SB595

SECTION 1. The legislature finds that individuals with cognitive impairments are particularly vulnerable to undue influence and coercion. The legislature also finds that the transfer of powers of attorney, including durable, general, and financial powers of attorney, for individuals with cognitive deficits, when not accompanied by proper safeguards, may lead to financial exploitation and other forms of abuse.

Accordingly, the purpose of this Act is to establish additional protections for individuals diagnosed with cognitive deficits from unauthorized or unjust revocations of or changes to agents under their power of attorney.

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

"Chapter

Protection of individuals with cognitive deficits from unauthorized or unjust changes to their Power of attorney

§ -1 Definitions. As used in this chapter:

"Agent" has the same meaning as defined in section 551E-1.

"Adult protective services" means the adult protective and community services branch of the social services division of the department of human services.

"Advanced health care directive" has the same meaning as defined in section 327E-2.

"Advance mental health care directive" has the same meaning as defined in section 327G-2.

"Change to a power of attorney" occurs when the principal:

(1) Revokes the power of attorney;

(2) Revokes the authority of an agent, co-agent, or successor agent under the power of attorney;

(3) Modifies the authority given to an agent, co-agent, or successor agent under the power of attorney; or

(4) Designates a new agent, co-agent, or successor agent under the power of attorney.

"Cognitive deficit" means a condition characterized by impairment in memory, reasoning, or other mental abilities that significantly affects an individual's ability to make informed decisions.

"Durable power of attorney" means a power of attorney that is not terminated by the principal's incapacity.

"Good standing" means an agent of a power of attorney who has acted responsibly, ethically, and in the best interests of the principal, with no evidence of negligence, malfeasance, or misconduct.

"Financial power of attorney" means a power of attorney that grants the agent authority to make financial decisions on behalf of the principal, including managing bank accounts, paying bills, and handling investments or property.

"Power of attorney" means a writing or other record that grants an agent the authority to act on behalf of the principal for legal, financial, personal, and health care related matters, regardless of whether the term "power of attorney" is used. "Power of attorney" includes advance health-care directives and advance mental health care directives. A power of attorney is a durable power of attorney unless it expressly provides that it is terminated by the incapacity of the principal.

"Principal" has the same meaning as defined in section 551E-1.

"Qualified health care professional" means a physician, neuropsychologist, or geriatric certified professional licensed, accredited, or certified to assess cognitive function under state law.

§ -2 Changes to power of attorney; principal diagnosed with cognitive deficits; validity. No change to a power of attorney of a principal who is diagnosed with cognitive deficits shall be valid unless completed in compliance with the provisions of this chapter.

§ -3 Comprehensive cognitive assessment; certification. (a) Any principal diagnosed with cognitive deficits who seeks to change the individual's power of attorney shall undergo a comprehensive cognitive assessment by a qualified health care professional. The comprehensive cognitive assessment shall be initiated upon the principal's request to change the power of attorney.

(b) The qualified health care professional shall:

(1) Assess the principal's cognitive capacity, including whether the principal has:

(A) The capacity to understand the implications of the change to the principal's power of attorney; and

(B) The ability to voluntarily execute the change; and

(2) Submit a written certification that either confirms or denies the principal's cognitive capacity and ability required under paragraph (1) to:

(A) The principal; and

(B) Adult protective services.

(c) If the certificate submitted by the qualified health care professional denies the principal's cognitive capacity and ability pursuant to subsection (b)(1), the existing power of attorney shall remain in effect until a court of competent jurisdiction determines that the proposed change shall take effect in the interests of justice.

§ -4 Written notice; affidavit in support. (a) Any person initiating a change to a power of attorney of a principal diagnosed with cognitive deficits shall:

(1) Give a written notice explaining the proposed change to:

(A) The principal;

(B) The existing agent;

(D) Any legal guardian of the principal; and

(E) Any other person, including financial institutions and entities, who may be affected by the proposed revocation or change; and

(2) Within fifteen days of initiating the revocation or change, submit to adult protective services an affidavit in support of the proposed revocation or change, which shall include a detailed explanation of:

(A) The revocation or change;

(B) The specific circumstances necessitating the proposed revocation or change, including any financial, medical, or personal reasons justifying the change or revocation;

(D) The relationship between the principal and the proposed new agent, co-agent, or successor agent, as applicable; and

(E) Documentation evidencing that written notice to all necessary persons has been given pursuant to paragraph (1).

(b) Failure to submit an affidavit in compliance with subsection (a)(2), including provision of an adequate explanation supporting the proposed change to the power of attorney, shall void the proposed change.

§ -5 Effective date of change; mandatory waiting period; notice. (a) Except for an emergency change to a power of attorney granted pursuant to section -6, any change to a power of attorney of a principal diagnosed with cognitive deficits shall not take effect until thirty days after adult protective services confirms in writing, its receipt of:

(1) A certificate from the qualifying health care professional confirming the principal's cognitive capacity and ability pursuant to section -3(b); and

(2) An affidavit from the person initiating the change in compliance with section -4(b).

(b) Adult protective services shall, upon receipt of the information required in subsection (a), provide the principal and any person initiating the change to the power of attorney with a written notice:

(1) Confirming receipt of the required information and that the proposed change to the principal's power of attorney shall take effect after the mandatory waiting period under subsection (a); or

(2) If the certificate submitted by the qualified health care professional denies the principal's cognitive capacity and ability pursuant to section -3(b), or the affidavit submitted pursuant to section -4(b) fails to include the necessary information, that the proposed change to the principal's power of attorney is invalid or delayed pending investigation by adult protective services.

§ -6 Emergency change to power of attorney; principals in imminent danger; court order; investigation. (a) If a principal diagnosed with cognitive deficits is in imminent danger warranting an immediate change to the individuals' power of attorney, the principal or the principal's designee may petition a court of competent jurisdiction for an order allowing an emergency change to the power of attorney, accompanied by supporting documentation outlining the urgent circumstances warranting the change.

(b) A petition for an emergency change filed pursuant to subsection (a) shall be granted or denied within seventy-two hours of the filing of the petition; provided that if granted, the emergency change shall take effect immediately upon its issuance and terminate on the thirtieth day thereafter, unless made permanent pursuant to subsection (c).

(c) Within thirty days of an order granting an emergency change to a power of attorney pursuant to subsection (b), the issuing court shall investigate whether the emergency change is in the best interests of the principal and determine if it should be made permanent

§ -7 Agent of a principal diagnosed with cognitive deficits; investigations; interviews; safeguards; procedure. (a) A principal diagnosed with cognitive deficits or a person attempting to replace an existing agent with a new agent shall request adult protective services for an investigation to determine whether the existing agent is in good standing. The investigation shall include a review of the existing agent's actions, financial management, and health care decisions taken or made on behalf of the principal.

If the existing agent is found to be in good standing, the agent shall not be removed without proper cause or justification and any attempts to replace the agent shall be deemed invalid. If the investigation finds that the existing agent has engaged in misconduct or has been negligent in the performance of the agent's duties, the existing agent shall be subject to immediate removal.

(b) In the event of a dispute between an existing agent in good standing and a prospective agent, the existing agent shall initiate a formal mediation or any other dispute resolution process with adult protective services to resolve the conflict and determine the best course of action for the principal diagnosed with cognitive deficits.

(c) Adult protective services shall conduct annual interviews with each agent of a principal diagnosed with cognitive deficits to ensure that the agent is acting in the best interests of the principal.

(d) Any attempt to change a power of attorney of a principal diagnosed with cognitive deficits shall be accompanied by clear evidence that the principal is making the decision freely and without coercion. If allegations that the principal is being manipulated and is not capable of understanding the implications of the change to the power of attorney arise, the change shall be invalid pending a review by adult protective services. In cases where a principal's cognitive capacity is in question, a court of competent jurisdiction may require ongoing medical evaluations to ensure the principal's understanding of decisions related to the power of attorney.

(e) A court of competent jurisdiction may appoint a guardian ad litem or other legal representative to advocate on behalf of the principal during a proceeding.

§ -8 Civil actions for damages. (a) A person who alleges a violation of this chapter may bring a civil action for actual damages. As used in this subsection, "damages" means damages for any injury or loss caused by each violation of this chapter, including reasonable attorney fees.

(b) An action commenced pursuant to subsection (a) may be brought in the circuit court for the circuit where the alleged violation occurred, where the complainant resides, or where the person against whom the civil complaint is filed resides or has a principal place of business.

§ -9 Coercion or undue influence to create or change a power of attorney for an individual diagnosed with cognitive deficits; penalty. (a) No person shall coerce or manipulate through undue influence a person diagnosed with cognitive deficits to create or change a power of attorney.

(b) Any person convicted of violating this section shall be sentenced as follows:

(1) A term of imprisonment of not less than ninety days; and

(2) A fine of not more than $10,000.

§ -10 Enforcement. Adult protective services shall enforce this chapter and shall:

(1) Oversee investigations into the conduct of current and prospective agents for individuals diagnosed with cognitive deficits;

(2) Ensure compliance with the waiting period, affidavit and written notification requirements;

(3) Review disputes and mediate conflicts relating to changes to a power of attorney for principles diagnosed with cognitive deficits;

(4) Conduct annual interviews of agents of principles diagnosed with cognitive deficits to ensure ongoing protection of the principal; and

(5) Enforce penalties under this chapter.

§ -11 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable."

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

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	595
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII