Bill Text: TX HB3972 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to the financial exploitation of certain elderly persons.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2017-04-11 - Left pending in committee [HB3972 Detail]
Download: Texas-2017-HB3972-Introduced.html
85R12892 EES-D | ||
By: Johnson of Dallas | H.B. No. 3972 |
|
||
|
||
relating to the financial exploitation of certain elderly persons. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. The Securities Act (Article 581-1 et seq., | ||
Vernon's Texas Civil Statutes) is amended by adding Section 45 to | ||
read as follows: | ||
Sec. 45. PROTECTION OF ELDERLY PERSONS FROM FINANCIAL | ||
EXPLOITATION. A. In this section: | ||
(1) "Adult protective services division" means the | ||
adult protective services division of the Department of Family and | ||
Protective Services. | ||
(2) "Elderly person" has the meaning assigned by | ||
Section 48.002, Human Resources Code. | ||
(3) "Financial exploitation" means the wrongful or | ||
negligent taking, appropriation, obtaining, retention, or use of | ||
money or other property of another person by a person who has a | ||
relationship of confidence or trust with the other person. | ||
Financial exploitation may involve coercion, manipulation, | ||
threats, intimidation, misrepresentation, or the exerting of undue | ||
influence. The term includes: | ||
(A) the breach of a fiduciary relationship, | ||
including the misuse of a durable power of attorney or the abuse of | ||
guardianship powers, that results in the unauthorized | ||
appropriation, sale, or transfer of another person's property; | ||
(B) the unauthorized taking of personal assets; | ||
(C) the misappropriation, misuse, or | ||
unauthorized transfer of another person's money from a personal or | ||
a joint account; and | ||
(D) the negligent or intentional failure to | ||
effectively use another person's income and assets for the | ||
necessities required for the person's support and maintenance. | ||
(4) "Qualified individual" means an agent, an | ||
investment adviser representative, or a person who serves in a | ||
supervisory, compliance, or legal capacity for a dealer or | ||
investment adviser. | ||
B. If a qualified individual rationally believes that | ||
financial exploitation of an elderly person who is an account | ||
holder with the dealer or investment adviser for whom the qualified | ||
individual is providing services has occurred or is occurring, the | ||
qualified individual: | ||
(1) shall submit a report of the suspected financial | ||
exploitation to the Board in accordance with rules adopted under | ||
Subsection E of this section and the adult protective services | ||
division in accordance with Subchapter B-1, Chapter 48, Human | ||
Resources Code; | ||
(2) may notify a third party that has a legal | ||
relationship with the elderly person of the suspected financial | ||
exploitation, unless the qualified individual suspects the third | ||
party of financial exploitation of the elderly person; and | ||
(3) may place a hold on a disbursement from an account | ||
of the elderly person. | ||
C. A qualified individual who submits a report, makes a | ||
notification, or places a hold on a disbursement from an account | ||
under Subsection B of this section is immune from any civil | ||
liability or disciplinary action resulting from the report, | ||
notification, or hold. | ||
D. To the extent permitted by state or federal law, dealers | ||
and investment advisers shall comply with requests for information | ||
made in accordance with an investigation of suspected financial | ||
exploitation of an elderly person. | ||
E. The Board by rule shall prescribe the form and content of | ||
the report required to be submitted by a qualified individual to the | ||
Board under Subsection B of this section. | ||
SECTION 2. Subchapter A, Chapter 48, Human Resources Code, | ||
is amended by adding Section 48.008 to read as follows: | ||
Sec. 48.008. CONSOLIDATION OF CERTAIN REPORTS. If | ||
cost-effective and feasible and to the extent permitted by law, the | ||
executive commissioner by rule may consolidate the form and | ||
procedures used to submit a report under Sections 48.051 and | ||
48.072. | ||
SECTION 3. Chapter 48, Human Resources Code, is amended by | ||
adding Subchapter B-1 to read as follows: | ||
SUBCHAPTER B-1. FINANCIAL EXPLOITATION OF ELDERLY PERSONS | ||
Sec. 48.071. DEFINITIONS. In this subchapter, "financial | ||
exploitation" and "qualified individual" have the meanings | ||
assigned by Section 45, The Securities Act (Article 581-45, | ||
Vernon's Texas Civil Statutes). | ||
Sec. 48.072. CERTAIN REPORTS OF SUSPECTED FINANCIAL | ||
EXPLOITATION. (a) The executive commissioner, after consultation | ||
with the securities commissioner, by rule shall prescribe the form | ||
and content of the report required to be submitted by a qualified | ||
individual under Subsection B(1), Section 45, The Securities Act | ||
(Article 581-45, Vernon's Texas Civil Statutes). A report | ||
submitted by a qualified individual under Subsection B(1), Section | ||
45, The Securities Act (Article 581-45, Vernon's Texas Civil | ||
Statutes), constitutes a report of suspected financial | ||
exploitation of an elderly person for purposes of this subchapter. | ||
(b) In adopting rules under this section, the executive | ||
commissioner shall ensure that a report of suspected financial | ||
exploitation of an elderly person described by Subsection (a) | ||
includes to the extent possible the same information required to be | ||
included in a report under Section 48.051(d). | ||
(c) A qualified individual who submits a report to the | ||
department of suspected financial exploitation of an elderly person | ||
under Subsection B(1), Section 45, The Securities Act (Article | ||
581-45, Vernon's Texas Civil Statutes), in accordance with this | ||
section is not required to make an additional report of suspected | ||
abuse, neglect, or exploitation under Section 48.051 for the same | ||
conduct constituting the financial exploitation reported under | ||
this section. | ||
Sec. 48.073. ASSESSMENT, INVESTIGATION, AND DISPOSITION OF | ||
REPORTS. (a) The executive commissioner by rule shall adopt | ||
procedures for the assessment, investigation, and disposition of a | ||
report of suspected financial exploitation of an elderly person | ||
received under Subsection B(1), Section 45, The Securities Act | ||
(Article 581-45, Vernon's Texas Civil Statutes), that must be | ||
similar to the procedures used for the assessment, investigation, | ||
and disposition of a report of abuse, neglect, or exploitation | ||
received by the department under this chapter, other than a report | ||
received under Subchapter F. | ||
(b) The procedures adopted under this section must require: | ||
(1) a risk assessment similar to the assessment | ||
required under Section 48.004; | ||
(2) investigations similar to the investigations | ||
required under Subchapter D, including requirements that the | ||
department: | ||
(A) take action on a report within the time frame | ||
and in the manner provided by Section 48.151; | ||
(B) perform an interview with the elderly person | ||
similar to the interview required by Section 48.152; | ||
(C) if appropriate, implement a system to | ||
investigate complex cases similar to the system implemented under | ||
Section 48.1521; | ||
(D) report criminal conduct to appropriate law | ||
enforcement agencies similar to the reports under Section 48.1522; | ||
and | ||
(E) review certain cases involving multiple | ||
reports under Section 48.051 and this subchapter similar to the | ||
review performed under Section 48.1523; and | ||
(3) a determination of services similar to the | ||
determination required by Section 48.202. | ||
Sec. 48.074. AUTHORITY OF DEPARTMENT OR OTHER AGENCY. The | ||
department or another appropriate state agency has the authority to | ||
act on or with respect to an allegation of financial exploitation of | ||
an elderly person under this subchapter to the same extent the | ||
department or other agency has the authority to act on or with | ||
respect to an allegation of abuse, neglect, or exploitation under | ||
Subchapter B. | ||
Sec. 48.075. ACCESS TO INVESTIGATION. (a) To implement an | ||
investigation of reported financial exploitation of an elderly | ||
person, the probate court, as defined by Section 22.007, Estates | ||
Code, may authorize entry into the place of residence of an elderly | ||
person. | ||
(b) A peace officer shall accompany and assist the person | ||
making a court-ordered entry under this section if the court | ||
determines that action is necessary. | ||
Sec. 48.076. INTERFERENCE WITH INVESTIGATION OR SERVICES | ||
PROHIBITED. (a) Notwithstanding Section 1151.001, Estates Code, a | ||
person, including a guardian, may not interfere with: | ||
(1) an investigation by the department or by another | ||
protective services agency of suspected financial exploitation of | ||
an elderly person; or | ||
(2) the provision of protective services to an elderly | ||
person. | ||
(b) The department or another protective services agency | ||
may petition the appropriate court to enjoin any interference with: | ||
(1) an investigation of suspected financial | ||
exploitation of an elderly person under this subchapter; or | ||
(2) the provision of protective services, such as | ||
removing an elderly person to safer surroundings or safeguarding | ||
the elderly person's resources from financial exploitation. | ||
Sec. 48.077. MEMORANDUM OF UNDERSTANDING. The commission, | ||
the securities commissioner, and the department shall enter into a | ||
memorandum of understanding regarding the reporting and | ||
investigation of suspected financial exploitation of an elderly | ||
person under this subchapter. | ||
Sec. 48.078. CONFIDENTIALITY. (a) All files, reports, | ||
records, communications, and working papers used or developed by | ||
the department or other state agency in an investigation made under | ||
this subchapter or in providing services as a result of an | ||
investigation are confidential and not subject to disclosure under | ||
Chapter 552, Government Code. | ||
(b) The department or investigating state agency may | ||
establish procedures to exchange with another state agency or | ||
governmental entity information that is necessary for the | ||
department, state agency, or governmental entity to properly | ||
execute its respective duties and responsibilities to provide | ||
services to elderly persons under this chapter or other law. An | ||
exchange of information under this subsection does not affect | ||
whether the information is subject to disclosure under Chapter 552, | ||
Government Code. | ||
SECTION 4. Subchapter C, Chapter 48, Human Resources Code, | ||
is amended by adding Section 48.104 to read as follows: | ||
Sec. 48.104. NONAPPLICABILITY. (a) This subchapter does | ||
not apply to a report of financial exploitation of an elderly person | ||
made under Subchapter B-1. | ||
(b) The confidentiality of information received or provided | ||
by the department in connection with a report of financial | ||
exploitation of an elderly person made under Subchapter B-1 is | ||
governed by Section 48.078. | ||
SECTION 5. Subchapter D, Chapter 48, Human Resources Code, | ||
is amended by adding Section 48.1511 to read as follows: | ||
Sec. 48.1511. NONAPPLICABILITY. This subchapter does not | ||
apply to an investigation conducted under Subchapter B-1 unless the | ||
executive commissioner by rule requires the application of a | ||
provision of this subchapter. | ||
SECTION 6. This Act takes effect September 1, 2017. |