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First Substitute H.B. 25
Representative Patricia W. Jones proposes the following substitute bill:
1
ADULT PROTECTIVE SERVICES
2
AMENDMENTS
3
2002 GENERAL SESSION
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STATE OF UTAH
5
Sponsor: Patricia W. Jones
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This act repeals and reenacts Part 3, Abuse, Neglect, or Exploitation of Disabled Adult, of
7
the Human Services Code. The act also amends the Utah Criminal Code. The act revises
8
and clarifies the definition of certain terms and adds definitions for certain other terms. The
9
act sets forth the purposes, powers, and duties of Adult Protective Services. The act modifies
10
the mandatory reporting law and adds penalties for obstructing investigations and for
11
threatening or intimidating reporters, victims, or witnesses. The act clarifies who may have
12
access to reports and information in the possession of Adult Protective Services. The act
13
provides that a vulnerable adult victim of exploitation has a private right of action against
14
the perpetrator. The act clarifies provisions regarding various petitions that can be filed in
15
district court by Adult Protective Services in behalf of vulnerable adults. The act clarifies
16
that information and records relating to investigations by Adult Protective Services are
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protected records under Title 63, Chapter 2, Government Records Access and Management
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Act.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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62A-3-311.1, as last amended by Chapter 276, Laws of Utah 1999
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63-2-304, as last amended by Chapters 232 and 335, Laws of Utah 2000
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76-5-111, as last amended by Chapter 289, Laws of Utah 1997
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ENACTS:
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62A-3-313, Utah Code Annotated 1953
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62A-3-314, Utah Code Annotated 1953
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62A-3-315, Utah Code Annotated 1953
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62A-3-316, Utah Code Annotated 1953
29
62A-3-317, Utah Code Annotated 1953
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62A-3-318, Utah Code Annotated 1953
31
62A-3-319, Utah Code Annotated 1953
32
62A-3-320, Utah Code Annotated 1953
33
62A-3-321, Utah Code Annotated 1953
34
REPEALS AND REENACTS:
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62A-3-301, as last amended by Chapter 43, Laws of Utah 2001
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62A-3-302, as last amended by Chapter 130, Laws of Utah 1996
37
62A-3-303, as last amended by Chapter 130, Laws of Utah 1996
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62A-3-304, as last amended by Chapter 43, Laws of Utah 2001
39
62A-3-305, as last amended by Chapter 130, Laws of Utah 1996
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62A-3-306, as last amended by Chapter 39, Laws of Utah 1998
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62A-3-307, as last amended by Chapter 130, Laws of Utah 1996
42
62A-3-308, as last amended by Chapter 130, Laws of Utah 1996
43
62A-3-309, as last amended by Chapter 130, Laws of Utah 1996
44
62A-3-311, as last amended by Chapters 130 and 248, Laws of Utah 1996
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62A-3-312, as last amended by Chapter 130, Laws of Utah 1996
46
Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-3-301
is repealed and reenacted to read:
48
Part 3. Abuse, Neglect, or Exploitation of Vulnerable Adults
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62A-3-301. Definitions.
50
As used in this part:
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(1) "Abandonment" means any knowing or intentional action or inaction, including
52
desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves the
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vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, medical,
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or other health care.
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(2) "Abuse" means:
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(a) attempting to cause harm, intentionally or knowingly causing harm, or intentionally or
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knowingly placing another in fear of imminent harm;
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(b) unreasonable or inappropriate use of physical restraint, medication, or isolation that
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causes or is likely to cause harm to a vulnerable adult that is in conflict with a physician's orders
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or used as an unauthorized substitute for treatment, unless that conduct furthers the health and
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safety of the adult;
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(c) emotional or psychological abuse;
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(d) sexual offense as described in Title 76, Chapter 5, Offenses Against the Person; or
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(e) deprivation of life sustaining treatment, except:
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(i) as provided in Title 75, Chapter 2, Part 11, Personal Choice and Living Will Act; or
66
(ii) when informed consent, as defined in Section
76-5-111
, has been obtained.
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(3) "Adult" means a person who is 18 years of age or older.
68
(4) "Adult protection case file" means documents and information contained in the file
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maintained by Adult Protective Services on a particular case, including any report or other
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notification received by the division or Adult Protective Services.
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(5) "Adult Protective Services" means the unit within the division responsible to
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investigate abuse, neglect, and exploitation of vulnerable adults and provide appropriate protective
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services.
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(6) "Caretaker" means any person, entity, corporation, or public institution that assumes
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the responsibility to provide a vulnerable adult with care, food, shelter, clothing, supervision,
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medical or other health care, or other necessities. "Caretaker" includes a relative by blood or
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marriage, a household member, a person who is employed or who provides volunteer work, or a
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person who contracts or is under court order to provide care.
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(7) "Counsel" means an attorney licensed to practice law in this state.
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(8) "Elder abuse" means abuse, neglect, or exploitation of an elder adult.
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(9) "Elder adult" means a person 65 years of age or older.
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(10) "Emergency" means a circumstance in which a vulnerable adult is at an immediate
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risk of death or serious physical injury or is at risk of immediate, serious harm. Risk of immediate,
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serious harm includes exploitation that results in the inability of a vulnerable adult to provide funds
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for immediate needs, including food, shelter, and necessary medical care.
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(11) "Emotional or psychological abuse" means intentional or knowing verbal or nonverbal
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conduct directed at a vulnerable adult including ridiculing, intimidating, yelling, swearing,
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threatening, isolating, coercing, harassing, or other forms of intimidating behavior that results or
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could result in the vulnerable adult suffering mental anguish or emotional distress, including fear,
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humiliation, degradation, agitation, confusion, or isolation.
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(12) "Exploitation" means the offense described in Subsection
76-5-111
(4).
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(13) "Harm" means pain, mental anguish, emotional distress, hurt, physical or
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psychological damage, physical injury, serious physical injury, suffering, or distress inflicted
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knowingly or intentionally.
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(14) "Intimidation” means communication through verbal or nonverbal conduct which
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threatens deprivation of money, food, clothing, medicine, shelter, social interaction, supervision,
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health care, or companionship, or which threatens isolation or abuse.
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(15) (a) "Isolation” means knowingly or intentionally preventing a vulnerable adult from
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having contact with another person by:
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(i) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
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contrary to the express wishes of the vulnerable adult, including communicating to a visitor that
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the vulnerable adult is not present or does not want to meet with or talk to the visitor, knowing that
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communication to be false;
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(ii) physically restraining the vulnerable adult in order to prevent the vulnerable adult from
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meeting with a visitor; or
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(iii) making false or misleading statements to the vulnerable adult in order to induce the
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vulnerable adult to refuse to receive communication from visitors or other family members.
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(b) The term "isolation" does not include an act intended to protect the physical or mental
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welfare of the vulnerable adult or an act performed pursuant to the treatment plan or instructions
110
of a physician or other professional advisor of the vulnerable adult.
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(16) "Lacks capacity to consent" has the meaning as provided in Section
76-5-111
.
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(17) "Neglect" means:
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(a) (i) failure of a caretaker to provide nutrition, clothing, shelter, supervision, personal
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care, or dental, medical h
,
h or other health care; or
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(ii) failure to provide protection from health and safety hazards or maltreatment;
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(b) failure of a caretaker to provide care to a vulnerable adult in a timely manner and with
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the degree of care that a reasonable person in a like position would exercise;
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(c) a pattern of conduct by a caretaker, without the vulnerable adult's informed consent,
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resulting in deprivation of food, water, medication, health care, shelter, cooling, heating, or other
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services necessary to maintain the vulnerable adult's well being;
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(d) knowing or intentional failure by a caretaker to carry out a prescribed treatment plan
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that causes or is likely to cause harm to the vulnerable adult;
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(e) self-neglect by the vulnerable adult; or
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(f) abandonment by a caretaker.
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(18) "Physical injury” includes damage to any bodily tissue caused by nontherapeutic
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conduct, to the extent that the tissue must undergo a healing process in order to be restored to a
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sound and healthy condition, or damage to any bodily tissue to the extent that the tissue cannot be
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restored to a sound and healthy condition. h
"
h Physical injury h
"
h includes skin bruising, a
128a
dislocation,
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physical pain, illness, impairment of physical function, a pressure sore, bleeding, malnutrition,
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dehydration, a burn, a bone fracture, a subdural hematoma, soft tissue swelling, injury to any
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internal organ, or any other physical condition that imperils the health or welfare of a vulnerable
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adult and is not a serious physical injury as defined in this section.
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(19) "Protected person" means a vulnerable adult for whom the court has ordered
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protective services, including a vulnerable adult for whom emergency protective services have
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been established under the provisions of this chapter.
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(20) "Protective services" means any services provided by Adult Protective Services to a
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vulnerable adult, either with the consent of the vulnerable adult or the vulnerable adult's guardian
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or conservator, or by court order, if that adult has been abused, neglected, exploited, or is in a state
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of self-neglect; protective services may include:
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(a) an intake system for receiving and screening reports;
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(b) investigation of referrals in accordance with statutory and policy guidelines;
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(c) protective needs assessment;
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(d) coordination and referral to community resources for services; or
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(e) short-term, limited services including emergency shelter or respite when family or other
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community resources are not available to provide protection.
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(21) "Self-neglect” means the failure of a vulnerable adult to provide food, water,
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medication, health care, shelter, cooling, heating, safety, or other services necessary to maintain
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the vulnerable adult's well being when that failure is the result of the adult's mental or physical
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impairment. Choice of lifestyle or living arrangements may not, by themselves, be evidence of
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self-neglect.
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(22) "Serious physical injury” has the meaning as provided in Section
76-5-111
.
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(23) "Substantiated" or "substantiation" means a finding, based upon a preponderance of
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the evidence, that there is a reasonable basis to conclude that abuse, neglect, or exploitation
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occurred, regardless of whether there is an identified perpetrator or current need for protective
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services. If more than one allegation is made or identified during the course of the investigation,
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any allegation determined to meet the criteria for substantiation requires a case finding of
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"substantiated."
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(24) "Undue influence” occurs when a person uses the person's role, relationship, or power
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to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear of a
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vulnerable adult, or uses the person's role, relationship, or power to gain control deceptively over
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the decision making of the vulnerable adult.
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(25) "Unsubstantiated" means a finding, based upon a preponderance of the evidence, that
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there is insufficient evidence to conclude that abuse, neglect, or exploitation occurred.
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(26) "Vulnerable adult” means an elder adult, or an adult who has a mental or physical
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impairment which substantially affects that person's ability to:
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(a) provide personal protection;
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(b) provide necessities such as food, shelter, clothing, or mental or other health care;
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(c) obtain services necessary for health, safety, or welfare;
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(d) carry out the activities of daily living;
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(e) manage the adult's own resources; or
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(f) comprehend the nature and consequences of remaining in a situation of abuse, neglect,
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or exploitation.
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Section 2.
Section
62A-3-302
is repealed and reenacted to read:
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62A-3-302. Purpose of Adult Protective Services Program.
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Adult Protective Services shall investigate or cause to be investigated reports of alleged
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abuse, neglect, or exploitation of vulnerable adults occurring in all settings and, where appropriate,
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shall provide short-term, limited protective services with the permission of the affected vulnerable
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adult or the guardian or conservator of the vulnerable adult. The division may promulgate rules
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and develop procedures and policies to be used in reporting incidents of abuse, neglect, or
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exploitation, and in investigating and providing protective services to the extent that funds are
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appropriated by the Legislature.
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Section 3.
Section
62A-3-303
is repealed and reenacted to read:
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62A-3-303. Powers and duties of Adult Protective Services.
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In addition to all other powers and duties that Adult Protective Services is given under this
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part, Adult Protective Services:
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(1) shall have access to facilities licensed by or contracting with either the department or
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the Department of Health for the purpose of conducting investigations;
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(2) has authority to receive, upon request, written statements, documents, exhibits, and
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other items pertinent to an investigation including medical or financial records of a vulnerable
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adult who is the subject of an investigation when:
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(a) a release of information is provided by the vulnerable adult who does not lack capacity
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to consent; or
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(b) a vulnerable adult lacks the capacity to consent, and an administrative subpoena has
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been issued through Adult Protective Services;
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(3) has authority to institute proceedings in a court of competent jurisdiction to seek relief
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necessary to carry out the provisions of this chapter;
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(4) has authority to require all persons, including family members of a vulnerable adult and
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any caretaker, to cooperate with Adult Protective Services in carrying out its duties under this
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chapter including conducting investigations and providing protective services;
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(5) may require all officials, agencies, departments, and political subdivisions of the state
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to assist and cooperate within their jurisdictional power with the court, the division, and Adult
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Protective Services in furthering the purposes of this chapter;
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(6) may conduct studies and compile data regarding abuse, neglect h
,
h and exploitation;
203a
and
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(7) may issue reports and recommendations.
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Section 4.
Section
62A-3-304
is repealed and reenacted to read:
206
62A-3-304. Cooperation by caretaker.
207
A caretaker, facility, or other institution may not use its own confidentiality standards as
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a basis for failure to:
209
(1) report abuse, neglect, or exploitation of a vulnerable adult in accordance with this
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chapter;
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(2) cooperate with any Adult Protective Services investigation;
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(3) provide Adult Protective Services with access to records or documents relating to the
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vulnerable adult who is the subject of an investigation; or
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(4) provide evidence in any judicial or administrative proceeding relating to a vulnerable
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adult who is the subject of an investigation.
216
Section 5.
Section
62A-3-305
is repealed and reenacted to read:
217
62A-3-305. Reporting requirements -- Immunity -- Violation -- Penalty.
218
(1) Any person who has reason to believe that any vulnerable adult has been the subject
219
of abuse, neglect, or exploitation shall immediately notify Adult Protective Services intake or the
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nearest law enforcement agency. When the initial report is made to law enforcement, law
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enforcement shall immediately notify Adult Protective Services intake. Adult Protective Services
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and law enforcement shall coordinate, as appropriate, their efforts to provide protection to the
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vulnerable adult.
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(2) When the initial report or subsequent investigation by Adult Protective Services
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indicates that a criminal offense may have occurred against a vulnerable adult, it shall notify the
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nearest local law enforcement agency. That law enforcement agency shall initiate an investigation
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in cooperation with Adult Protective Services.
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(3) Anyone who in good faith makes a report or otherwise notifies a law enforcement
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agency, the division, or Adult Protective Services of suspected abuse, neglect, or exploitation is
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immune from civil and criminal liability in connection with the report or other notification.
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(4) Any person who willfully fails to report suspected abuse, neglect, or exploitation of
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a vulnerable adult is guilty of a class B misdemeanor.
233
(5) Under circumstances not amounting to a violation of Section
76-8-508
, a person who
234
threatens, intimidates, or attempts to intimidate a vulnerable adult who is the subject of a report,
235
a witness, the person who made the report, or any other person cooperating with an investigation
236
conducted pursuant to this chapter is guilty of a class B misdemeanor.
237
(6) The physician-patient privilege does not constitute grounds for excluding evidence
238
regarding a vulnerable adult's injuries, or the cause of those injuries, in any judicial or
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administrative proceeding resulting from a report made in good faith pursuant to this part.
239a
h
(7) AN ADULT IS NOT CONSIDERED ABUSED, NEGLECTED, OR A VULNERABLE ADULT
239b
FOR THE REASON THAT THE ADULT HAS CHOSEN TO RELY SOLELY UPON RELIGIOUS,
239c
NONMEDICAL FORMS OF HEALING IN LIEU OF MEDICAL CARE.
h
240
Section 6.
Section
62A-3-306
is repealed and reenacted to read:
241
62A-3-306. Anonymity of reporter.
242
The identity of any person reporting or otherwise giving notice of allegations of abuse,
243
neglect, or exploitation of a vulnerable adult may not be released to any person other than
244
employees of the division, except as provided in Section
62A-3-312
.
245
Section 7.
Section
62A-3-307
is enacted to read:
246
62A-3-307. Photographing, video, and audio taping.
247
In order to document or preserve information regarding the alleged abuse, neglect, or
248
exploitation of a vulnerable adult, if the vulnerable adult consents or lacks capacity to consent law
249
enforcement or Adult Protective Services investigators may take, or cause to be taken, photographs
250
or video tape recordings of the trauma or injury visible on the vulnerable adult, or audio or video
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tape accounts of the alleged abuse, neglect, or exploitation.
252
Section 8.
Section
62A-3-308
is enacted to read:
253
62A-3-308. Peace officers authority to transport.
254
(1) A peace officer may remove and transport, or cause to have transported, a vulnerable
255
adult to an appropriate medical or shelter facility, if the officer has probable cause to believe that
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by reason of abuse, neglect, or exploitation there exists emergency exigent circumstances and:
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(a) the vulnerable adult will suffer serious physical injury or death if not immediately
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placed in a safe environment;
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(b) the vulnerable adult refuses to consent or lacks capacity to consent; and
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(c) there is not time to notify interested parties or to apply for a warrant or other court
261
order.
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(2) The peace officer shall notify Adult Protective Services within four hours of
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transporting a vulnerable adult to a medical or shelter facility. Adult Protective Services or the
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division shall file a petition with the court for an emergency protective order under Section
265
62A-3-320
within 24 hours after being notified, not including Saturdays, Sundays, and legal
266
holidays.
267
Section 9.
Section
62A-3-309
is enacted to read:
268
62A-3-309. Enforcement by division -- Duty of county or district attorney.
269
(1) It is the duty of the county or district attorney, as appropriate under Sections
17-18-1
,
270
17-18-1.5
, and
17-18-1.7
, to assist and represent the division and to initiate legal proceedings to
271
protect vulnerable adults and take appropriate action to prosecute the alleged offenders.
272
(2) When the county or district attorney fails to act upon the request of the division to
273
provide legal assistance within 30 days of the request, the division may request the attorney general
274
to act and, in the attorney general's discretion, the attorney general may assume the responsibilities
275
and carry the action forward in place of the county or district attorney.
276
Section 10.
Section
62A-3-311
is repealed and reenacted to read:
277
62A-3-311. Requests for information.
278
Requests for information contained in an adult protection case file shall be made in writing
279
to Adult Protective Services. Requests should indicate the specific information requested and the
280
reason for the request. Notwithstanding the provisions of Title 63, Chapter 2, Government
281
Records Access and Management Act, nothing may be released in response to a request except as
282
provided in Section
62A-3-312
.
283
Section 11.
Section
62A-3-311.1
is amended to read:
284
62A-3-311.1. Statewide data base -- Restricted use and access.
285
(1) The division shall maintain a data base for reports of [disabled or elder] vulnerable
286
adult abuse, neglect, [emotional or psychological abuse,] or exploitation made pursuant to this part.
287
(2) The data base shall include:
288
(a) the names and identifying data of the abused, neglected, or exploited adult and the
289
reported abuser;
290
(b) information regarding whether or not the abuse, [emotional or psychological abuse,]
291
neglect, or exploitation was substantiated or unsubstantiated; and
292
(c) any other information that may be helpful in furthering the purposes of this part, as
293
determined by the division, subject to the restrictions of [Subsection
62A-3-311
(2)] Section
294
62A-3-306
.
295
(3) Information obtained from the data base may be used only for:
296
(a) compiling statistical summaries that do not include names or other identifying data;
297
(b) granting or denying licenses or other grants of privilege by the department where
298
identification as a possible adult abuser may be relevant to the privilege in question, in accordance
299
with Subsection (4);
300
(c) investigation and action by the Division of Occupational and Professional Licensing
301
regarding registration of a health care assistant under Title 58, Chapter 62, Health Care Assistant
302
Registration Act; and
303
(d) licensing purposes by the Bureau of Licensing within the Department of Health, as
304
provided for in Section
26-21-9.5
, in determining whether a person associated with a covered
305
health care facility who provides direct care to [disabled or elder] vulnerable adults has a
306
substantiated finding of [disabled or elder] vulnerable adult abuse, neglect, or exploitation if
307
identification as a possible perpetrator is relevant to the employment activities of that person.
308
(4) (a) A license or privilege may not be denied under Subsection (3) solely on the basis
309
of information in the data base.
310
(b) Before a license or privilege may be denied under Subsection (3), the department
311
taking the action shall conduct a review and provide the person making application for the license
312
or privilege with notice and an opportunity to be heard in accordance with Title 63, Chapter 46b,
313
Administrative Procedures Act.
314
Section 12.
Section
62A-3-312
is repealed and reenacted to read:
315
62A-3-312. Access to information in data base.
316
The records and information contained in the data base and the adult protection case file
317
are protected records under Title 63, Chapter 2, Government Records Access and Management
318
Act. However, notwithstanding the provisions of Title 63, Chapter 2, Government Records Access
319
and Management Act, information and records contained in the data base and in the adult
320
protection case file are not open to public inspection. Pertinent parts of the data base and the adult
321
protection case file shall be made available to law enforcement agencies, the attorney general's
322
office, h [
and county or district attorney's office,
] h and county or district attorney's offices and may
322a
be
323
made available, at the discretion of the division, to:
324
(1) subjects of a report as follows:
325
(a) a vulnerable adult named in a report as a victim of abuse, neglect, or exploitation, or
326
that adult's attorney or legal guardian; and
327
(b) a person identified in a report as having abused, neglected, or exploited a vulnerable
328
adult, or that person's attorney; and
329
(2) persons involved in an evaluation or assessment of the vulnerable adult as follows:
330
(a) an employee of the department who is responsible for the evaluation or assessment of
331
an adult protection case file;
332
(b) a multidisciplinary team approved by the division to assist Adult Protective Services
333
in the evaluation, assessment, and disposition of a vulnerable adult case;
334
(c) an authorized person or agency providing services to or responsible for the care,
335
treatment, assessment, or supervision of a vulnerable adult named in the report as a victim, when
336
in the opinion of the division that information will assist in the protection of or provide other
337
benefits to the victim;
338
(d) a licensing authority for a facility, program, or person providing care to a victim named
339
in a report;
340
(e) the person or entity that reported the abuse, neglect, or exploitation, as considered
341
necessary on an individual case basis by the division; and
342
(f) legally authorized protection and advocacy agencies when they represent a victim or
343
have been requested by the division to assist on a case.
344
Section 13.
Section
62A-3-313
is repealed and reenacted to read:
345
62A-3-313. Penalty for unauthorized release of information.
346
Any person who willfully permits or aids and abets the release of any report, part of a
347
report, or other information in violation of this part is guilty of a class B misdemeanor.
348
Section 14.
Section
62A-3-314
is enacted to read:
349
62A-3-314. Private right of action.
350
(1) A vulnerable adult who suffers harm or financial loss as a result of exploitation has a
351
private right of action against the perpetrator.
352
(2) Upon the death of a vulnerable adult, any cause of action under this section shall
353
constitute an asset of the estate of the vulnerable adult.
354
Section 15.
Section
62A-3-315
is enacted to read:
355
62A-3-315. Protective services voluntary unless court ordered.
356
(1) Vulnerable adults who receive protective services under this part shall do so knowingly
357
or voluntarily or upon district court order.
358
(2) Protective services may be provided without a court order for a vulnerable adult who
359
does not lack capacity to consent and who requests or knowingly or voluntarily consents to those
360
services. Protective services may also be provided for a vulnerable adult whose guardian or
361
conservator with authority to consent does consent to those services. When short-term, limited
362
protective services are provided, the division and the recipient, or the recipient's guardian or
363
conservator, shall execute a written agreement setting forth the purposes and limitations of the
364
services to be provided. If consent is subsequently withdrawn by the recipient, the recipient's
365
guardian or conservator, or the court, services, including any investigation, shall cease.
366
(3) The court may order protective services to be provided to a vulnerable adult who does
367
not consent or who lacks capacity to consent to services in accordance with this part.
368
Section 16.
Section
62A-3-316
is enacted to read:
369
62A-3-316. Costs incurred for the provision of protective services.
370
Costs incurred in providing protective services are the responsibility of the vulnerable adult
371
when:
372
(1) the vulnerable adult is financially able to pay for those services, according to rates
373
established by the division, and that payment is provided for as part of the written agreement for
374
services described in Section
62A-3-315
;
375
(2) the vulnerable adult to be protected is eligible for those services from another
376
governmental agency; or
377
(3) the court appoints a guardian or conservator and orders that the costs be paid from the
378
vulnerable adult's estate.
379
Section 17.
Section
62A-3-317
is enacted to read:
380
62A-3-317. Venue for protective services proceedings.
381
Venue for all proceedings for protective services under this chapter is in the county where
382
the vulnerable adult resides or is present.
383
Section 18.
Section
62A-3-318
is enacted to read:
384
62A-3-318. Petition by division for protective services.
385
(1) If the division determines that a vulnerable adult is in need of protective services but
386
lacks capacity to consent to protective services, the division may petition the district court for an
387
order authorizing the division to provide protective services. The petition shall include:
388
(a) the name, address, and age of the adult who is the subject of the petition;
389
(b) the reasonably ascertainable names and addresses of the spouse, parents, adult children,
390
and caretaker of the adult who is the subject of the petition;
391
(c) the name and address of any court- appointed guardian or conservator for the adult;
392
(d) specific facts sufficient to show that the subject of the petition is a vulnerable adult in
393
need of protective services; and
394
(e) specific facts sufficient to show that the vulnerable adult lacks capacity to consent.
395
(2) Upon the filing of a petition, the court shall set a date for hearing on the petition. At
396
least ten days' notice of the petition and the hearing shall be given to the adult who is the subject
397
of the petition and to each other person identified in Subsection (1)(b) or (c).
398
(3) The notice shall be in plain language and large type, at least 14 font. The notice shall
399
indicate the time and place of the hearing, the possible adverse consequences to the adult, and a
400
list of rights as set forth in Subsections (4), (6), and (7). The petition and notice shall be served
401
personally upon the adult who is the subject of the petition and upon the adult's spouse, caretaker,
402
and parents if they can be found within the state. Notice to the spouse, caretaker, and parents, if
403
they cannot be found within the state, and to other persons shall be given by first-class mail,
404
postage prepaid.
405
(4) The adult who is the subject of the petition shall have the right to be present at the
406
hearing, unless the adult has knowingly and voluntarily waived the right to be present, or unless
407
a licensed physician has certified that the adult is physically unable to attend. Waiver shall not be
408
presumed by nonappearance of the adult, but shall be determined by the court on the basis of
409
evidence provided to the court.
410
(5) The adult who is the subject of the petition may be examined by a licensed physician
411
appointed by the court, who shall submit a written report to the court. The adult may be
412
interviewed by a visitor, as defined in Section
75-5-308
, appointed by the court, who shall submit
413
a written report to the court. The visitor may also interview knowledgeable persons at the division
414
and others who have knowledge of the adult who is the subject of the petition.
415
(6) The adult who is the subject of the petition has the right to be represented by counsel
416
at all proceedings before the court. Unless the adult has retained counsel, the court shall appoint
417
counsel. The fees of the adult's counsel shall be paid by the adult who is the subject of the petition
418
unless the adult is indigent in which case the division will pay the adult's reasonable attorneys fees.
419
(7) The adult who is the subject of the petition is entitled to present evidence and to
420
cross-examine witnesses, including any court-appointed physician and visitor. The issues may be
421
determined at a closed hearing if the adult who is the subject of the petition so requests.
422
(8) Nothing in this section limits proceedings under Title 75, Utah Uniform Probate Code.
423
Section 19.
Section
62A-3-319
is enacted to read:
424
62A-3-319. Court order for protective services -- Review.
425
(1) Only upon court order may involuntary protective services be provided to a vulnerable
426
adult who lacks capacity to consent to services.
427
(2) The court may order protective services if it is satisfied that the adult who is the subject
428
of the petition under Section
62A-3-318
lacks capacity to consent to services and is in need of
429
protective services. The court shall specifically state the purpose, extent, and limitations of the
430
protective services, including specific findings of fact and conclusions of law. The court shall
431
fashion any order so as to place the least possible restrictions on the rights of the vulnerable adult,
432
consistent with the welfare, safety, and best interests of the adult.
433
(3) Any party to the proceedings may petition the court for modification or dissolution of
434
the order at any time upon a showing of a material change in circumstances. Any protected person
435
has the right to petition the court for a rehearing within ten days after the date the order was
436
entered.
437
Section 20.
Section
62A-3-320
is enacted to read:
438
62A-3-320. Petition for emergency order.
439
(1) Upon petition therefor, if the court finds that the subject of the petition is a vulnerable
440
adult, that the adult has no court-appointed guardian or conservator or the guardian or conservator
441
is not effectively performing the guardian's or conservator's duties, that an emergency exists, and
442
that the welfare, safety, or best interests of the adult require immediate action, the court may,
443
without notice, order appropriate protective services. The order shall specifically designate the
444
protective services which are being approved, together with supporting facts.
445
(2) Protective services authorized in an emergency order may not include hospitalization,
446
nursing or custodial care, or a change in residence, unless the court specifically finds that the action
447
is necessary and authorizes the specific protective services in the order.
448
(3) Protective services shall be provided through an emergency order for a period not to
449
exceed three business days, at which time the order shall expire unless a petition for guardianship,
450
conservatorship, or other protective services has been filed. If a petition for guardianship,
451
conservatorship, or other protective services is filed within the three-business-day period, the
452
emergency order may be continued for as long as 15 days from the date the last petition was filed,
453
to allow time for a hearing to determine whether the emergency order shall remain in effect.
454
(4) In its emergency order, the court may appoint the petitioner or another interested
455
person as temporary guardian, in accordance with Section
75-5-310
.
456
(5) To implement an emergency order, the court may authorize forcible entry by a peace
457
officer into the premises where the protected person is residing only upon a showing that voluntary
458
access into the premises is not possible and that forcible entry is required.
459
Section 21.
Section
62A-3-321
is enacted to read:
460
62A-3-321. Petition for injunctive relief when caretaker refuses to allow services.
461
(1) When a vulnerable adult is in need of protective services and the caretaker refuses to
462
allow the provision of those services, the division may petition the court for injunctive relief
463
prohibiting the caretaker from interfering with the provision of protective services.
464
(2) The division's petition under Subsection (1) shall allege facts sufficient to show that
465
the vulnerable adult is in need of protective services, that the vulnerable adult either consents or
466
lacks capacity to consent to those services, and that the caretaker refuses to allow the provision of
467
those services or to order other appropriate relief.
468
(3) The court may, on appropriate findings and conclusions in accordance with Rule 65A,
469
Utah Rules of Civil Procedure, issue an order enjoining the caretaker from interfering with the
470
provision of protective services.
471
(4) The petition under Subsection (1) may be joined with a petition under Section
472
62A-3-318
or Section
62A-3-320
.
473
Section 22.
Section
63-2-304
is amended to read:
474
63-2-304. Protected records.
475
The following records are protected if properly classified by a governmental entity:
476
(1) trade secrets as defined in Section
13-24-2
if the person submitting the trade secret has
477
provided the governmental entity with the information specified in Section
63-2-308
;
478
(2) commercial information or nonindividual financial information obtained from a person
479
if:
480
(a) disclosure of the information could reasonably be expected to result in unfair
481
competitive injury to the person submitting the information or would impair the ability of the
482
governmental entity to obtain necessary information in the future;
483
(b) the person submitting the information has a greater interest in prohibiting access than
484
the public in obtaining access; and
485
(c) the person submitting the information has provided the governmental entity with the
486
information specified in Section
63-2-308
;
487
(3) commercial or financial information acquired or prepared by a governmental entity to
488
the extent that disclosure would lead to financial speculations in currencies, securities, or
489
commodities that will interfere with a planned transaction by the governmental entity or cause
490
substantial financial injury to the governmental entity or state economy;
491
(4) records the disclosure of which could cause commercial injury to, or confer a
492
competitive advantage upon a potential or actual competitor of, a commercial project entity as
493
defined in Subsection
11-13-3
(3);
494
(5) test questions and answers to be used in future license, certification, registration,
495
employment, or academic examinations;
496
(6) records the disclosure of which would impair governmental procurement proceedings
497
or give an unfair advantage to any person proposing to enter into a contract or agreement with a
498
governmental entity, except that this subsection does not restrict the right of a person to see bids
499
submitted to or by a governmental entity after bidding has closed;
500
(7) records that would identify real property or the appraisal or estimated value of real or
501
personal property, including intellectual property, under consideration for public acquisition before
502
any rights to the property are acquired unless:
503
(a) public interest in obtaining access to the information outweighs the governmental
504
entity's need to acquire the property on the best terms possible;
505
(b) the information has already been disclosed to persons not employed by or under a duty
506
of confidentiality to the entity;
507
(c) in the case of records that would identify property, potential sellers of the described
508
property have already learned of the governmental entity's plans to acquire the property; or
509
(d) in the case of records that would identify the appraisal or estimated value of property,
510
the potential sellers have already learned of the governmental entity's estimated value of the
511
property;
512
(8) records prepared in contemplation of sale, exchange, lease, rental, or other
513
compensated transaction of real or personal property including intellectual property, which, if
514
disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of
515
the subject property, unless:
516
(a) the public interest in access outweighs the interests in restricting access, including the
517
governmental entity's interest in maximizing the financial benefit of the transaction; or
518
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the
519
value of the subject property have already been disclosed to persons not employed by or under a
520
duty of confidentiality to the entity;
521
(9) records created or maintained for civil, criminal, or administrative enforcement
522
purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
523
release of the records:
524
(a) reasonably could be expected to interfere with investigations undertaken for
525
enforcement, discipline, licensing, certification, or registration purposes;
526
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
527
proceedings;
528
(c) would create a danger of depriving a person of a right to a fair trial or impartial hearing;
529
(d) reasonably could be expected to disclose the identity of a source who is not generally
530
known outside of government and, in the case of a record compiled in the course of an
531
investigation, disclose information furnished by a source not generally known outside of
532
government if disclosure would compromise the source; or
533
(e) reasonably could be expected to disclose investigative or audit techniques, procedures,
534
policies, or orders not generally known outside of government if disclosure would interfere with
535
enforcement or audit efforts;
536
(10) records the disclosure of which would jeopardize the life or safety of an individual;
537
(11) records the disclosure of which would jeopardize the security of governmental
538
property, governmental programs, or governmental recordkeeping systems from damage, theft, or
539
other appropriation or use contrary to law or public policy;
540
(12) records that, if disclosed, would jeopardize the security or safety of a correctional
541
facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
542
with the control and supervision of an offender's incarceration, treatment, probation, or parole;
543
(13) records that, if disclosed, would reveal recommendations made to the Board of
544
Pardons and Parole by an employee of or contractor for the Department of Corrections, the Board
545
of Pardons and Parole, or the Department of Human Services that are based on the employee's or
546
contractor's supervision, diagnosis, or treatment of any person within the board's jurisdiction;
547
(14) records and audit workpapers that identify audit, collection, and operational
548
procedures and methods used by the State Tax Commission, if disclosure would interfere with
549
audits or collections;
550
(15) records of a governmental audit agency relating to an ongoing or planned audit until
551
the final audit is released;
552
(16) records prepared by or on behalf of a governmental entity solely in anticipation of
553
litigation that are not available under the rules of discovery;
554
(17) records disclosing an attorney's work product, including the mental impressions or
555
legal theories of an attorney or other representative of a governmental entity concerning litigation;
556
(18) records of communications between a governmental entity and an attorney
557
representing, retained, or employed by the governmental entity if the communications would be
558
privileged as provided in Section
78-24-8
;
559
(19) personal files of a legislator, including personal correspondence to or from a member
560
of the Legislature, but not correspondence that gives notice of legislative action or policy;
561
(20) (a) records in the custody or control of the Office of Legislative Research and General
562
Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislation or
563
contemplated course of action before the legislator has elected to support the legislation or course
564
of action, or made the legislation or course of action public; and
565
(b) for purposes of this h [
subsection
]
SUBSECTION (20)
h , a "Request For Legislation"
565a
submitted to the Office of
566
Legislative Research and General Counsel is a public document unless a legislator submits the
567
"Request For Legislation" with a request that it be maintained as a protected record until such time
568
as the legislator elects to make the legislation or course of action public;
569
(21) research requests from legislators to the Office of Legislative Research and General
570
Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in response
571
to these requests;
572
(22) drafts, unless otherwise classified as public;
573
(23) records concerning a governmental entity's strategy about collective bargaining or
574
pending litigation;
575
(24) records of investigations of loss occurrences and analyses of loss occurrences that
576
may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the Uninsured
577
Employers' Fund, or similar divisions in other governmental entities;
578
(25) records, other than personnel evaluations, that contain a personal recommendation
579
concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal
580
privacy, or disclosure is not in the public interest;
581
(26) records that reveal the location of historic, prehistoric, paleontological, or biological
582
resources that if known would jeopardize the security of those resources or of valuable historic,
583
scientific, educational, or cultural information;
584
(27) records of independent state agencies if the disclosure of the records would conflict
585
with the fiduciary obligations of the agency;
586
(28) records of a public institution of higher education regarding tenure evaluations,
587
appointments, applications for admissions, retention decisions, and promotions, which could be
588
properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public
589
Meetings, provided that records of the final decisions about tenure, appointments, retention,
590
promotions, or those students admitted, may not be classified as protected under this section;
591
(29) records of the governor's office, including budget recommendations, legislative
592
proposals, and policy statements, that if disclosed would reveal the governor's contemplated
593
policies or contemplated courses of action before the governor has implemented or rejected those
594
policies or courses of action or made them public;
595
(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
596
revenue estimates, and fiscal notes of proposed legislation before issuance of the final
597
recommendations in these areas;
598
(31) records provided by the United States or by a government entity outside the state that
599
are given to the governmental entity with a requirement that they be managed as protected records
600
if the providing entity certifies that the record would not be subject to public disclosure if retained
601
by it;
602
(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
603
except as provided in Section
52-4-7
;
604
(33) records that would reveal the contents of settlement negotiations but not including
605
final settlements or empirical data to the extent that they are not otherwise exempt from disclosure;
606
(34) memoranda prepared by staff and used in the decision-making process by an
607
administrative law judge, a member of the Board of Pardons and Parole, or a member of any other
608
body charged by law with performing a quasi-judicial function;
609
(35) records that would reveal negotiations regarding assistance or incentives offered by
610
or requested from a governmental entity for the purpose of encouraging a person to expand or
611
locate a business in Utah, but only if disclosure would result in actual economic harm to the person
612
or place the governmental entity at a competitive disadvantage, but this section may not be used
613
to restrict access to a record evidencing a final contract;
614
(36) materials to which access must be limited for purposes of securing or maintaining the
615
governmental entity's proprietary protection of intellectual property rights including patents,
616
copyrights, and trade secrets;
617
(37) the name of a donor or a prospective donor to a governmental entity, including a
618
public institution of higher education, and other information concerning the donation that could
619
reasonably be expected to reveal the identity of the donor, provided that:
620
(a) the donor requests anonymity in writing;
621
(b) any terms, conditions, restrictions, or privileges relating to the donation may not be
622
classified protected by the governmental entity under this Subsection (37); and
623
(c) except for public institutions of higher education, the governmental unit to which the
624
donation is made is primarily engaged in educational, charitable, or artistic endeavors, and has no
625
regulatory or legislative authority over the donor, a member of his immediate family, or any entity
626
owned or controlled by the donor or his immediate family;
627
(38) accident reports, except as provided in Sections
41-6-40
,
41-12a-202
, and
73-18-13
;
628
(39) a notification of workers' compensation insurance coverage described in Section
629
34A-2-205
; [and]
630
(40) the following records of a public institution of education, which have been developed,
631
discovered, or received by or on behalf of faculty, staff, employees, or students of the institution:
632
unpublished lecture notes, unpublished research notes and data, unpublished manuscripts, creative
633
works in process, scholarly correspondence, and confidential information contained in research
634
proposals. Nothing in this Subsection (40) shall be construed to affect the ownership of a
635
record[.]; and
636
(41) information contained in the data base described in Section
62A-3-311.1
.
637
Section 23.
Section
76-5-111
is amended to read:
638
76-5-111. Abuse, neglect, or exploitation of a vulnerable adult -- Penalties.
639
(1) As used in this section:
640
(a) "Abandonment” means a knowing or intentional action or inaction, including desertion,
641
by a person or entity acting as a caretaker for a vulnerable adult that leaves the vulnerable adult
642
without the means or ability to obtain necessary food, clothing, shelter, or medical or other health
643
care.
644
[(a)] (b) "Abuse" means:
645
(i) attempting to cause harm, [or] intentionally or knowingly causing [physical] harm, or
646
intentionally or knowingly placing another in fear of imminent harm;
647
[(ii) placing another in fear of imminent physical harm;]
648
[(iii)] (ii) causing physical injury [caused] by knowing or intentional acts or omissions;
649
[(iv) unlawful detention or unreasonable confinement;]
650
[(v) gross lewdness; or]
651
(iii) unreasonable or inappropriate use of physical restraint, medication, or isolation that
652
causes or is likely to cause harm to a vulnerable adult that is in conflict with a physician's orders
653
or used as an unauthorized substitute for treatment, unless that conduct furthers the health and
654
safety of the adult; h
OR
h
655
[(vi)] (iv) deprivation of life-sustaining treatment, except:
656
(A) as provided in Title 75, Chapter 2, Part 11, Personal Choice and Living Will Act; or
657
(B) when informed consent, as defined in this section, has been obtained.
658
[(b)] (c) "Business relationship" means a relationship between two or more individuals or
659
entities where there exists an oral or written agreement for the exchange of goods or services.
660
[(c) ] (d) "Caretaker" means any person[, corporation, or public institution that has
661
assumed by relationship, contract, or court order], entity, corporation, or public institution that
662
assumes the responsibility to provide a [disabled or elder] vulnerable adult with care, food, shelter,
663
clothing, supervision, medical or other health care, or other necessities. "Caretaker" includes a
664
relative by blood or marriage, a household member, a person who is employed or who provides
665
volunteer work, or a person who contracts or is under court order to provide care.
666
[(d)] (e) "Deception" means:
667
(i) a misrepresentation or concealment:
668
(A) of a material fact relating to services rendered, disposition of property, or use of
669
property intended to benefit a [disabled or elder] vulnerable adult;
670
(B) of the terms of a contract or agreement entered into with a [disabled or elder]
671
vulnerable adult; or
672
(C) relating to the existing or preexisting condition of any property involved in a contract
673
or agreement entered into with a [disabled or elder] vulnerable adult; or
674
(ii) the use or employment of any misrepresentation, false pretense, or false promise in
675
order to induce, encourage, or solicit a [disabled or elder] vulnerable adult to enter into a contract
676
or agreement.
677
[(e) "Disabled adult" means a person 18 years of age or older who is impaired because of
678
mental illness, mental deficiency, physical illness or disability, or other cause to the extent that the
679
person lacks sufficient understanding or capacity to make or communicate informed decisions
680
concerning his person, or is unable to care for his own personal safety or provide necessities such
681
as food, shelter, clothing, or medical care, without which physical injury or illness may occur. A
682
person who is, in good faith, under treatment solely of a spiritual means, through prayer, in
683
accordance with the tenets and practices of a recognized church or religious denomination, and by
684
an accredited practitioner thereof, shall not be considered a disabled adult for that reason alone.]
685
(f) "Elder adult" means a person [who is] 65 years of age or older.
686
(g) "Endeavor" means to attempt or try.
687
(h) "Exploitation" means the offense described in Subsection (4).
688
(i) "Harm" means pain, mental anguish, emotional distress, hurt, physical or psychological
689
damage, physical injury, suffering, or distress inflicted knowingly or intentionally.
690
[(h)] (j) "Informed consent" means:
691
(i) a written expression by the person or authorized by the person, stating that [he] the
692
person fully understands the potential risks and benefits of the withdrawal of food, water,
693
medication, medical services, shelter, cooling, heating, or other services necessary to maintain
694
minimum physical or mental health, and that [he] the person desires that the services be
695
withdrawn. A written expression is valid only if the person is of sound mind when the consent is
696
given, and the consent is witnessed by at least two individuals who do not benefit from the
697
withdrawal of services; or
698
(ii) consent to withdraw food, water, medication, medical services, shelter, cooling,
699
heating, or other services necessary to maintain minimum physical or mental health, as permitted
700
by court order.
701
[(i)] (k) "Intimidation" means communication [by word or act to a disabled or elder adult
702
that he will be deprived] conveyed through verbal or nonverbal conduct which threatens
703
deprivation of money, food, clothing, medicine, shelter, social interaction, supervision, [or medical
704
services, or that he will suffer physical violence] health care, or companionship, or which threatens
705
isolation or harm.
706
(l) (i) "Isolation” means knowingly or intentionally preventing a vulnerable adult from
707
having contact with another person by:
708
(A) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
709
contrary to the express wishes of the vulnerable adult, including communicating to a visitor that
710
the vulnerable adult is not present or does not want to meet with or talk to the visitor, knowing that
711
communication to be false;
712
(B) physically restraining the vulnerable adult in order to prevent the vulnerable adult from
713
meeting with a visitor; or
714
(C) making false or misleading statements to the vulnerable adult in order to induce the
715
vulnerable adult to refuse to receive communication from visitors or other family members.
716
(ii) The term "isolation" does not include an act intended to protect the physical or mental
717
welfare of the vulnerable adult or an act performed pursuant to the treatment plan or instructions
718
of a physician or other professional advisor of the vulnerable adult.
719
[(j)] (m) "Lacks capacity to consent" means an impairment by reason of mental illness,
720
developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs,
721
chronic intoxication, short-term memory loss, or other cause to the extent that a [disabled or elder]
722
vulnerable adult lacks sufficient understanding of the nature or consequences of decisions
723
concerning [his] the adult's person or property.
724
[(k)] (n) "Neglect" means:
725
(i) [the] failure of a caretaker to provide [habilitation, care,] nutrition, clothing, shelter,
726
supervision, [or medical] personal care, or dental or other health care, or failure to provide
727
protection from health and safety hazards or maltreatment; [or]
728
(ii) failure of a caretaker to provide care to a vulnerable adult in a timely manner and with
729
the degree of care that a reasonable person in a like position would exercise;
730
[(ii)] (iii) a pattern of conduct by a caretaker, without the [disabled or elder] vulnerable
731
adult's informed consent, resulting in deprivation of food, water, medication, [medical services]
732
health care, shelter, cooling, heating, or other services necessary to maintain [minimum physical
733
or mental health.] the vulnerable adult's well being;
734
(iv) intentional failure by a caretaker to carry out a prescribed treatment plan that results
735
or could result in physical injury or physical harm; or
736
(v) abandonment by a caretaker.
737
[(l)] (o) "Physical injury" [means the impairment of physical condition and includes any]
738
includes damage to any bodily tissue caused by nontherapeutic conduct, to the extent that the tissue
739
must undergo a healing process in order to be restored to a sound and healthy condition, or damage
740
to any bodily tissue to the extent that the tissue cannot be restored to a sound and healthy
741
condition. "Physical injury" includes skin bruising, a dislocation, physical pain, illness,
742
impairment of physical function, a pressure [sores] sore, bleeding, malnutrition, dehydration,
743
[burns] a burn, a bone fracture, a subdural hematoma, soft tissue swelling, injury to any internal
744
organ, or any other physical condition that imperils the health or welfare of the [disabled or elder]
745
vulnerable adult and [that] is not a serious physical injury as defined in this section.
746
[(m)] (p) "Position of trust and confidence" means the position of a person who:
747
(i) is a parent, spouse, adult child, or other relative by blood or marriage of a [disabled or
748
elder] vulnerable adult;
749
(ii) is a joint tenant or tenant in common with a [disabled or elder] vulnerable adult;
750
(iii) has a legal or fiduciary relationship with a [disabled or elder] vulnerable adult,
751
including a court-appointed or voluntary guardian, trustee, attorney, or conservator; or
752
(iv) is a caretaker of a [disabled or elder] vulnerable adult.
753
[(n)] (q) "Serious physical injury" means any physical injury or set of physical injuries that:
754
(i) seriously impairs a [disabled or elder] vulnerable adult's health;
755
(ii) was caused by use of a dangerous weapon as defined in Section
76-1-601
;
756
(iii) involves physical torture or causes serious emotional harm to a [disabled or elder]
757
vulnerable adult; or
758
(iv) [creates] creates a reasonable risk of death.
759
[(o)] (r) "Sexual exploitation" means the production, distribution, possession, or
760
possession with the intent to distribute material or a live performance depicting a nude or partially
761
nude [disabled or elder] vulnerable adult who lacks the capacity to consent, for the purpose of
762
sexual arousal of any person.
763
(s) "Undue influence” occurs when a person uses the person's role, relationship, or power
764
to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear of a
765
vulnerable adult, or uses the person's role, relationship, or power to gain control deceptively over
766
the decision making of the vulnerable adult.
767
(t) "Vulnerable adult” means an elder adult, or an adult 18 years of age or older who has
768
a mental or physical impairment which substantially affects that person's ability to:
769
(i) provide personal protection;
770
(ii) provide necessities such as food, shelter, clothing, or medical or other health care;
771
(iii) obtain services necessary for health, safety, or welfare;
772
(iv) carry out the activities of daily living;
773
(v) manage the adult's own resources; or
774
(vi) comprehend the nature and consequences of remaining in a situation of abuse, neglect,
775
or exploitation.
776
(2) Under any circumstances likely to produce death or serious physical injury, any person,
777
including a caretaker, who causes a [disabled or elder] vulnerable adult to suffer serious physical
778
injury or, having the care or custody of a [disabled or elder] vulnerable adult, causes or permits that
779
adult's person or health to be injured, or causes or permits a [disabled or elder] vulnerable adult
780
to be placed in a situation where [his] the adult's person or health is endangered, is guilty of the
781
offense of aggravated abuse of a [disabled or elder] vulnerable adult as follows:
782
(a) if done intentionally or knowingly, the offense is a second degree felony;
783
(b) if done recklessly, the offense is third degree felony; and
784
(c) if done with criminal negligence, the offense is a class A misdemeanor.
785
(3) Under circumstances other than those likely to produce death or serious physical injury
786
any person, including a caretaker, who causes a [disabled or elder] vulnerable adult to suffer
787
[physical injury] harm, abuse, or neglect[,]; or, having the care or custody of a [disabled or elder]
788
vulnerable adult, causes or permits that adult's person or health to be injured, abused, or neglected,
789
or causes or permits a [disabled or elder] vulnerable adult to be placed in a situation where [his]
790
the adult's person or health is endangered, is guilty of the offense of abuse of a [disabled or elder]
791
vulnerable adult as follows:
792
(a) if done intentionally or knowingly, the offense is a class A misdemeanor;
793
(b) if done recklessly, the offense is a class B misdemeanor; and
794
(c) if done with criminal negligence, the offense is a class C misdemeanor.
795
(4) (a) A person commits the offense of exploitation of a [disabled or elder] vulnerable
796
adult when the person:
797
(i) is in a position of trust and confidence, or has a business relationship, with the [disabled
798
or elder] vulnerable adult or has undue influence over the vulnerable adult and knowingly, by
799
deception or intimidation, obtains or uses, or endeavors to obtain or use, the [disabled or elder]
800
vulnerable adult's funds, credit, assets, or other property with the intent to temporarily or
801
permanently deprive the [disabled or elder] vulnerable adult of the use, benefit, or possession of
802
[his] the adult's property, for the benefit of someone other than the [disabled or elder] vulnerable
803
adult;
804
(ii) knows or should know that the [disabled or elder] vulnerable adult lacks the capacity
805
to consent, and obtains or uses, or endeavors to obtain or use, or assists another in obtaining or
806
using or endeavoring to obtain or use, the [disabled or elder] vulnerable adult's funds, assets, or
807
property with the intent to temporarily or permanently deprive the [disabled or elder] vulnerable
808
adult of the use, benefit, or possession of his property for the benefit of someone other than the
809
[disabled or elder] vulnerable adult;
810
(iii) unjustly or improperly uses or manages the resources of a [disabled or elder]
811
vulnerable adult for the profit or advantage of someone other than the [disabled or elder]
812
vulnerable adult;
813
(iv) unjustly or improperly uses a [disabled or elder] vulnerable adult's power of attorney
814
or guardianship for the profit or advantage of someone other than the [disabled or elder] vulnerable
815
adult;
816
(v) involves a [disabled or elder] vulnerable adult who lacks the capacity to consent in the
817
facilitation or furtherance of any criminal activity; or
818
(vi) commits sexual exploitation of a [disabled or elder] vulnerable adult.
819
(b) A person is guilty of the offense of exploitation of a [disabled or elder] vulnerable adult
820
as follows:
821
(i) if done intentionally or knowingly and the aggregate value of the resources used or the
822
profit made is or exceeds $5,000, the offense is a second degree felony;
823
(ii) if done intentionally or knowingly and the aggregate value of the resources used or the
824
profit made is less than $5,000 or cannot be determined, the offense is a third degree felony;
825
(iii) if done recklessly, the offense is a class A misdemeanor; or
826
(iv) if done with criminal negligence, the offense is a class B misdemeanor.
827
(5) It does not constitute a defense to a prosecution for any violation of this section that
828
the accused did not know the age of the victim.
828a
h
(6) AN ADULT IS NOT CONSIDERED ABUSED, NEGLECTED, OR A VULNERABLE ADULT
828b
FOR THE REASON THAT THE ADULT HAS CHOSEN TO RELY SOLELY UPON RELIGIOUS,
828c
NONMEDICAL FORMS OF HEALING IN LIEU OF MEDICAL CARE.
h
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