Bill Text: MN HF424 | 2011-2012 | 87th Legislature | Introduced
Bill Title: Incapacitated and vulnerable adult neglect and abuse remedies provided.
Sponsorship: Partisan Bill (Republican 2)
Status: (Introduced - Dead) 2011-02-17 - Author added Downey [HF424 Detail]
Download: Minnesota-2011-HF424-Introduced.html
1.2relating to civil actions; providing certain remedies for neglect, abuse, and other
1.3actions against incapacitated and vulnerable adults;proposing coding for new
1.4law in Minnesota Statutes, chapter 604.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. [604.21] DUTY TO AN INCAPACITATED OR VULNERABLE
1.7ADULT; FINANCIAL EXPLOITATION; CIVIL PENALTIES.
1.8 Subdivision 1. Definitions. (a) The terms defined in this subdivision have the
1.9meanings given for purposes of this section.
1.10(b) "De facto conservator" means any person who takes possession of the estate of
1.11an incapacitated or vulnerable adult, without right or lawful authority.
1.12(c) "De facto guardian" means any person who takes possession of the person of an
1.13incapacitated or vulnerable adult, without right or lawful authority.
1.14(d) "Deception" includes but is not limited to:
1.15(1) creating or confirming a false impression in an incapacitated or vulnerable adult's
1.16mind;
1.17(2) failing to correct a false impression that the person is responsible for creating or
1.18confirming in an incapacitated or vulnerable adult's mind;
1.19(3) making a promise to an incapacitated or vulnerable adult that the person does not
1.20intend to perform or that the person knows will not or cannot be performed. A person's
1.21failure to perform a promise is not by itself sufficient proof that the person did not intend
1.22to perform the promise;
1.23(4) misrepresenting or concealing a material fact that relates to the terms of a
1.24contract or an agreement that the person enters into with the incapacitated or vulnerable
2.1adult or that relates to the existing or preexisting condition of any of the property involved
2.2in a contract or an agreement; or
2.3(5) using any material misrepresentation, false pretense, or false promise to induce,
2.4encourage, or solicit an incapacitated or vulnerable adult to enter into a contract or an
2.5agreement.
2.6(e) "Enterprise" means any corporation, partnership, association, labor union, or
2.7other legal entity, or any group of persons associated in fact although not a legal entity,
2.8which is involved with providing care to, or found to have involved the assets or property
2.9of, an incapacitated or vulnerable adult.
2.10(f) "Exploitation" means the illegal or improper use of an incapacitated or vulnerable
2.11adult or resources for another's profit or advantage.
2.12(g) "Incapacitated" has the meaning given in section 524.5-102, subdivision 6.
2.13(h) "Informed consent" means any of the following:
2.14(1) a written expression by the person that the person fully understands the potential
2.15risks and benefits of the withdrawal of food, water, medication, medical services, shelter,
2.16cooling, heating, or other services necessary to maintain minimum physical or mental
2.17health and that the person specifically expresses that the services be withdrawn;
2.18(2) consent to withdraw food, water, medication, medical services, shelter, cooling,
2.19heating, or other services necessary to maintain minimum physical or mental health as
2.20permitted by an order of a court of competent jurisdiction;
2.21(3) a health care declaration made pursuant to chapter 145C; or
2.22(4) consent by another person under a durable power of attorney relating to health
2.23care services to withdraw food, water, medication, medical services, shelter, cooling,
2.24heating, or other services necessary to maintain minimum physical or mental health.
2.25(i) "Intimidation" includes threatening to deprive an incapacitated or vulnerable
2.26adult of food, nutrition, shelter, necessary medication, medical treatment, insurance
2.27coverage, or necessary finances.
2.28(j) "Neglect" means a pattern of conduct without the person's informed consent
2.29resulting in deprivation of food, water, medication, medical services, shelter, cooling,
2.30heating, or other services necessary to maintain minimum physical or mental health.
2.31(k) "Position of trust and confidence" includes but is not limited to:
2.32(1) one who has assumed a duty to provide care to an incapacitated or vulnerable
2.33adult;
2.34(2) a joint tenant or a tenant in common with an incapacitated or vulnerable adult; or
2.35(3) one who is in a fiduciary relationship with an incapacitated or vulnerable adult
2.36including a de facto guardian or de facto conservator.
3.1(l) "Vulnerable adult" means an individual who is 18 years of age or older who is
3.2unable to protect himself or herself from abuse, neglect, or exploitation by others because
3.3of a physical or mental impairment.
3.4 Subd. 2. Duties; liability. A person who causes or permits the life of an adult to
3.5be endangered or that person's health to be injured or endangered by neglect is subject
3.6to civil remedies under this section if the person has been employed to provide care, has
3.7assumed a position to provide care acting as a de facto guardian or de facto conservator,
3.8or has been appointed by a court as a guardian or conservator to provide care to an
3.9incapacitated or vulnerable adult.
3.10A person who is in a position of trust and confidence to an incapacitated or
3.11vulnerable adult shall act for the benefit of that person to the same extent as a trustee
3.12pursuant to section 501B.81. A person who is in a position of trust and confidence and
3.13who by intimidation or deception knowingly takes control, title, use, or management of
3.14an incapacitated or vulnerable adult's asset real or personal property with the intent to
3.15permanently deprive that person of the asset or property is liable under this section.
3.16 Subd. 3. Exclusion. An adult is not abused, neglected, or in need of protective
3.17services for the sole reason that the adult relies on treatment from a recognized religious
3.18method of healing in lieu of medical treatment.
3.19 Subd. 4. Standing; assignment. An incapacitated or vulnerable adult whose life or
3.20health is being or has been endangered or injured by neglect, abuse, or exploitation may
3.21file an action in district court against any person or enterprise that has been employed to
3.22provide care, that has assumed a legal duty to provide care, or that has been appointed
3.23by a court to provide care to the incapacitated or vulnerable adult for having caused or
3.24permitted endangerment or injury. An interested person or a person who is a spouse,
3.25personal representative, child, adopted child, sibling, any other immediate family member,
3.26a guardian as provided under section 524.5-313, or conservator as provided under section
3.27524.5-417 may commence a civil action in district court or probate court to obtain
3.28remedies on behalf of the incapacitated or vulnerable adult. The rights of the person
3.29to commence an action may be assigned to another party with the showing of a sworn
3.30assignment duly executed and filed with the court at the commencement of the action
3.31or at the time of the assignment.
3.32 Subd. 5. Statute of limitations; survivability of action. An action under this
3.33section may be commenced within three years after discovery of the cause of action, and
3.34the cause of action or the right to bring a cause of action shall not be limited, affected,
3.35or extinguished by the death of the incapacitated or vulnerable adult. Causes of action
4.1time-barred by the limitation period applicable on the day before the effective date of this
4.2section are revived and may be brought until one year after the effective date of this section.
4.3 Subd. 6. Remedies. (a) Prior to a determination of liability, relief may include,
4.4but is not limited to, entering restraining orders or temporary injunctions or taking such
4.5other actions, including the acceptance of satisfactory performance bonds, the creation
4.6of receiverships and the appointment of qualified receivers, and the enforcement of
4.7constructive trusts, as the court deems proper.
4.8(b) After a determination of liability, relief may include, but is not limited to:
4.9(1) an award in an amount up to three times the amount of monetary damages
4.10suffered by an incapacitated or vulnerable adult;
4.11(2) punitive damages;
4.12(3) ordering any person to divest any direct or indirect interest the person has in
4.13an enterprise;
4.14(4) imposing reasonable restrictions, including permanent injunctions, on the future
4.15activities or investments of any person, including prohibiting any person from engaging
4.16in the same type of endeavor or conduct;
4.17(5) ordering dissolution or reorganization of any enterprise; and
4.18(6) awarding costs and reasonable attorney fees, including reasonable expert witness
4.19fees or consultant fees, to persons injured by the conduct described in this section.
4.20(c) A person who violates this section forfeits all benefits with respect to the estate
4.21of the deceased incapacitated or vulnerable adult, including an intestate share, an elective
4.22share, an omitted spouse's share, an omitted child's share, a homestead allowance, an
4.23exempt property allowance, and a family allowance. If the incapacitated or vulnerable
4.24adult died intestate, the decedent's intestate estate passes as if the person who committed
4.25the violation disclaimed that person's intestate share.
4.26(d) A civil action under this section does not preclude seeking relief under other
4.27civil or criminal law.
4.28 Subd. 7. Effect of criminal conviction. A defendant convicted in any criminal
4.29proceeding regarding incidents that are alleged to be a violation of this section is precluded
4.30from subsequently denying the essential allegations of the criminal offense of which the
4.31defendant was convicted in any proceeding under this section.
4.32EFFECTIVE DATE.This section is effective August 1, 2011.
1.3actions against incapacitated and vulnerable adults;proposing coding for new
1.4law in Minnesota Statutes, chapter 604.
1.5BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. [604.21] DUTY TO AN INCAPACITATED OR VULNERABLE
1.7ADULT; FINANCIAL EXPLOITATION; CIVIL PENALTIES.
1.8 Subdivision 1. Definitions. (a) The terms defined in this subdivision have the
1.9meanings given for purposes of this section.
1.10(b) "De facto conservator" means any person who takes possession of the estate of
1.11an incapacitated or vulnerable adult, without right or lawful authority.
1.12(c) "De facto guardian" means any person who takes possession of the person of an
1.13incapacitated or vulnerable adult, without right or lawful authority.
1.14(d) "Deception" includes but is not limited to:
1.15(1) creating or confirming a false impression in an incapacitated or vulnerable adult's
1.16mind;
1.17(2) failing to correct a false impression that the person is responsible for creating or
1.18confirming in an incapacitated or vulnerable adult's mind;
1.19(3) making a promise to an incapacitated or vulnerable adult that the person does not
1.20intend to perform or that the person knows will not or cannot be performed. A person's
1.21failure to perform a promise is not by itself sufficient proof that the person did not intend
1.22to perform the promise;
1.23(4) misrepresenting or concealing a material fact that relates to the terms of a
1.24contract or an agreement that the person enters into with the incapacitated or vulnerable
2.1adult or that relates to the existing or preexisting condition of any of the property involved
2.2in a contract or an agreement; or
2.3(5) using any material misrepresentation, false pretense, or false promise to induce,
2.4encourage, or solicit an incapacitated or vulnerable adult to enter into a contract or an
2.5agreement.
2.6(e) "Enterprise" means any corporation, partnership, association, labor union, or
2.7other legal entity, or any group of persons associated in fact although not a legal entity,
2.8which is involved with providing care to, or found to have involved the assets or property
2.9of, an incapacitated or vulnerable adult.
2.10(f) "Exploitation" means the illegal or improper use of an incapacitated or vulnerable
2.11adult or resources for another's profit or advantage.
2.12(g) "Incapacitated" has the meaning given in section 524.5-102, subdivision 6.
2.13(h) "Informed consent" means any of the following:
2.14(1) a written expression by the person that the person fully understands the potential
2.15risks and benefits of the withdrawal of food, water, medication, medical services, shelter,
2.16cooling, heating, or other services necessary to maintain minimum physical or mental
2.17health and that the person specifically expresses that the services be withdrawn;
2.18(2) consent to withdraw food, water, medication, medical services, shelter, cooling,
2.19heating, or other services necessary to maintain minimum physical or mental health as
2.20permitted by an order of a court of competent jurisdiction;
2.21(3) a health care declaration made pursuant to chapter 145C; or
2.22(4) consent by another person under a durable power of attorney relating to health
2.23care services to withdraw food, water, medication, medical services, shelter, cooling,
2.24heating, or other services necessary to maintain minimum physical or mental health.
2.25(i) "Intimidation" includes threatening to deprive an incapacitated or vulnerable
2.26adult of food, nutrition, shelter, necessary medication, medical treatment, insurance
2.27coverage, or necessary finances.
2.28(j) "Neglect" means a pattern of conduct without the person's informed consent
2.29resulting in deprivation of food, water, medication, medical services, shelter, cooling,
2.30heating, or other services necessary to maintain minimum physical or mental health.
2.31(k) "Position of trust and confidence" includes but is not limited to:
2.32(1) one who has assumed a duty to provide care to an incapacitated or vulnerable
2.33adult;
2.34(2) a joint tenant or a tenant in common with an incapacitated or vulnerable adult; or
2.35(3) one who is in a fiduciary relationship with an incapacitated or vulnerable adult
2.36including a de facto guardian or de facto conservator.
3.1(l) "Vulnerable adult" means an individual who is 18 years of age or older who is
3.2unable to protect himself or herself from abuse, neglect, or exploitation by others because
3.3of a physical or mental impairment.
3.4 Subd. 2. Duties; liability. A person who causes or permits the life of an adult to
3.5be endangered or that person's health to be injured or endangered by neglect is subject
3.6to civil remedies under this section if the person has been employed to provide care, has
3.7assumed a position to provide care acting as a de facto guardian or de facto conservator,
3.8or has been appointed by a court as a guardian or conservator to provide care to an
3.9incapacitated or vulnerable adult.
3.10A person who is in a position of trust and confidence to an incapacitated or
3.11vulnerable adult shall act for the benefit of that person to the same extent as a trustee
3.12pursuant to section 501B.81. A person who is in a position of trust and confidence and
3.13who by intimidation or deception knowingly takes control, title, use, or management of
3.14an incapacitated or vulnerable adult's asset real or personal property with the intent to
3.15permanently deprive that person of the asset or property is liable under this section.
3.16 Subd. 3. Exclusion. An adult is not abused, neglected, or in need of protective
3.17services for the sole reason that the adult relies on treatment from a recognized religious
3.18method of healing in lieu of medical treatment.
3.19 Subd. 4. Standing; assignment. An incapacitated or vulnerable adult whose life or
3.20health is being or has been endangered or injured by neglect, abuse, or exploitation may
3.21file an action in district court against any person or enterprise that has been employed to
3.22provide care, that has assumed a legal duty to provide care, or that has been appointed
3.23by a court to provide care to the incapacitated or vulnerable adult for having caused or
3.24permitted endangerment or injury. An interested person or a person who is a spouse,
3.25personal representative, child, adopted child, sibling, any other immediate family member,
3.26a guardian as provided under section 524.5-313, or conservator as provided under section
3.27524.5-417 may commence a civil action in district court or probate court to obtain
3.28remedies on behalf of the incapacitated or vulnerable adult. The rights of the person
3.29to commence an action may be assigned to another party with the showing of a sworn
3.30assignment duly executed and filed with the court at the commencement of the action
3.31or at the time of the assignment.
3.32 Subd. 5. Statute of limitations; survivability of action. An action under this
3.33section may be commenced within three years after discovery of the cause of action, and
3.34the cause of action or the right to bring a cause of action shall not be limited, affected,
3.35or extinguished by the death of the incapacitated or vulnerable adult. Causes of action
4.1time-barred by the limitation period applicable on the day before the effective date of this
4.2section are revived and may be brought until one year after the effective date of this section.
4.3 Subd. 6. Remedies. (a) Prior to a determination of liability, relief may include,
4.4but is not limited to, entering restraining orders or temporary injunctions or taking such
4.5other actions, including the acceptance of satisfactory performance bonds, the creation
4.6of receiverships and the appointment of qualified receivers, and the enforcement of
4.7constructive trusts, as the court deems proper.
4.8(b) After a determination of liability, relief may include, but is not limited to:
4.9(1) an award in an amount up to three times the amount of monetary damages
4.10suffered by an incapacitated or vulnerable adult;
4.11(2) punitive damages;
4.12(3) ordering any person to divest any direct or indirect interest the person has in
4.13an enterprise;
4.14(4) imposing reasonable restrictions, including permanent injunctions, on the future
4.15activities or investments of any person, including prohibiting any person from engaging
4.16in the same type of endeavor or conduct;
4.17(5) ordering dissolution or reorganization of any enterprise; and
4.18(6) awarding costs and reasonable attorney fees, including reasonable expert witness
4.19fees or consultant fees, to persons injured by the conduct described in this section.
4.20(c) A person who violates this section forfeits all benefits with respect to the estate
4.21of the deceased incapacitated or vulnerable adult, including an intestate share, an elective
4.22share, an omitted spouse's share, an omitted child's share, a homestead allowance, an
4.23exempt property allowance, and a family allowance. If the incapacitated or vulnerable
4.24adult died intestate, the decedent's intestate estate passes as if the person who committed
4.25the violation disclaimed that person's intestate share.
4.26(d) A civil action under this section does not preclude seeking relief under other
4.27civil or criminal law.
4.28 Subd. 7. Effect of criminal conviction. A defendant convicted in any criminal
4.29proceeding regarding incidents that are alleged to be a violation of this section is precluded
4.30from subsequently denying the essential allegations of the criminal offense of which the
4.31defendant was convicted in any proceeding under this section.
4.32EFFECTIVE DATE.This section is effective August 1, 2011.
