Bill Text: IA HF328 | 2015-2016 | 86th General Assembly | Introduced
Bill Title: A bill for an act relating to elders, including elder abuse, financial exploitation of elders, and the development of an elder abuse prevention system, and providing penalties.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2015-02-18 - Introduced, referred to Judiciary. H.J. 351. [HF328 Detail]
Download: Iowa-2015-HF328-Introduced.html
House File 328 - Introduced HOUSE FILE BY MASCHER A BILL FOR 1 An Act relating to elders, including elder abuse, financial 2 exploitation of elders, and the development of an elder 3 abuse prevention system, and providing penalties. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 2433HH (3) 86 pf/nh PAG LIN 1 1 Section 1. Section 235F.1, subsection 14, paragraph c, Code 1 2 2015, is amended to read as follows: 1 3 c. Is a person who is in a confidential relationship with 1 4 the vulnerable elder.For the purposes of this paragraph "c", a 1 5 confidential relationship does not include a legal, fiduciary, 1 6 or ordinary commercial or transactional relationship the 1 7 vulnerable elder may have with a bank incorporated under the 1 8 provisions of any state or federal law, any savings and loan 1 9 association or savings bank incorporated under the provisions 1 10 of any state or federal law, any credit union organized under 1 11 the provisions of any state or federal law, any attorney 1 12 licensed to practice law in this state, or any agent, agency, 1 13 or company regulated under chapter 505, 508, 515, or 543BThe 1 14 determination of the existence of a confidential relationship 1 15 is an issue of fact to be determined by the court based upon the 1 16 totality of the circumstances. 1 17 Sec. 2. Section 235F.1, subsection 15, Code 2015, is amended 1 18 to read as follows: 1 19 15. "Substitute petitioner" meansaany of the following 1 20 persons who files a petition under this chapter: 1 21 a. A family or household member, guardian, conservator, 1 22 attorney in fact, or guardian ad litem for a vulnerable elder, 1 23 or other interested. 1 24 b. A personwho files a petition under this chapterwho 1 25 has a demonstrated interest in the vulnerable elder based on a 1 26 legal right which will be directly affected by the outcome or 1 27 result of the action or based on a legal liability which will 1 28 be directly enlarged or diminished by the outcome or result of 1 29 the action. 1 30 Sec. 3. Section 235F.2, subsection 5, unnumbered paragraph 1 31 1, Code 2015, is amended to read as follows: 1 32 If a substitute petitioner files a petition under this 1 33 section on behalf of a vulnerable elder, the clerk of court 1 34 shall provide notice of the filing to the vulnerable elder. If 1 35 a petition is filed under this subsection, the vulnerable elder 2 1 shall retain the right to all of the following: 2 2 Sec. 4. Section 235F.2, Code 2015, is amended by adding the 2 3 following new subsection: 2 4 NEW SUBSECTION. 6. The court may, in its discretion, limit 2 5 the number of petitions filed and the timeframe within which 2 6 multiple filings of petitions may be made under this section 2 7 involving the same vulnerable elder. 2 8 Sec. 5. NEW SECTION. 726.11 Financial exploitation of an 2 9 older individual. 2 10 1. A person commits financial exploitation of an older 2 11 individual when the person stands in a position of trust or 2 12 confidence with the older individual and knowingly and by undue 2 13 influence, deception, coercion, fraud, breach of fiduciary 2 14 duty, or extortion, obtains control over or otherwise uses 2 15 or diverts the benefits, property, resources, belongings, or 2 16 assets of the older individual. 2 17 2. A person who commits financial exploitation of an older 2 18 individual is guilty of the following, as applicable: 2 19 a. Financial exploitation in the fifth degree which is 2 20 a simple misdemeanor if the value of the funds, benefits, 2 21 property, resources, belongings, or assets is two hundred 2 22 dollars or less. 2 23 b. Financial exploitation in the fourth degree which is 2 24 a serious misdemeanor if the value of the funds, benefits, 2 25 property, resources, belongings, or assets exceeds two hundred 2 26 dollars but does not exceed five hundred dollars. 2 27 c. Financial exploitation in the third degree which is an 2 28 aggravated misdemeanor if the value of the funds, benefits, 2 29 property, resources, belongings, or assets exceeds five hundred 2 30 dollars but does not exceed one thousand dollars. 2 31 d. Financial exploitation in the second degree which is a 2 32 class "D" felony if the value of the funds, benefits, property, 2 33 resources, belongings, or assets exceeds one thousand dollars 2 34 but does not exceed ten thousand dollars. 2 35 e. Financial exploitation in the first degree which is a 3 1 class "C" felony if the value of the funds, benefits, property, 3 2 resources, belongings, or assets exceeds ten thousand dollars. 3 3 3. Nothing in this section shall be construed to limit other 3 4 remedies available to the older individual including those 3 5 provided under chapters 235F and 236. 3 6 4. A person alleged to have committed a violation under this 3 7 section shall be charged with the respective offense, unless 3 8 a charge may be brought based upon a more serious offense, 3 9 in which case the charge of the more serious offense shall 3 10 supersede the less serious charge. 3 11 5. Nothing in this section shall be construed to impose 3 12 criminal liability on a person who has made a good=faith effort 3 13 to assist an older individual in the management of the older 3 14 individual's benefits, property, resources, belongings, or 3 15 assets, but through no fault of the person, the person has been 3 16 unable to provide such assistance. 3 17 6. It shall not be a defense to financial exploitation of 3 18 an older individual that the alleged perpetrator did not know 3 19 the age of the older individual or reasonably believed that the 3 20 alleged victim was not an older individual. 3 21 7. For the purposes of this section: 3 22 a. "Caretaker" means a related or nonrelated person who has 3 23 the responsibility for the protection, care, or custody of an 3 24 older individual as a result of assuming the responsibility 3 25 voluntarily, by contract, through employment, or by order of 3 26 the court. "Caretaker" does not include a caretaker as defined 3 27 in section 235E.1. 3 28 b. "Coercion" means communication or conduct which compels 3 29 an older individual to act or refrain from acting against the 3 30 older individual's will. 3 31 c. "Fiduciary" means a person or entity with the legal 3 32 responsibility to make decisions on behalf of and for the 3 33 benefit of an older individual and to act in good faith and 3 34 with fairness. "Fiduciary" includes but is not limited to an 3 35 attorney in fact, a guardian, or a conservator. 4 1 d. "Older individual" means a person sixty years of age or 4 2 older. 4 3 e. "Stands in a position of trust or confidence" means the 4 4 person has any of the following relationships relative to the 4 5 older individual: 4 6 (1) Is a parent, spouse, adult child, or other relative by 4 7 consanguinity or affinity of the older individual. 4 8 (2) Is a caretaker for the older individual. 4 9 (3) Is a person who is in a confidential relationship with 4 10 the older individual. The determination of the existence of a 4 11 confidential relationship is an issue of fact to be determined 4 12 by the court based upon the totality of the circumstances. 4 13 f. "Undue influence" means taking advantage of a person's 4 14 role, relationship, or authority to improperly change or 4 15 obtain control over the actions or decision making of an older 4 16 individual against the older individual's best interests. 4 17 Sec. 6. AGENCY COLLABORATION == ELDER ABUSE PREVENTION 4 18 SYSTEM DRAFT LEGISLATION. 4 19 1. The department on aging, department of human services, 4 20 department of inspections and appeals, department of public 4 21 health, the office of long=term care ombudsman, and the 4 22 office of the attorney general shall collaborate to develop 4 23 draft legislation to develop an elder abuse prevention system 4 24 for the state. The draft legislation shall incorporate a 4 25 multidisciplinary approach to elder abuse, based on best 4 26 practices utilizing the strengths of the various agencies and 4 27 the aging network in addressing prevention, detection, and 4 28 investigation of elder abuse and shall do all of the following: 4 29 a. Protect all Iowans sixty years of age and older from 4 30 the recognized categories of abuse including physical abuse, 4 31 emotional or psychological abuse, sexual abuse, financial 4 32 or material exploitation, and abandonment, neglect, and 4 33 self=neglect. 4 34 b. Specify who should be a mandatory reporter of elder 4 35 abuse. 5 1 c. Specify a penalty for failure to report elder abuse. 5 2 d. Include consequences for perpetrators of elder abuse. 5 3 e. Provide for a central elder abuse registry. 5 4 f. Specify educational and training requirements for 5 5 staff of entities that address prevention, detection, and 5 6 investigation of elder abuse. 5 7 g. Specify who will provide legal assistance for victims of 5 8 elder abuse. 5 9 h. Include services provisions. 5 10 i. Recognize the multidisciplinary team as an essential 5 11 element and require that the department on aging in 5 12 cooperation with law enforcement agencies, the department 5 13 of human services, and the department of public health be 5 14 responsible for a state multidisciplinary team and work with 5 15 the aging and disability resource centers to establish local 5 16 multidisciplinary teams throughout the state. 5 17 j. Enable all parties providing assistance to have access to 5 18 information needed to maximize assistance to victims of elder 5 19 abuse while maintaining the privacy of the victims. 5 20 k. Utilize the aging and disability resource centers as the 5 21 named contact source for elder abuse reporting while building 5 22 upon the collaborative no=wrong door approach. 5 23 l. Provide for designated elder abuse investigators who are 5 24 not also child abuse or dependent adult abuse investigators. 5 25 2. The agencies and offices shall submit a report to 5 26 the governor and the general assembly by December 15, 2015, 5 27 including draft legislation as specified in subsection 1. 5 28 Sec. 7. CODE EDITOR DIRECTIVES. The Code editor shall 5 29 revise the title of chapter 726 to read "Protection of the 5 30 family, dependent persons, residents of health care facilities, 5 31 and older individuals". 5 32 EXPLANATION 5 33 The inclusion of this explanation does not constitute agreement with 5 34 the explanation's substance by the members of the general assembly. 5 35 This bill includes provisions relating to elder abuse and 6 1 financial exploitation. The bill eliminates a listing of 6 2 persons who were exempt from the confidential relationship 6 3 requirement in order to be considered as standing in a position 6 4 of trust or confidence with a vulnerable elder and thereby 6 5 potentially subject to an allegation of financial exploitation 6 6 under the elder abuse Code chapter. The bill provides instead 6 7 that the determination of the existence of a confidential 6 8 relationship is an issue of fact to be determined by the court 6 9 based upon the totality of the circumstances. 6 10 The bill redefines "substitute petitioner" by eliminating as 6 11 a potential substitute petitioner any other interested person, 6 12 and instead including a person who has a demonstrated interest 6 13 in the vulnerable elder. 6 14 The bill provides that if a substitute petitioner files 6 15 a petition for relief from elder abuse, the clerk of court 6 16 shall provide notice to the vulnerable elder. The bill also 6 17 authorizes the court, in its discretion, to limit the number of 6 18 petitions filed and the timeframe within which multiple filings 6 19 of petitions may be made involving the same vulnerable elder. 6 20 The bill establishes the crime of financial exploitation of 6 21 an older individual. A person commits financial exploitation 6 22 of an older individual when the person stands in a position of 6 23 trust or confidence with the older individual and knowingly 6 24 and by undue influence, deception, coercion, fraud, breach of 6 25 fiduciary duty, or extortion, obtains control over or otherwise 6 26 uses the benefits, property, resources, belongings, or assets 6 27 of the older individual. The criminal penalties range from a 6 28 simple misdemeanor to a class "C" felony based on the amount 6 29 of benefits, property, resources, belongings, or assets of the 6 30 older individual involved. 6 31 The bill directs the department on aging, department 6 32 of human services, department of inspections and appeals, 6 33 department of public health, the office of long=term 6 34 care ombudsman, and the office of the attorney general to 6 35 collaborate to develop draft legislation to develop an elder 7 1 abuse prevention system for the state. The draft legislation 7 2 is required to incorporate a multidisciplinary approach to 7 3 elder abuse, based on best practices, utilizing the strengths 7 4 of the various agencies and the aging network in addressing 7 5 prevention, detection, and investigation of elder abuse and 7 6 is required to do all of the following: protect all Iowans 7 7 60 years of age and older from the recognized categories of 7 8 abuse including physical abuse, emotional or psychological 7 9 abuse, sexual abuse, financial or material exploitation, and 7 10 abandonment, neglect, and self=neglect; specify who should 7 11 be a mandatory reporter of elder abuse; specify a penalty 7 12 for failure to report elder abuse; include consequences for 7 13 perpetrators of elder abuse; provide for a central elder abuse 7 14 registry; specify educational and training requirements for 7 15 staff of the agencies that address prevention, detection, 7 16 and investigation of elder abuse; specify who will provide 7 17 legal assistance for victims of elder abuse; include services 7 18 provisions; recognize the multidisciplinary team as an 7 19 essential element of an elder abuse system and require entities 7 20 to work together to establish local multidisciplinary teams 7 21 throughout the state; enable all parties providing assistance 7 22 to have access to information needed to maximize assistance to 7 23 victims of elder abuse while maintaining the privacy of the 7 24 victims; utilize the aging and disability resource centers 7 25 as the named contact source for elder abuse reporting while 7 26 building upon the collaborative no=wrong door approach; and 7 27 provide for designated elder abuse investigators who are not 7 28 also child abuse or dependent adult abuse investigators. The 7 29 bill requires the agencies and offices to submit a report to 7 30 the governor and the general assembly by December 15, 2015, 7 31 including draft legislation as specified in the bill. LSB 2433HH (3) 86 pf/nh
