WEST virginia Legislature

2016 regular session

Introduced

House Bill 4309

By Delegates Rowan, Border, Fast, Stansbury, Moye, Campbell, Overington Romine, Duke, Pethtel and Ferro

[Introduced January 27, 2016; Referred
to the Committee on Senior Citizen Issues then the Judiciary.]

A BILL to amend and reenact §61-2-29b of the Code of West Virginia, 1931, as amended, relating to increasing criminal penalties for conviction of certain offenses of financial exploitation of an elderly person, protected person or incapacitated adult; increasing the criminal penalty for the offense of financial exploitation of $1,000 or more.

Be it enacted by the Legislature of West Virginia:

That §61-2-29b of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

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 shall be guilty of larceny and subject to the penalties contained in section thirteen, article three of this chapter 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 twenty 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.

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

(c) (e) Financial institutions and their employees, as defined by section one, article two-a, chapter thirty-one-a of this code and as permitted by section four, subsection thirteen of said article, others engaged in financially related activities, as defined by section one, article eight-c, chapter thirty-one-a 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.

(d) (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.

(e) (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.

(f) (h) For the purposes of this section:

(1) AIncapacitated adult@ means a person as defined by section twenty-nine of this article;

(2) AElderly person@ means a person who is sixty-five years or older;

(3) AFinancial exploitation@ or Afinancially exploit@ means the intentional misappropriation or misuse of funds or assets of 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) AProtected person@ means any person who is defined as a Aprotected person@ in section four, article one, chapter forty-four-a of this code and who is subject to the protections of chapter forty-four-a or forty-four-c of this code.

(g) (i) 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 not, standing alone, constitute a defense to a violation of subsection (a) of this section.

NOTE: The purpose of this bill is to increase the criminal penalties for conviction of the offense of financial exploitation of an elderly person, protected person or incapacitated person.

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