OLR Bill Analysis

sSB 1005 (File 201, as amended by Senate "A")*

AN ACT PROTECTING ELDERLY CONSUMERS FROM EXPLOITATION AND ADOPTING THE CONNECTICUT UNIFORM POWER OF ATTORNEY ACT.

SUMMARY:

This bill makes a number of changes regarding elder abuse. Among other things, it:

1. makes certain emergency medical service providers mandated reporters of elderly abuse and expands training requirements for employees of certain entities who care for someone age 60 or older;

2. gives abused, neglected, exploited, or abandoned elderly people a civil cause of action against perpetrators;

3. requires the Commission on Aging to (a) study best practices for reporting and identifying elderly abuse, neglect, exploitation, and abandonment and (b) create a portal of training resources for financial institutions and agents;

4. requires certain financial agents to receive training on elderly fraud, exploitation, and financial abuse; and

5. makes changes in definitions of elderly neglect and necessary services.

The bill also prohibits someone convicted of 1st or 2nd degree larceny or 1st degree abuse of an elderly, blind, or disabled person or person with intellectual disabilities from inheriting, receiving insurance benefits, or receiving certain property from a deceased victim. It makes changes to the disposition of certain types of jointly owned personal property when one owner is convicted of one of these or certain other crimes against another owner.

Finally, the bill makes technical and conforming changes.

*Senate Amendment “A” (1) makes changes in the definitions of “neglect” and “services necessary to maintain physical and mental health;” (2) eliminates a provision giving precedence to the civil action regarding elder abuse and prohibits bringing such an action related to neglect or abandonment against certain people; (3) prohibits people convicted of 1st or 2nd degree larceny or 1st degree abuse from inheriting or receiving certain benefits from a deceased victim, rather than those convicted of a new crime of larceny by exploitation, but allows them to petition the court to override these provisions; (4) adds the provisions on joint tenancy of personal property when someone is convicted of certain crimes; (5) adds the provisions on training for financial institutions and agents; (6) eliminates provisions enacting the Uniform Power of Attorney Act; and (7) eliminates various other provisions including those changing the definition of elderly exploitation, adding a definition of a person in a position of trust and confidence, making certain financial institution officers and employees mandated reporters, limiting which patient advocates are mandated reporters, and making it a form of 2nd degree larceny to obtain property by exploiting a victim age 60 or older, blind, or physically disabled.

EFFECTIVE DATE: October 1, 2015

1-2—REPORTING ELDER ABUSE

Definitions

The bill alters the definition of neglect for purposes of reporting suspected elderly neglect, training mandated reports, and Department of Social Services (DSS) investigations and services. Under current law, neglect refers to an elderly person (1) living alone and not able to provide for himself or herself the services necessary to maintain physical and mental health or (2) not receiving such services from a responsible caretaker. The bill broadens the first definition by also including elderly people who do not live alone. The bill specifies in the second definition that neglect is the failure of a caretaker to provide or arrange to provide such services to an elderly person. Under the bill, services necessary to maintain an elderly person's physical and mental health include protection from abuse, neglect, exploitation, or abandonment, rather than protection from maltreatment generally.

Mandated Reporters

The law requires certain professionals (mandated reporters) to notify DSS when they reasonably suspect an elderly person (1) has been abused, neglected, abandoned, or exploited or (2) needs protective services. The bill adds as mandated reporters the following licensed or certified emergency medical service providers: paramedics; emergency medical responders, technicians, advanced technicians, and technician-paramedics; service instructors; and any of these professionals who are members of a municipal fire department.

In addition to those discussed above, the following people are already mandated reporters:

1. licensed physicians, surgeons, and practical nurses;

2. hospital resident physicians and interns, registered nurses, medical examiners, dentists, optometrists, chiropractors, podiatrists, social workers, pharmacists, psychologists, and physical therapists;

3. members of the clergy;

4. police officers;

5. patients' advocates;

6. nursing home administrators, nurses' aides, orderlies, staff employees, and others paid to care for patients in nursing homes or residential care homes; and

7. anyone paid by an institution, organization, agency, or facility to care for an elderly person, including employees of (a) community-based service providers, (b) senior centers, (c) home care and homemaker-companion agencies, (d) adult day care centers, (e) village-model communities, and (f) congregate housing facilities.

Failure to make a report is punishable by a fine of up to $500. An intentional failure to report is a class C misdemeanor for a first offense (punishable by up to three months in prison, a fine of up to $500, or both) and a class A misdemeanor for a subsequent offense (punishable by up to one year in prison, a fine of up to $2,000, or both).

Training

The bill expands the training that institutions, organizations, agencies, and facilities employing individuals to care for someone age 60 or older must provide their employees. The bill requires this training to cover detecting elderly exploitation and abandonment, in addition to the current topics of abuse and neglect and informing employees of their reporting responsibilities.

3—CIVIL ACTION FOR ABUSED, NEGLECTED, OR EXPLOITED ELDERLY PEOPLE

The bill gives abused, neglected, exploited, or abandoned elderly people a cause of action against their perpetrators and allows them to recover actual and punitive damages, costs, and reasonable attorney's fees. It allows the following people to bring the suit:

1. the elderly person;

2. his or her guardian or conservator;

3. another person or an organization acting on the elderly person's behalf with consent from the elderly person or his or her guardian or conservator; or

4. the personal representative of a deceased elderly victim's estate.

If the action involves elderly exploitation, the bill allows the court to prohibit the defendant from transferring, depleting, or otherwise alienating or diminishing any funds, assets, or property.

The bill prohibits bringing an action for neglect or abandonment against someone who does not have a contractual obligation to provide care to an elderly person unless the person's neglect was willful or criminal.

4—INHERITANCE AND ESTATES

The bill prohibits someone convicted of 1st or 2nd degree larceny, 1st degree abuse of an elderly, blind, or disabled person or person with intellectual disabilities, or a similar crime in another jurisdiction from inheriting or receiving part of the estate from the victim. This applies when a conviction as a principal or accessory of the crime is final. The bill also excludes from inheriting or receiving someone who would have been found guilty of one of these crimes, as a principal or accessory, if he or she had survived, as determined by the Superior Court by a preponderance of the evidence in an action brought by an interested person.

The bill prohibits a named beneficiary on an insurance policy or annuity from receiving any benefits if he or she is convicted of one of these crimes against the person who is the subject of the policy or annuity. The bill also allows an interested party to bring a court action to determine by a preponderance of the evidence that a beneficiary who predeceased the interested person would have been found guilty of one of these crimes. If there is neither a conviction or action by an interested party, the bill allows a court to determine, based on the common law including equity, whether the person is entitled to any benefits. A person challenging someone else's entitlement to benefits has the burden of proof in one of these proceedings.

When a person is prohibited from inheriting or receiving part of an estate under the bill, he or she is considered to have predeceased the deceased victim for purposes of determining inheritance and distributing the estate.

Under the bill, an insurance company that makes a payment under a policy's or annuity's terms is not liable for additional payments under the bill unless, before making the payment, it received a written notice of claim under the bill at its home office or principal address.

By law, these provisions already apply to victims of murder with special circumstances, murder, felony murder, arson murder, 1st degree manslaughter with or without a firearm, or a similar crime in another jurisdiction.

Joint Tenancy

Current law contains a specific provision about joint tenancy with right of survivorship (where two or more people jointly own the property and the survivor takes full ownership). The bill limits the existing rule to ownership of real property and creates a new rule for personal property.

Currently, if someone is convicted of murder with special circumstances, murder, felony murder, arson murder, 1st degree manslaughter with or without a firearm, or a similar crime in another jurisdiction and owned property with the deceased in joint tenancy with right of survivorship, the person and the deceased become tenants in common (where each owns an interest that can be transferred and the interest does not end when the person dies) when the conviction is final. The bill limits this rule to joint tenancies with right of survivorship involving real property. It also applies this rule to people convicted of 1st or 2nd degree larceny or 1st degree abuse.

The bill adds a new rule for joint tenancies with right of survivorship concerning personal property. For anyone convicted of one of the crimes listed above (those listed in current law and those added by the bill), the bill converts the property's ownership to sole ownership by the deceased victim except to the extent the person can prove by a preponderance of the evidence his or her financial contribution to the property.

Overriding Prohibitions

The bill allows someone convicted of 1st or 2nd degree larceny or 1st degree abuse to petition the court to override the bill's prohibitions. The court can override them if it would (1) fulfill the deceased victim's intent or (2) avoid a grossly inequitable outcome under the circumstances, including circumstances such as providing restitution or substantial benefits to the victim during his or her lifetime or the victim's expressed forgiveness. The petitioner has the burden of proof and persuasion on such a petition.

5—COMMISSION ON AGING STUDY

The bill requires the Commission on Aging to study best practices for reporting and identifying abuse, neglect, exploitation, and abandonment of elderly people, including:

1. models nationwide for reporting;

2. standardized definitions, measurements, and uniform reporting mechanisms for accurate data collection in Connecticut; and

3. methods to promote and coordinate communication about reporting among state and local government entities.

The commission must consult with the Connecticut Elder Justice Coalition Coordinating Council, DSS, Department on Aging, Office of the Long-Term Care Ombudsman, and chief state's attorney. It must report the study's results to the Aging Committee by January 1, 2016.

5 & 6—FINANCIAL INSTITUTIONS AND AGENTS TRAINING

The bill requires the Commission on Aging to create a forum and clearing house for best practices and free training resources to help financial institutions and agents detect potential fraud, exploitation, and financial abuse. The commission must establish a single portal for resources and material by January 1, 2016.

The bill requires financial agents to participate in mandatory training to detect potential elderly fraud, exploitation, and financial abuse, including using the commission's portal. Agents must complete the training within the later of six months after the commission establishes its portal or beginning employment.

The training requirement applies to officers or employees of banks, savings banks, credit unions, trust companies, savings and loan associations, insurance companies, investment companies, mortgage bankers, trustees, executors, pension or retirement funds, other fiduciaries, and private financial institutions who:

1. have direct contact with an elderly person within the scope of employment or professional practice or

2. review or approve an elderly person's financial documents, records, or transactions.

BACKGROUND

1st and 2nd Degree Larceny and 1st Degree Abuse

By law, a person commits 1st degree larceny when he or she deprives (1) someone of property or services valued at over $20,000 or of any value if obtained through extortion or (2) a public community of property valued at over $2,000 by fraud. This crime is a class B felony punishable by up to 20 years in prison, a fine of up to $15,000, or both (CGS 53a-122).

By law, a person commits 2nd degree larceny when he or she deprives (1) someone of property or services valued at over $10,000; (2) a public community of property valued at $2,000 or less by fraud; or (3) someone of property regardless of value when it is actually taken from the person's body or it is taken by embezzlement, false pretenses, of false promise from a victim who is at least age 60, blind, or physically disabled. A person also commits this crime by taking telecommunications wire, cable, or equipment and interrupting emergency telecommunications service. This crime is a class C felony punishable by up to 10 years in prison, a fine of up to $10,000, or both (CGS 53a-123).

By law, a person commits 1st degree abuse when he or she intentionally abuses an elderly, blind, or disabled person or a person with intellectual disabilities and causes serious physical injury. This crime is a class C felony (CGS 53a-321).

Related Bill

sSB 706, File 198, adds licensed or certified emergency medical service providers to the list of people who are mandated reporters, limits the types of patient advocates who are mandated reporters, and expands training requirements for certain entities that care for someone age 60 or older.

sSB 896, File 294 as amended by Senate Amendment “A,” contains a number of provisions including changing definitions related to reporting suspected elderly exploitation, training mandated reporters, and protective investigations and DSS services effective October 1, 2015.

COMMITTEE ACTION

Aging Committee

Joint Favorable Substitute

Yea

13

Nay

0

(03/05/2015)

Banking Committee

Joint Favorable

Yea

13

Nay

3

(04/21/2015)

Judiciary Committee

Joint Favorable

Yea

39

Nay

3

(05/05/2015)