revised Statutes, provide enhanced civil remedies for elders who suffer monetary loss from unfair and deceptive practices by merchants or who are victims of consumer fraud. Section 444-10.7 provides an enhanced civil penalty for elders victimized by unlicensed contractors.

These two pieces of legislation evidence the State's intent to protect elders, but additional safeguards are needed. The legislature finds that civil penalties for abuse and neglect, and enhanced civil remedies for other legal actions brought by a dependent elder, should be available to deter those who subject dependent elders to abuse, neglect, or economic exploitation. Accordingly, this Act provides civil penalties in actions brought by the attorney general against persons who engage in the abuse, neglect, or economic exploitation of dependent elders. It does not provide a new type of legal action for a dependent elder who is victimized by a caregiver; it merely provides enhanced civil remedies for existing civil actions.

The need for enhanced protection of dependent elders is becoming widely recognized throughout the country. The proposed federal 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 to deter the abuse, neglect, and economic exploitation of elders. Hawaii is participating in this national effort, but still can do more to protect this vulnerable segment of society.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to title 20 to be appropriately designated and to read as follows:

"Chapter

ELDER JUSTICE ACT

§ -1 Definitions. For the purposes of this chapter:

"Abuse" means actual or imminent physical or psychological injury or sexual exploitation. Abuse includes but is not limited to situations where:

(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) One or more burns;

(E) Poisoning;

(F) The fracture of any bone;

(G) A subdural hematoma;

(H) Soft tissue swelling;

(I) One or more slignificant bedsores (decubitus ulcers);

(J) Extreme physical pain; or

(K) 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 verbalizations, including threats, insults, or harassment that cause extreme mental distress;

(3) A dependent elder 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 elder pursuant to the direction or prescription of a practitioner, as defined in section 712-1240;

(4) A dependent elder is the victim of non-consensual sexual contact or conduct, including:

(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 upon another person, a care organization, or a care facility for personal health, safety, or welfare.

"Economic exploitation" means the wrongful or negligent taking, withholding, misappropriation, or use of an elder's money, or real or personal property. This includes:

(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) The unauthorized taking of personal assets;

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

(4) The 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 which a reasonable person with the responsibility of a caregiver would exercise. Neglect includes but is not limited to the failure to:

(1) Assist with personal hygiene;

(2) Provide necessary food, shelter, or 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 third parties.

"Person" shall have the same meaning as in section 1-19, and shall include employees, agents, and assigns of any person who has the legal responsibility or contractual obligation, or who has voluntarily assumed the responsibility, for providing food, shelter, clothing, services, or medical treatment that are necessary to maintain the physical or mental health of a dependent elder. For the purpose of this part, a person voluntarily assumes responsibility for a dependent elder when the person has expressly acknowledged the person's responsibility to provide one or more of that type of care.

§ -2 Suits by the State; civil penalties. The attorney general may bring an action on behalf of the State or any county against any person who engages in the abuse, neglect, or economic exploitation of a dependent elder. A civil penalty of not less than $500 or more than $1000 for each day that the abuse or neglect occurred shall be collected from the person who engaged in such conduct; provided that if the person is an agent of another person who has also assumed responsibility for the dependent elder, both are jointly and severally liable for the penalty. Penalties provided in this section are cumulative to the penalties available under all other laws of the State; provided that penalties under section 480-13 shall not be cumulative for the same action.

§ -3 Damages in 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; provided that if the person is an agent of another person who has also assumed responsibility for the dependent elder, both are jointly and severally liable for the penalty.

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 No limitation on 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 of section 663-8.7 on the recovery of noneconomic damages for pain and suffering.

§ -5 Construction of chapter. This chapter is a remedial statute that should be liberally construed to effectuate its purpose."

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

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