HB 1555-FN – VERSION ADOPTED BY BOTH BODIES
25Mar2014… 1054h
30Apr2014… 1649EBA
2014 SESSION
01/04
HOUSE BILL 1555-FN
AN ACT relative to the neglect of elderly, disabled, or impaired adults and relative to financial exploitation.
SPONSORS: Rep. K. Rogers, Merr 28; Rep. M. Mann, Rock 32; Rep. Ames, Ches 9; Rep.?Baldasaro, Rock 5; Rep. Fields, Belk 4; Rep. J. MacKay, Merr 14; Rep.?L.?Ober, Hills 37; Rep. Sedensky, Rock 13; Rep. Schamberg, Merr 4; Sen.?Woodburn, Dist 1; Sen. D'Allesandro, Dist 20; Sen. Soucy, Dist 18
COMMITTEE: Health, Human Services and Elderly Affairs
This bill establishes the crime of financial exploitation of an elderly, disabled, or impaired adult and imposes a mandatory sentence of imprisonment for a second or subsequent offense of criminal neglect or financial exploitation of such person.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
25Mar2014… 1054h
30Apr2014… 1649EBA
14-2152
01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fourteen
AN ACT relative to the neglect of elderly, disabled, or impaired adults and relative to financial exploitation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Statement of Purpose. The purpose of this act is to provide clear guidance relative to actions that constitute the crime of financial exploitation of elderly, disabled, or impaired adults and to encourage the cooperation of law enforcement officials, courts of competent jurisdiction and all appropriate state agencies providing human services in identifying these crimes. It is the intent of the general court to send a clear message to the public that financial exploitation of elderly, disabled, or impaired adults shall not be tolerated and that the provisions of this act shall be liberally construed to ensure that persons engaging in these unlawful acts be held criminally liable to the full extent of the law.
2 Criminal Neglect of Elderly, Disabled, or Impaired Adults; Definitions. Amend RSA 631:8, I(e) to read as follows:
(e) “Impaired adult” means any adult who suffers from an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, memory loss, or other cause, that causes an adult to lack sufficient understanding or capacity to make or communicate reasonable decisions concerning the adult’s person or property or [to be substantially impaired in the adult’s ability to provide adequately for his or her own care and custody] exhibits the functional limitations as defined in RSA 464-A:2, VII. Impaired adult includes a person determined to be incapacitated under RSA 161-F or RSA 464-A.
3 New Subparagraph; Criminal Neglect of Elderly, Disabled, or Impaired Adults; Definition Added. Amend RSA 631:8, I by inserting after subparagraph (h) the following new paragraph:
(i) “Undue influence” means the intentional use, by a person in a position of trust and confidence with an elderly, disabled, or impaired adult, of that position to obtain an unfair advantage over the elderly, disabled, or impaired adult, through actions or tactics, including, but not limited to, emotional, psychological, and legal manipulation.
4 New Sections; Financial Exploitation of Elderly, Disabled, or Impaired Adults; Penalties. Amend RSA 631 by inserting after section 8 the following new sections:
631:9 Financial Exploitation of an Elderly, Disabled, or Impaired Adult.
I. Whoever commits any of the following acts against an elderly, disabled, or impaired adult, as defined in RSA 631:8, shall be guilty of financial exploitation and penalized pursuant to RSA 631:10 if:
(a) In breach of a fiduciary obligation recognized in law, including pertinent regulations, contractual obligations, documented consent by a competent person, including, but not limited to, an agent under a durable power of attorney, guardian, conservator, or trustee, a person, knowingly or recklessly, for his or her own profit or advantage:
(1) Fails to use the real or personal property or other financial resources of the elderly, disabled, or impaired adult to provide food, clothing, shelter, health care, therapeutic conduct, or supervision for the elderly, disabled, or impaired adult when under a duty to do so; or
(2) Unless authorized by the instrument establishing fiduciary obligation, deprives, uses, manages, or takes either temporarily or permanently the real or personal property or other financial resources of the elderly, disabled, or impaired adult for the benefit of someone other than the elderly, disabled, or impaired adult; or
(b) In the absence of legal authority a person knowingly or recklessly through the use of undue influence, harassment, duress, force, compulsion, or coercion:
(1) Acquires possession or control of an interest in real or personal property or other financial resources of an elderly, disabled, or impaired adult;
(2) Induces an elderly, disabled, or impaired adult against the elderly, disabled, or impaired adult’s will to perform services for the profit or advantage of another; or
(3) Establishes a relationship with a fiduciary obligation to an elderly, disabled, or impaired adult that gives the person control of an interest in real or personal property or other financial resources of an elderly, disabled, or impaired adult.
II. State and local law enforcement agencies shall have concurrent jurisdiction to investigate reports of abuse, neglect, or exploitation of incapacitated adults as defined in RSA 161-F or RSA 464-A and all other crimes against elderly, disabled, or impaired adult victims including, but not limited to, the crimes set forth in RSA 631:8 and this section. Nothing in this paragraph shall be construed to alter the duties and responsibilities of the commissioner of the department of health and human services, or his or her designees, relative to investigating reports of abuse, neglect, self-neglect, or exploitation of incapacitated adults pursuant to RSA 161-F.
III. Nothing in this section requires a health or residential care facility, licensed under RSA?151, or any person to provide financial management or supervise financial management for an elderly, disabled, or impaired adult except as otherwise required by law.
IV. If the person knew or had reason to know that the elderly, disabled, or impaired adult lacked capacity to consent, consent is not a defense to a violation of this section.
V. Nothing in this section shall be construed to impose criminal liability on a person who makes a good faith effort to assist an elderly, disabled, or impaired adult in the management of funds, assets, or property which effort fails through no fault of the person.
631:10 Penalties.
I. Any person who violates RSA 631:8-a and who knows or reasonably should know that the victim is an elderly, disabled, or impaired adult shall be guilty of:
(a) A class A felony if the funds, assets, or property involved in the exploitation of the elderly, disabled, or impaired adult is valued at $1,500 or more; or
(b) A class B felony if the funds, assets, or property involved in the exploitation of the elderly, disabled, or impaired adult is valued at $1,000 or more, but less than $1,500; or
(c) A misdemeanor if the funds, assets, or property involved in the exploitation of the elderly, disabled, or impaired adult is valued at less than $1,000.
II. A person convicted of financial exploitation shall be sentenced to make restitution of the full value of the fund, assets, or property involved in the exploitation to the elderly, disabled, or impaired adult or the adult’s estate in accordance with RSA 651:63.
5 Effective Date. This act shall take effect January 1, 2015.
LBAO
14-2152
12/09/13
HB 1555-FN - FISCAL NOTE
AN ACT relative to the neglect of elderly, disabled, or impaired adults and relative to financial exploitation.
FISCAL IMPACT:
The Judicial Branch, the Judicial Council, the Departments of Justice and Corrections, and the New Hampshire Association of Counties state this bill, as introduced, will increase state and county expenditures by an indeterminable amount in FY 2015 and in each year thereafter. There will be no fiscal impact on state, county or local revenue or local expenditures.
METHODOLOGY:
The Judicial Branch states this bill would add RSA 631:8-a and b to establish the crime of financial exploitation of an elderly, disabled, or impaired adult and provides penalties for an unspecified misdemeanor if the value is less than $1,000, a class B felony for values from $1,000 to less than $1,500, and a class A felony for values above $1,500. The Branch has no information on which to estimate how many additional prosecutions may result from the proposed bill, but it does have information on the average cost of processing such cases. The estimated cost to the Judicial Branch of an average class A misdemeanor in the district division of the circuit court will be $66.17 in FY 2015, and $67.64 in FY 2016. The estimated average cost for a class B misdemeanor will be $46.99 in FY 2015, and $48.02 in FY 2016. Unspecified misdemeanors are presumed to be class B in accordance with RSA 625:9. These amounts do not consider the cost of any appeals of a misdemeanor that may be taken following trial in the district court, including the potential to appeal a class A misdemeanor to the superior court for a jury trial, or a class A or B misdemeanor to the Supreme court on issues of law, or to both. The Branch indicates the any felony offense, whether class A or B, for violation of the proposed statute would be classified as a routine criminal case in the superior court. The estimated average cost of a routine criminal case in the superior court will be $425.27 in FY 2015, and $433.34 in FY 2016. These amounts do not include the cost of any appeals that may be taken following trial. The Branch states the cost estimates for misdemeanors and routine criminal cases are based on studies of judicial and clerical weighted caseload times for processing average cases. These studies are more than eight years old for judicial time and over six year old for clerical time in the superior court and, due to various changes, may not have current validity.
The Judicial Council assumes that instances of financial exploitation of elderly, disabled, or impaired adults are currently prosecuted as financial fraud cases. The Council further assumes that, although most major instances of financial fraud involving exploitation of elderly, disabled, or impaired adults are already prosecuted criminally, the bill expands the range of conduct made illegal, could make it easier for the state to prove a crime has been committed, and may increase the number of criminal charges against individuals for financial exploitation. The Judicial Council indicates it would be responsible to ensure anyone charged with a class A misdemeanor, a class A felony, or a class B felony and who could not afford the assistance of counsel is provided a lawyer at state expense. The Council states, in accordance with RSA 604-A:2, representation is provided in the first instance by the Public Defender Program which provides representation in over 85% of the indigent-defense cased each year. The Council assumes the addition of several new criminal cases over the course of a year would not create pressure to increase state appropriations to the Public Defender Program. If a conflict of interest prevented the Public Defender Program from providing services, representation would be provided by the Contract Attorney System. The Council states, contract attorneys are paid on a per-unit basis as follows: misdemeanor cases are paid $275 and class A and B felonies are paid $756.25. If a contract attorney is not available, the case would go to assigned counsel paid $60 per hour with fee caps of $1,400 for misdemeanors, and $4,100 for felonies. The Council states the bill would increase state expenditures for representation of the indigent accused by an indeterminable amount.
The Department of Justice states it investigates and prosecutes some cases of financial exploitation of the elderly and others are prosecuted by local and county officials. The Department assumes it would receive additional referrals for investigation and prosecution, but is not able to estimate the potential increase.
The Department of Corrections states it is not able to determine the fiscal impact of this bill because it does not have sufficient detail to predict the number of individuals who would be subject to this legislation. The Department states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2013 was $32,872. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2013 was $570.
The New Hampshire Association of Counties states to the extent more individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties will have increased expenditures. The Association is unable to determine the number of individuals who may not be charged, convicted or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.