Senate File 109 - Introduced SENATE FILE 109 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 An Act relating to abuse and financial exploitation of elders 1 and providing penalties. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 1583XS (8) 86 pf/nh

S.F. 109 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 -1- LSB 1583XS (8) 86 pf/nh 1/ 5

S.F. 109 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 -2- LSB 1583XS (8) 86 pf/nh 2/ 5

S.F. 109 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 -3- LSB 1583XS (8) 86 pf/nh 3/ 5

S.F. 109 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. CODE EDITOR DIRECTIVES. The Code editor shall 17 revise the title of chapter 726 to read “Protection of the 18 family, dependent persons, residents of health care facilities, 19 and older individuals”. 20 EXPLANATION 21 The inclusion of this explanation does not constitute agreement with 22 the explanation’s substance by the members of the general assembly. 23 This bill includes provisions relating to elder abuse and 24 financial exploitation. The bill eliminates a listing of 25 persons who were exempt from the confidential relationship 26 requirement in order to be considered as standing in a position 27 of trust or confidence with a vulnerable elder and thereby 28 potentially subject to an allegation of financial exploitation 29 under the elder abuse Code chapter. The bill provides instead 30 that the determination of the existence of a confidential 31 relationship is an issue of fact to be determined by the court 32 based upon the totality of the circumstances. 33 The bill redefines “substitute petitioner” by eliminating as 34 a potential substitute petitioner any other interested person, 35 -4- LSB 1583XS (8) 86 pf/nh 4/ 5

S.F. 109 and instead including a person who has a demonstrated interest 1 in the vulnerable elder. 2 The bill provides that if a substitute petitioner files 3 a petition for relief from elder abuse, the clerk of court 4 shall provide notice to the vulnerable elder. The bill also 5 authorizes the court, in its discretion, to limit the number of 6 petitions filed and the timeframe within which multiple filings 7 of petitions may be made involving the same vulnerable elder. 8 The bill establishes the crime of financial exploitation of 9 an older individual. A person commits financial exploitation 10 of an older individual when the person stands in a position of 11 trust or confidence with the older individual and knowingly 12 and by undue influence, deception, coercion, fraud, breach of 13 fiduciary duty, or extortion, obtains control over or otherwise 14 uses the benefits, property, resources, belongings, or assets 15 of the older individual. The criminal penalties range from a 16 simple misdemeanor to a class “C” felony based on the amount 17 of benefits, property, resources, belongings, or assets of the 18 older individual involved. 19 -5- LSB 1583XS (8) 86 pf/nh 5/ 5