2018 -- H 8352 AS AMENDED

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LC005986

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO CRIMINAL OFFENSES -- ABUSE AND EXPLOITATION OF ELDERS--

ABUSE AND ISOLATION OF ELDERS OR DEPENDENT ADULTS -- THE PETER FALK

CRIMINAL ISOLATION OF ELDERS ACT

     

     Introduced By: Representatives Edwards, Blazejewski, Newberry, Filippi, and Amore

     Date Introduced: June 22, 2018

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 11-68-1 of the General Laws in Chapter 11-68 entitled

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"Exploitation of Elders" is hereby amended to read as follows:

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     11-68-1. Definitions.

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     As used in this chapter:

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     (1) "Business relationship" means a relationship between two (2) or more individuals or

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entities where there exists an oral or written contract or agreement for goods or services.

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     (2) "Caregiver" means a person who has been entrusted with or has assumed

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responsibility for the care or the property of an elder person. Caregiver includes, but is not limited

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to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health

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care providers, and employees and volunteers of elder care facilities.

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     (3) "Deception" means misrepresenting or concealing a material fact relating to:

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     (i) Services rendered, disposition of property, or use of property, when such services or

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property are intended to benefit an elder person; or

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     (ii) Terms of a contract or agreement entered into with an elder person; or

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     (iii) An existing or preexisting condition of any property involved in a contract or

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agreement entered into with an elder person; or

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     (iv) Using any misrepresentation, false pretense, or false promise in order to induce,

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encourage or solicit an elder person to enter into a contract or agreement.

 

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     (4) "Elder person" means a person sixty-five (65) sixty (60) years of age or older.

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     (5) "Intimidation" means the communication by word or act to an elder person that the

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elder person will be deprived of food, nutrition, clothing, shelter, supervision, medicine, medical

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services, money, or financial support or will suffer physical violence.

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     (6) "Lacks capacity to consent" means an impairment by reason of mental illness,

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developmental disability, organic brain disorder, physical illness or disability, short-term memory

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loss, or other cause, that causes an elder person to lack sufficient understanding or capacity to

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make or communicate reasonable decisions concerning the elder person's person or property.

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     (7) "Position of trust and confidence" with respect to an elder person means the position

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of a person who:

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     (i) Is a spouse, adult child, or other relative by blood or marriage of the elder person;

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     (ii) Is a joint tenant or tenant in common with the elder person;

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     (iii) Has a legal or fiduciary relationship with the elder person including, but not limited

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to, a court-appointed or voluntary guardian, trustee, attorney, or conservator;

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     (iv) Is the caregiver of the elder person; or

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     (v) Is any other person who has been entrusted with or has assumed responsibility for the

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use or management of the elder person's funds, assets, or property.

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     SECTION 2. Title 11 of the General Laws entitled "CRIMINAL OFFENSES" is hereby

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amended by adding thereto the following chapter:

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CHAPTER 68.1

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ABUSE AND ISOLATION OF ELDERS OR DEPENDENT ADULTS – THE PETER FALK

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CRIMINAL ISOLATION OF ELDERS ACT

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     11-68.1-1. Short title.

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     This chapter shall be known and may be cited as the "Peter Falk Criminal Isolation of

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Elders Act."

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     11-68.1-2. Definitions.

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     As used in this chapter:

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     (1) "Abuse" means physical abuse, sexual abuse, and/or emotional abuse of an elder

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person or dependent adult:

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     (i) "Emotional abuse" means a pattern of willful infliction of mental or emotional harm

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upon an elder or dependent adult by threat, intimidation, isolation or other abusive conduct.

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     (ii) "Physical abuse" means the willful infliction of physical pain or injury including, but

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not limited to, slapping, bruising or restraining upon an elder person or dependent adult.

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     (iii) "Sexual abuse" means the infliction of non-consensual sexual contact of any kind

 

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upon an elder person. Sexual abuse includes, but is not limited to, sexual assault, rape, sexual

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misuse, or exploitation of an elder person or dependent adult, as well as threats of sexual abuse

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where the perpetrator has the intent and the capacity to carry out the threatened abuse.

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      (2) "Caregiver" means a person who has been entrusted with or has assumed

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responsibility for the care, custody, or control of, whether for pecuniary gain, by contract, or as a

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result of the ties of friendship or who stands in a position of trust with, an elder person or

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dependent adult. Caregiver includes, but is not limited to, caretakers, relatives, court-appointed

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guardians, adult household members, conservators, attorney-in-fact, neighbors, health care

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providers, and employees and volunteers of elder care facilities.

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     (3) "Dependent adult" means any individual eighteen (18) years of age, who has a

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physical or mental impairment that restricts their ability to carry out normal activities or to protect

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their rights. The term includes, but is not limited to, persons who have physical or developmental

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disabilities or whose physical or mental capacity have diminished because of age.

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     (4) "Elder person" means a person sixty (60) years of age or older.

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     (5) "Isolate" means therestriction of personal rights retained by the elder or dependent

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adult, including, but not limited to, the right to receive visitors, telephone calls, and personal mail

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unless the restriction of personal rights is authorized by court order.

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     (6) "Neglect" means the willful failure by a caregiver or other person with a duty of care

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to provide goods or services necessary to avoid physical harm, mental harm, or mental illness to

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an elder person, including, but not limited to, "abandonment" (withdrawal of necessary

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assistance) and denial of food or health related services.

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     (7) "Position of trust" means a person who:

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     (i) Is a spouse, adult child, or other relative by blood or marriage of the elder person or

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dependent adult;

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     (ii) Has a legal or fiduciary relationship with the elder person including, but not limited

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to, a court-appointed or voluntary guardian, trustee, attorney, or conservator;

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     (iii) Is the caregiver of the elder person; or

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     (iv) Is any other person who has been entrusted with or has assumed responsibility for the

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care, custody, or control of the elder person or dependent adult.

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     (8) "Willful" means intentional, conscious and directed toward achieving a purpose.

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     11-68.1-3. Abuse or isolation of an elder person or dependent adult prohibited.

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     Any person, including any caretaker defined in this chapter, is guilty of isolation of an

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elder person or dependent adult if the person willfully isolates an elder person or dependent adult.

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     11-68.1-4. Penalties for violations.

 

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     (a) Any person convicted of abuse or isolation of an elder or dependent adult shall be

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guilty of a felony and be imprisoned not exceeding three (3) years or subject to a fine of three

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thousand dollars ($3,000) or both.

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     (b) In addition to any sentence imposed pursuant to subsection (a) of this section any

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person convicted of violating this section may be required to undergo appropriate counseling as a

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condition of any sentence imposed and provided, further, that the costs of the counseling so

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imposed shall be paid by the defendant when possible.

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     SECTION 3. Section 33-15-18.1 of the General Laws in Chapter 33-15 entitled "Limited

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Guardianship and Guardianship of Adults" is hereby amended to read as follows:

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     33-15-18.1. Rights of persons subject to limited guardianship, guardianship and

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conservatorship.

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     (a) Unless specifically authorized by court order, a limited guardian, guardian, or

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conservator shall not restrict a ward's right of communication, visitation, or interaction with other

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persons, including the right to receive visitors, telephone calls, or personal mail. If a ward is

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unable to express consent to communication, visitation, or interaction with a person due to a

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physical or mental condition, then consent of the ward may be presumed based on the ward's

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prior relationship history with the person.

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     (b) A limited guardian, guardian, or conservator may, for good cause shown, move the

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court to have restrictions placed on a person's ability to communicate, visit, or interact with a

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ward in accordance with subsection (c) of this section. Good cause means and includes:

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     (1) Whether any protective orders have been issued to protect the ward from the person

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seeking access to the ward;

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     (2) Whether abuse, neglect, or financial exploitation of the ward by the person seeking

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access to the ward has occurred or is likely to occur;

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     (3) Documented wishes of the ward to reject communication, visitation, or interaction

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with specific persons; or

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     (4) Any other factors deemed relevant by the court.

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     (c) (1) A court may order restrictions placed on the communications, visitations, or

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interactions a person may have with a ward upon a showing of good cause by the limited

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guardian, guardian, or conservator.

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     (2) In determining whether to issue an order in accordance with subsection (c)(1) of this

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section, the following factors shall be considered by the court:

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     (i) Whether any protective orders have been issued to protect the ward from the person

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seeking access to the ward;

 

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     (ii) Whether the person has been charged with abuse, neglect, or financial exploitation of

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the ward;

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     (iii) Whether the ward expresses a desire to communicate, visit, or interact with the

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person;

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     (iv) If the ward is unable to communicate, whether a properly executed living will,

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durable power of attorney, or advance directive contains a preference by the ward with regard to

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the person's communication, visitation, or interaction with the ward; and

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     (v) Any other factors deemed relevant by the court.

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     (3) Prior to issuing an order pursuant to subsection (c) of this section, the court shall

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consider the following restrictions in the order listed:

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     (i) Placing reasonable time, manner, or place restrictions on communication, visitation, or

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interaction between the ward and another person based on the history between the ward and the

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person or the ward's wishes, or both;

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     (ii) Requiring that communication, visitation, or interaction between the ward and

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another person be supervised; or

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     (iii) Denying communication, visitation, or interaction between the ward and another

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person, provided, that, unless the court finds that the person poses a threat to the ward, supervised

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communication, visitation, or interaction under subsection (c)(3)(ii) of this section shall be

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ordered prior to the denial of any communication, visitation, or interaction.

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     (d) (1) If any interested person, including the ward, reasonably believes that subsection

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(a) of this section or an order issued pursuant to subsection (c)(1) of this section has been

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violated, then such person may move the court to:

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     (i) Require the limited guardian, guardian, or conservator to grant a person access to the

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ward;

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     (ii) Restrict, or further restrict, a person's access to the ward;

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     (iii) Modify the limited guardian, guardian, or conservator's duties; or

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     (iv) Discharge and replace the limited guardian, guardian, or conservator pursuant to §

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33-15-18.

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     (2) Notwithstanding actions available to the court pursuant to subsection (d)(1) of this

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section, a limited guardian, guardian, or conservator who is found to be knowingly isolating a

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ward and who has violated subsection (a) of this section or an order issued pursuant to subsection

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(c) of this section shall be subject to discharge and replacement pursuant to § 33-15-18.

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     (e) (1) Except as provided in subsection (e)(2) of this section, the court shall schedule a

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hearing on a motion filed pursuant to subsection (b) or (d) of this section no later than thirty (30)

 

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days after the date the motion is filed. The court may, in its discretion, order mediation to be

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conducted between the parties and the ward prior to the hearing. If mediation results in agreement

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of the parties and the ward with regard to communication, visitation, or interaction with the ward,

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the agreement shall be approved and memorialized in an order by the court.

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     (2) (i) If the motion states that the ward's health is in significant decline or that the ward's

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death may be imminent, the court shall conduct an emergency hearing as soon as practicable, but

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no later than ten (10) days after the motion is filed.

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     (ii) When a scheduling order is issued for a motion filed pursuant to subsection (e)(2)(i)

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of this section, the court shall also order that supervised communication, visitation, or interaction

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with the ward be granted during the period prior to the hearing.

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     (3) Notice of the hearing, a copy of the motion, and a copy of any order issued pursuant

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to subsection (e)(2)(ii) of this section, if applicable, shall be personally served upon the ward and

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any person against whom the motion is filed, and nothing in this section shall affect the ward's

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right to appear and be heard in the proceedings.

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     (f) (1) The court may award the prevailing party in any action brought under this section

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court costs and reasonable attorneys' fees; provided, however, that an award of court costs or

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attorneys' fees shall not be paid out of the ward's estate.

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     (2) The court, upon motion or upon its own initiative, shall impose upon a limited

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guardian, guardian, or conservator who is found to be knowingly isolating a ward and who has

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violated subsection (a) of this section or an order issued pursuant to subsection (c) of this section

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an appropriate sanction, including an order to pay court costs and reasonable attorneys' fees of the

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other party or parties; provided, however, that no sanction shall be paid out of the ward's estate.

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     (g) A limited guardian, guardian, or conservator shall promptly notify a ward's closest

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relatives and any person designated by the ward to be notified, along with the appropriate contact

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information and upon the limited guardian, guardian, or conservator's knowledge of such event

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and information, in the event:

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     (1) The ward's residence has changed;

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     (2) The ward is staying at a location other than the ward's residence for more than seven

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(7) consecutive days;

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     (3) The ward is admitted to or discharged from a nursing home or assisted-care living

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facility as defined in §§ 23-17-2 and 23-17.4-2;

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     (4) The ward is admitted to a medical facility for:

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     (i) Emergency care in response to a life-threatening injury or medical condition; or

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     (ii) Acute care; or

 

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     (iii) The ward dies, provided, that notification of the ward's death shall be made in person

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or by telephone.

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     (h) (1) A limited guardian, guardian, or conservator is not required to provide notice in

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accordance with subsection (g) of this section if:

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     (i) A person who is entitled to notice under subsection (g) of this section informs the

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limited guardian, guardian, or conservator, in writing, that the person does not wish to receive

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such notice; or

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     (ii) The ward or a court order has expressly prohibited the limited guardian, guardian, or

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conservator from providing notice to the person.

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     (2) A limited guardian, guardian, or conservator shall not provide contact information in

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accordance with subsection (g) of this section if an order of protection or restraining order has

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been issued against the person on behalf of the ward.

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     (i)(1) As used in this section, the term, "close relative" means:

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     (i) The protected person's spouse;

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     (ii) An adult child of the protected person;

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     (iii) A parent of the protected person; or

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     (iv) An adult nearest in kinship to the protected person.

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     (2) The closest relative shall not be the person who is a guardian of the protected person.

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     (3) If two (2) persons qualify as the closest relative, the notice required pursuant to this

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section shall be provided to both person. If more than two (2) persons qualify as the closest

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relative, the notice shall be provided to the two (2) oldest persons from among those persons who

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qualify.

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     (j) A court may, prior to considering any action available pursuant to this section, require

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the parties subject to the prospective court order to undergo a mediation process approval by the

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court. Mediation recommended pursuant to this section shall be provided by the department of

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elderly affairs and the department is authorized and directed to promulgate rules and regulations

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necessary to implement this section.

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     SECTION 4. Section 42-66-4.1 of the General Laws in Chapter 42-66 entitled "Elderly

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Affairs Department" is hereby amended to read as follows:

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     42-66-4.1. Definitions.

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     As used in this chapter:

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     (1) "Abuse" means physical abuse, sexual abuse, and/or emotional abuse of an elderly

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person by a caregiver as defined in subsection (5).

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     (a) "Physical abuse" means the willful infliction of physical pain or injury (e.g. slapping,

 

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bruising or restraining) upon an elderly person.

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     (b) "Sexual abuse" means the infliction of non-consensual sexual contact of any kind

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upon an elderly person. Sexual abuse includes, but is not limited to, sexual assault, rape, sexual

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misuse or exploitation of an elder, as well as threats of sexual abuse where the perpetrator has the

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intent and the capacity to carry out the threatened abuse.

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     (c) "Emotional abuse" means a pattern of willful infliction of mental or emotional harm

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upon an elder by threat, intimidation, isolation or other abusive conduct.

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     (2) "Exploitation" means the fraudulent or otherwise illegal, unauthorized or improper act

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or process of an individual, including, but not limited to, a caregiver or fiduciary, that uses the

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resources of an elder for monetary or personal benefit, profit, gain, or that results in depriving an

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elder of rightful access to, or use of, benefits, resources, belongings, or assets by use of undue

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influence, harassment, duress, deception, false representation or false pretenses.

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     (3) "Neglect" means the willful failure by a caregiver or other person with a duty of care

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to provide goods or services necessary to avoid physical harm, mental harm or mental illness to

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an elderly person, including, but not limited to, "abandonment" (withdrawal of necessary

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assistance) and denial of food or health related services.

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     (4) "Willful" means intentional, conscious and directed toward achieving a purpose.

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     (5) "Caregiver" means a person who has assumed the responsibility for the care of the

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elderly person voluntarily, by contract or by order of a court of competent jurisdiction, or who is

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otherwise legally responsible for the care of the elderly person. Caregiver includes, but is not

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limited to, caretakers, relatives, court-appointed guardians, adult household members, neighbors,

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health care providers, and employees and volunteers of elder care facilities.

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     (6) "Self-neglect" means a pattern of behavior in an elderly person that directly,

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imminently and significantly threatens his/her own health and/or, safety. Self-neglect includes,

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but is not limited to, an inability or an incapacity to provide self with food, water, shelter, or

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safety to the point of establishing imminent risk of any of the harm(s) described in the

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immediately preceding sentence.

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     (7) "Protective services" means services and/or action intended to prevent and/or alleviate

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the abuse, neglect, exploitation or self-neglect of elderly persons. Protective services may include

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supervision, counseling, and assistance in securing health and supportive services, safe living

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accommodations and legal intervention.

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     (8) "Elderly person" or "elder" means any person sixty (60) years of age or older.

 

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     SECTION 5. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL OFFENSES -- ABUSE AND EXPLOITATION OF ELDERS--

ABUSE AND ISOLATION OF ELDERS OR DEPENDENT ADULTS -- THE PETER FALK

CRIMINAL ISOLATION OF ELDERS ACT

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     This act would criminalize isolation of an elder or dependent adult and would provide

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that certain notification requirements be fulfilled on behalf of elder persons or dependent adults.

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     This act would take effect upon passage.

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