Statutes
Additional civil penalties for consumer frauds committed against elders
§480-13.5 Additional civil penalties for consumer frauds committed against elders. (a) If a person commits a violation under section 480-2 which is directed toward, targets, or injures an elder, a court, in addition to any other civil penalty, may impose a civil penalty not to exceed $10,000 for each violation.
(b) In determining the amount, if any, of civil penalty under subsection (a), the court shall consider the following:
(1) Whether the person’s conduct was in wilful disregard of the rights of the elder;
(2) Whether the person knew or should have known that the person’s conduct was directed toward or targeted an elder;
(3) Whether the elder was more vulnerable to the person’s conduct than other consumers because of age, poor health, infirmity, impaired understanding, restricted mobility, or disability;
(4) The extent of injury, loss, or damages suffered by the elder; and
(5) Any other factors the court deems appropriate.
(c) As used in this chapter, “elder” means a consumer who is sixty-two years of age or older. [L 1998, c 179, §1]
Cross References
Some other actions or penalties for violations committed against elders, see § §28-94, 412:3-114.5, 444-10.7, 454-4.5, 480-13, 485A-603.5, 485A-604.5, and 487-14.
Case Notes
Where complaints alleged that credit card providers violated this section and § §480-2 and 481A-3 and unjust enrichment, the claims were not preempted by the National Bank Act. Also, because the complaints unambiguously disclaimed class status, the actions could not be removed under the Class Action Fairness Act of 2005. 761 F.3d 1027 (2014).
Discussed: 907 F. Supp. 2d 1188 (2012).
Social Services, Department of Human Services, Definitions
§346-222 Definitions. For the purposes of this part:
“Abuse” means any of the following, separately or in combination:
(1) Physical abuse;
(2) Psychological abuse;
(3) Sexual abuse;
(4) Financial exploitation;
(5) Caregiver neglect; or
(6) Self-neglect;
each as further defined in this chapter. Abuse does not include, and a determination of abuse shall not be based solely on, physical, psychological, or financial conditions that result when a vulnerable adult seeks, or when a caregiver provides or permits to be provided, treatment with the express consent of the vulnerable adult or in accordance with the vulnerable adult’s religious or spiritual practices.
“Capacity” means the ability to understand and appreciate the nature and consequences of making decisions concerning one’s person or to communicate these decisions.
“Caregiver” means any person who has knowingly and willingly assumed, on a part-time or full-time basis, the care, supervision, or physical control of, or who has a legal or contractual duty to care for the health, safety, and welfare of a vulnerable adult.
“Caregiver neglect” means the failure of a caregiver to exercise that degree of care for a vulnerable adult that a reasonable person with the responsibility of a caregiver would exercise within the scope of the caregiver’s assumed, legal or contractual duties, including but not limited to the failure to:
(1) Assist with personal hygiene;
(2) Protect the vulnerable adult from abandonment;
(3) Provide, in a timely manner, necessary food, shelter, or clothing;
(4) Provide, in a timely manner, necessary health care, access to health care, prescribed medication, psychological care, physical care, or supervision;
(5) Protect the vulnerable adult from dangerous, harmful, or detrimental drugs, as defined in section 712-1240; provided that this paragraph shall not apply to drugs that are provided to the vulnerable adult pursuant to the direction or prescription of a practitioner, as defined in section 712-1240;
(6) Protect the vulnerable adult from health and safety hazards; or
(7) Protect the vulnerable adult from abuse by third parties.
“Court” means the family court.
“Department” means the department of human services and its authorized representatives.
“Director” means the director of human services.
“Emergency medical treatment” means any service necessary to maintain a person’s physical health and without which there is a reasonable belief that the person will suffer irreparable harm or death.
“Financial exploitation” means the wrongful taking, withholding, appropriation, or use of a vulnerable adult’s money, real property, or personal property, including but not limited to:
(1) The breach of a fiduciary duty, such as the misuse of a power of attorney or the misuse of guardianship privileges, resulting in the unauthorized appropriation, sale, or transfer of property;
(2) The unauthorized taking of personal assets;
(3) The misappropriation or misuse of moneys belonging to the vulnerable adult from a personal or joint account; or
(4) The failure to effectively use a vulnerable adult’s income and assets for the necessities required for the vulnerable adult’s support and maintenance, by a person with a duty to expend income and assets on behalf of the vulnerable adult for such purposes.
Financial exploitation may be accomplished through coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence.
“Party” means those persons, care organizations, or care facilities entitled to notice of proceedings under sections 346-237 and 346-238, including any state department or agency that is providing services and treatment to a vulnerable adult in accordance with a protective services plan.
“Physical abuse” means:
(1) The nonaccidental infliction of physical or bodily injury, pain, or impairment, including but not limited to hitting, slapping, causing burns or bruises, poisoning, or improper physical restraint; or
(2) Causing physical injuries that are not justifiably explained or where the history given for an injury is at variance with the degree or type of injury.
“Protective services plan” means a specific written plan, prepared by the department, that sets forth the specific services and treatment to be provided to a vulnerable adult.
“Psychological abuse” means the infliction of mental or emotional distress by use of threats, insults, harassment, humiliation, provocation, intimidation, or other means that profoundly confuse or frighten a vulnerable adult.
“Self-neglect” means:
(1) A vulnerable adult’s inability or failure, due to physical or mental impairment, or both, to perform tasks essential to caring for oneself, including but not limited to:
(A) Obtaining essential food, clothing, shelter, and medical care;
(B) Obtaining goods and services reasonably necessary to maintain minimum standards of physical health, mental health, emotional well-being, and general safety; or
(C) Management of one’s financial assets and obligations to accomplish the activities in subparagraphs (A) and (B); and
(2) The vulnerable adult appears to lack sufficient understanding or capacity to make or communicate responsible decisions and appears to be exposed to a situation or condition that poses an immediate risk of death or serious physical harm.
“Sexual abuse” means nonconsensual sexual contact or conduct caused by another person, including but not limited to:
(1) Sexual assault, molestation, sexual fondling, incest, or prostitution; or
(2) Pornographic photographing, filming, or depiction.
“Vulnerable adult” means a person eighteen years of age or older who, because of mental, developmental, or physical impairment, is unable to:
(1) Communicate or make responsible decisions to manage the person’s own care or resources;
(2) Carry out or arrange for essential activities of daily living; or
(3) Protect oneself from abuse, as defined in this part. [L 1989, c 381, pt of §1; am L 1990, c 144, §1 and c 234, §1; am L 2008, c 154, §4]
Dependent elder abuse; suits by the State; civil penalties.
(a) The attorney general may bring a civil action on behalf of the State, against any caregiver who commits abuse of a dependent elder, to prevent, restrain, or remedy such conduct. Any caregiver against whom a civil judgment is entered on a complaint alleging that the caregiver committed abuse against a dependent elder, shall be subject to a civil penalty of not less than $500 nor more than $1,000 for each day that the abuse occurred, and the costs of investigation.
(b) For the purposes of this section:
“Abuse” means actual or imminent physical injury, psychological abuse or neglect, sexual abuse, financial exploitation, negligent treatment, or maltreatment.
Abuse occurs where:
(1) Any dependent elder exhibits evidence of:
(A) Substantial or multiple skin bruising or any other internal bleeding;
(B) Any injury to skin causing substantial bleeding;
(C) Malnutrition;
(D) A burn or burns;
(E) Poisoning;
(F) The fracture of any bone;
(G) A subdural hematoma;
(H) Soft tissue swelling;
(I) Extreme physical pain; or
(J) Extreme mental distress which includes a consistent pattern of actions or verbalizations including threats, insults, or harassment, that humiliates, provokes, intimidates, confuses, and frightens the dependent elder;
and the injury is not justifiably explained, or where the history given is at variance with the degree or type of injury, or circumstances indicate that the injury is not the product of an accidental occurrence;
(2) Any dependent elder has been the victim of nonconsensual sexual contact or conduct by a caregiver, including but not limited to:
(A) Sexual assault, molestation, sexual fondling, incest, prostitution;
(B) Obscene or pornographic photographing, filming, or depiction; or
(C) Other similar forms of sexual exploitation;
(3) Any dependent elder is provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; however, this paragraph shall not apply when such drugs are provided to the dependent elder pursuant to the direction or prescription of a practitioner, as defined in section 712-1240;
(4) Any dependent elder is subject to neglect;
(5) Any dependent elder appears to lack sufficient understanding or capacity to make or communicate responsible decisions concerning the dependent elder’s person, and appears to be exposed to a situation or condition which poses an imminent risk of death or risk of serious physical harm; or
(6) There is financial and economic exploitation.
“Caregiver” means any person who has undertaken the care, custody, or physical control of, or who has a legal or contractual duty to care for the health, safety, and welfare of a dependent elder, including, but not limited to, owners, operators, employees, or staff of:
(1) Hospitals;
(2) Hospices;
(3) Adult residential care homes;
(4) Developmentally disabled domiciliary homes;
(5) Developmentally disabled adult foster homes;
(6) Intermediate care facilities;
(7) Skilled nursing facilities;
(8) Special treatment facilities;
(9) Assisted living facilities;
(10) Adult foster family homes;
(11) Adult day health care centers and adult day care programs;
(12) Independent living centers;
(13) Long-term care facilities;
(14) Community care facilities for the elderly;
(15) Respite care facilities;
(16) Foster homes; and
(17) Private residences used for commercial purposes to care for dependent elders.
“Dependent elder” means any person sixty-two years of age or older who, because of mental or physical impairment, is dependent upon another person, a care organization, or a care facility for personal health, safety, or welfare.
“Financial and economic exploitation” means the wrongful or negligent taking, withholding, misappropriation, or use of a dependent elder’s money, real property, or personal property. “Financial and economic exploitation” may include but is not limited to:
(1) Breaches of fiduciary relationships such as the misuse of a power of attorney or the abuse of guardianship privileges, resulting in the unauthorized appropriation, sale, or transfer of property;
(2) The unauthorized taking of personal assets;
(3) The misappropriation, misuse, or unauthorized transfer of moneys belonging to the dependent elder from a personal or joint account; or
(4) The intentional or negligent failure to effectively use a dependent elder’s income and assets for the necessities required for the elder’s support and maintenance.
The exploitations may involve coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence.
“Neglect” means the reckless disregard for the health, safety or welfare of a dependent elder, that results in injury, loss, or damage. “Neglect” includes, but is not limited to:
(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter;
(2) Failure to provide or arrange for necessary psychological, physical, or health care; except when such failure is in accordance with the dependent elder’s directive;
(3) Failure to protect a dependent elder from known health or safety hazards; and
(4) Failure to protect against known acts of abuse by third parties. [L 2003, c 196, §2]
Cross References
Some other actions or penalties for violations committed against elders, see §§412:3-114.5, 444-10.7, 454-4.5, 480-13, 480-13.5, 485A-603.5, 485A-604.5, and 487-14.
Law Journals and Reviews
Elder Law Hawaii. 13 HBJ, no. 13, at 85 (2009).
Elder Abuse and Laws to Protect Older Persons in Hawaii. 15 HBJ, no. 13, at 93 (2013).
Holding Hawai‘i Nursing Facilities Accountable for the Inadequate Pain Management of Elderly Residents. 27 UH L. Rev. 233.
Endangering the Welfare of an Incompetent Person.
(1) A person commits the offense of endangering the welfare of an incompetent person if he knowingly acts in a manner likely to be injurious to the physical or mental welfare of a person who is unable to care for himself because of physical or mental disease, disorder, or defect. (2) Endagering the welfare of an incompetent person is a misdemeanor. [L 1972, c 9, pt of §1]
