HB2618 S JUD AM #1
The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
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) “Elderly person” means a person who is 65 years or older;
(3) “Financial exploitation” or “financially exploit” means
the intentional misappropriation or misuse of funds or assets or the diminishment
of assets due to undue influence of 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) “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 §44A-1-1 et seq. or §44C-1-1 et seq. of this code.
(c) Any person who believes that an elderly person, protected person, or incapacitated adult is suffering financial exploitation due to the intentional misappropriation or misuse of funds or undue influence may bring an action for a protective order pursuant to this section in the magistrate court or circuit court in the county in which the elderly person, protected person, or incapacitated adult resides: Provided, That an action for relief brought in the magistrate court of the county of residence of the elderly person, protected person, or incapacitated adult believed to be the victim of financial exploitation to stay further diminution of the persons assets shall be temporary in nature.
(d) An action under this section is commenced by the filing of a verified petition. Temporary relief may be granted without notice to the person alleged to be engaging in financial exploitation and without that person being present.
(e) If a magistrate court grants the petition and issues a temporary protective order, the magistrate court shall immediately transfer the matter to the circuit court of the county in which the petition was filed. Upon receipt of the notice of transfer from the magistrate court, the circuit court shall set the matter for a review hearing within 20 days. After a hearing, the circuit court may issue a permanent protective order containing any relief the circuit court determines necessary to protect the alleged victim if the court finds by a preponderance of the evidence that:
(1) The respondent has committed an act against the victim that constitutes financial exploitation; and
(2) There is reasonable cause to believe continued financial exploitation will occur unless relief is granted; or
(3) The respondent consents to entry of the permanent protective order.