THE SENATE	S.B. NO.	2314
TWENTY-SIXTH LEGISLATURE, 2012		S.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO THE ELDERLY.

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

PART I

     SECTION 1.  Chapter 708, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§708‑   Financial and economic exploitation of a dependent elder. (1)  A person commits the offense of financial and economic exploitation of a dependent elder if the person intentionally obtains or exerts control over the property of the elder, and the person:

(a) Breaches a fiduciary duty, resulting in the unauthorized appropriation, sale, or transfer of property; or

(b) Intentionally obtains or exerts control over the property of the elder without authorization and with intent to deprive the elder of the property.

(2)  Financial and economic exploitation of a dependent elder is punishable as a:

(a) Misdemeanor if the value of the assets, money, or property is not greater than $500;

(b) Class C felony if the value of the assets, money, or property is $500 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 2.  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.  Notwithstanding section 706-669, a person who[,] is convicted of financial and economic exploitation of a dependent 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) Sixty] sixty years of age or older;

    [(2) Blind,] blind, a paraplegic, or a quadriplegic; or

    [(3) Eight] 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 follows:

    [(1)] (a)  For murder in the second degree--fifteen years;

    [(2)] (b)  For a class A felony--six years, eight months;

    [(3)] (c)  For a class B felony--three years, four months; and

    [(4)] (d)  For a class C felony--one year, eight months."

     SECTION 3.  This part does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

PART II

     SECTION 4.  Section 327E-3, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  An adult or emancipated minor may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity.  The power remains in effect notwithstanding the principal's later incapacity and may include individual instructions.  Unless related to the principal by blood, marriage, civil union, or adoption, an agent may not be an owner, operator, or employee of the health care institution at which the principal is receiving care.  The power shall be in writing, contain the date of its execution, be signed by the principal, and be witnessed by one of the following methods:

     (1)  Signed by at least two individuals[,] unrelated by blood, marriage, civil union, or adoption, each of whom witnessed either the signing of the instrument by the principal or the principal's acknowledgment of the signature of the instrument; or

     (2)  Acknowledged before a notary public at any place within this State."

     SECTION 5.  Section 412:3-114.5, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§412:3-114.5[]]  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 department of human services] the appropriate police 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 appropriate police department by telephone immediately, and by written report [sent within five business days.] via electronic mail immediately or as soon thereafter as practically possible.

     [(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.]

     [(d)] (c)  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)] (d)  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."

PART III

     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.

Report Title:

Financial Exploitation of Dependent Elder

Description:

Creates the crime of financial and economic exploitation of an elder and provides enhanced penalties.  Requires financial institutions to report suspected financial abuse to the appropriate police department.  Requires two signatures of unrelated persons as witnesses to the execution of a power of attorney for health care.  (SD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.