Bill Text: IA SF109 | 2015-2016 | 86th General Assembly | Introduced


Bill Title: A bill for an act relating to abuse and financial exploitation of elders and providing penalties.

Spectrum: Partisan Bill (Democrat 22-0)

Status: (Introduced - Dead) 2015-02-06 - Subcommittee, Sodders, Hogg, and Schneider. S.J. 246. [SF109 Detail]

Download: Iowa-2015-SF109-Introduced.html
Senate File 109 - Introduced




                                 SENATE FILE       
                                 BY  BOLKCOM, RAGAN,
                                     DOTZLER, DVORSKY,
                                     MATHIS, ALLEN,
                                     SODDERS, QUIRMBACH,
                                     HART, SCHOENJAHN,
                                     JOCHUM, GRONSTAL,
                                     COURTNEY, DEARDEN,
                                     HORN, TAYLOR,
                                     PETERSEN, BISIGNANO,
                                     KINNEY, McCOY, BRASE,
                                     and SENG

                                      A BILL FOR

  1 An Act relating to abuse and financial exploitation of elders
  2    and providing penalties.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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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 543B The
  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" means a any 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 person who files a petition under this chapter who
  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.  CODE EDITOR DIRECTIVES.  The Code editor shall
  4 18 revise the title of chapter 726 to read "Protection of the
  4 19 family, dependent persons, residents of health care facilities,
  4 20 and older individuals".
  4 21                           EXPLANATION
  4 22 The inclusion of this explanation does not constitute agreement with
  4 23 the explanation's substance by the members of the general assembly.
  4 24    This bill includes provisions relating to elder abuse and
  4 25 financial exploitation.   The bill eliminates a listing of
  4 26 persons who were exempt from the confidential relationship
  4 27 requirement in order to be considered as standing in a position
  4 28 of trust or confidence with a vulnerable elder and thereby
  4 29 potentially subject to an allegation of financial exploitation
  4 30 under the elder abuse Code chapter.  The bill provides instead
  4 31 that the determination of the existence of a confidential
  4 32 relationship is an issue of fact to be determined by the court
  4 33 based upon the totality of the circumstances.
  4 34    The bill redefines "substitute petitioner" by eliminating as
  4 35 a potential substitute petitioner any other interested person,
  5  1 and instead including a person who has a demonstrated interest
  5  2 in the vulnerable elder.
  5  3    The bill provides that if a substitute petitioner files
  5  4 a petition for relief from elder abuse, the clerk of court
  5  5 shall provide notice to the vulnerable elder.  The bill also
  5  6 authorizes the court, in its discretion, to limit the number of
  5  7 petitions filed and the timeframe within which multiple filings
  5  8 of petitions may be made involving the same vulnerable elder.
  5  9    The bill establishes the crime of financial exploitation of
  5 10 an older individual. A person commits financial exploitation
  5 11 of an older individual when the person stands in a position of
  5 12 trust or confidence with the older individual and knowingly
  5 13 and by undue influence, deception, coercion, fraud, breach of
  5 14 fiduciary duty, or extortion, obtains control over or otherwise
  5 15 uses the benefits, property, resources, belongings, or assets
  5 16 of the older individual. The criminal penalties range from a
  5 17 simple misdemeanor to a class "C" felony based on the amount
  5 18 of benefits, property, resources, belongings, or assets of the
  5 19 older individual involved.
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