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