WEST virginia legislature

2019 regular session

Introduced

House Bill 2618

By Delegate Rowan, Martin, C., Rohrbach, Sypolt, Graves, Lovejoy, Longstreth, Boggs, Mandt, Maynard and Kelly, J.

[Introduced January 23, 2019; Referred
to the Committee on Senior, Children, and Family Issues then the Judiciary.]

A BILL to amend and reenact §55-7J-1 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-2-29b of said code, all relating to including the use of undue influence resulting in financial or asset loss or disadvantage to an elderly person, protected person or incapacitated adult in the definitions of civil and criminal financial exploitation of elderly persons, protected persons and incapacitated adults; definitions; and including the use of undue influence in the definition of the crime of an act of financial exploitation.

Be it enacted by the Legislature of West Virginia:

Chapter 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 7J. Financial exploitation of an elderly person, protected person or incapacitated adult.

§55-7J-1. Action for financial exploitation of an elderly person, protected person or incapacitated adult; definitions.

(a) Any elderly person, protected person or incapacitated adult against whom an act of financial exploitation has been committed may bring an action under this article against any person who has committed an act of financial exploitation against him or her.

(b) For the purposes of this article:

(1) “Incapacitated adult” has the same meaning as prescribed under §61-2-29 of this code;

(2) “Diminished capacity” means the inability to address, avoid, prevent or stop financial exploitation because of physical, mental or emotional conditions;

(2) (3) “Elderly person” means a person who is 65 years or older;

(3) (4) “Financial exploitation” or “financially exploit” means the intentional misappropriation or misuse of funds or assets of an elderly person, protected person or incapacitated adult, or use of undue influence resulting in financial or asset loss or disadvantage to an elderly person, protected person or incapacitated adult, but shall may not apply to a transaction or disposition of funds or assets where the defendant made a good-faith effort to assist the elderly person, protected person or incapacitated adult with the management of his or her money or other things of value; and

(4) (5) “Protected person” means any person who is defined as a “protected person” in §44A-1-4 of this code and who is subject to the protections of chapter 44A or 44C of this code.

(6) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.

(A) In determining whether the alleged financial exploitation was produced by undue influence, all of the following shall be considered:

(i) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, diminished capacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(ii) The influencer’s apparent authority.  Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, intimate partner or other qualification.

(iii) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; use of affection, intimidation, or coercion; or initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(iv) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(B) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-29b. Financial exploitation of an elderly person, protected person or incapacitated adult; penalties; definitions.

(a) Any person who financially exploits an elderly person, protected person or an incapacitated adult in the amount of less than $1,000 is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than one year, or both fined and confined.

(b) Any person who financially exploits an elderly person, protected person or an incapacitated adult in the amount of $1,000 or more is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 and imprisoned in a state correctional facility not less than two nor more than 20 years.

(c) Any person convicted of a violation of this section shall, in addition to any other penalties at law, be subject to an order of restitution.

(d) In determining the value of the money, goods, property or services referred to in subsection (a) of this section, it shall be is permissible to cumulate amounts or values where such money, goods, property or services were fraudulently obtained as part of a common scheme or plan.

(e) Financial institutions and their employees as defined by §31A-2A-1 of this code and as permitted by §31A-2-4(c)(13) of this code, others engaged in financially related activities as defined by §31A-8C-1 of this code, caregivers, relatives and other concerned persons are permitted to report suspected cases of financial exploitation to state or federal law-enforcement authorities, the county prosecuting attorney and to the Department of Health and Human Resources, Adult Protective Services Division or Medicaid Fraud Division, as appropriate. Public officers and employees are required to report suspected cases of financial exploitation to the appropriate entities as stated above. The requisite agencies shall investigate or cause the investigation of the allegations.

(f) When financial exploitation is suspected and, to the extent permitted by federal law, financial institutions and their employees or other business entities required by federal law or regulation to file suspicious activity reports and currency transaction reports shall also be permitted to disclose suspicious activity reports or currency transaction reports to the prosecuting attorney of any county in which the transactions underlying the suspicious activity reports or currency transaction reports occurred.

(g) Any person or entity that in good faith reports a suspected case of financial exploitation pursuant to this section is immune from civil liability founded upon making that report.

(h) For the purposes of this section:

(1) "Incapacitated adult" means a person as defined by §61-2-29 of this code;

(2) “Diminished capacity” means the inability to address, avoid, prevent or stop financial exploitation because of physical, mental or emotional conditions;

(2) (3) "Elderly person" means a person who is 65 years or older;

(3) (4) "Financial exploitation" or "financially exploit" means the intentional misappropriation or misuse of funds or assets of an elderly person, protected person or incapacitated adult or use of undue influence resulting in financial or asset loss or disadvantage to an elderly person, protected person or incapacitated adult, but shall not apply to a transaction or disposition of funds or assets where the accused made a good-faith effort to assist the elderly person, protected person or incapacitated adult with the management of his or her money or other things of value; and

(4) (5) "Protected person" means any person who is defined as a "protected person" in §44A-1-4 of this code and who is subject to the protections of chapter 44A or chapter 44C of this code.

(6) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.

(A) In determining whether the alleged financial exploitation was produced by undue influence, all of the following shall be considered:

(i) The vulnerability of the victim.  Evidence of vulnerability may include, but is not limited to, incapacity, diminished capacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(ii) The influencer’s apparent authority.  Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, intimate partner or other qualification.

(iii) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; use of affection, intimidation, or coercion; or initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(iv) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(B) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

(i) (j) Notwithstanding any provision of this code to the contrary, acting as guardian, conservator, trustee or attorney for or holding power of attorney for an elderly person, protected person or incapacitated adult shall may not, standing alone, constitute a defense to a violation of subsection (a) of this section.

NOTE: The purpose of this bill is to include undue influence as a factor in the definition of financial exploitation of an incapacitated person, elderly person or protected person and to correct technical errors. The amendment is made in the civil cause of action as well as the criminal action.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.