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HF 424

as introduced - 87th Legislature (2011 - 2012) Posted on 02/09/2011 08:59am

KEY: stricken = removed, old language.
underscored = added, new language.

Bill Text Versions

Engrossments
Introduction Posted on 02/09/2011

Current Version - as introduced

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A bill for an act
relating to civil actions; providing certain remedies for neglect, abuse, and other
actions against incapacitated and vulnerable adults; proposing coding for new
law in Minnesota Statutes, chapter 604.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [604.21] DUTY TO AN INCAPACITATED OR VULNERABLE
ADULT; FINANCIAL EXPLOITATION; CIVIL PENALTIES.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) The terms defined in this subdivision have the
meanings given for purposes of this section.
new text end

new text begin (b) "De facto conservator" means any person who takes possession of the estate of
an incapacitated or vulnerable adult, without right or lawful authority.
new text end

new text begin (c) "De facto guardian" means any person who takes possession of the person of an
incapacitated or vulnerable adult, without right or lawful authority.
new text end

new text begin (d) "Deception" includes but is not limited to:
new text end

new text begin (1) creating or confirming a false impression in an incapacitated or vulnerable adult's
mind;
new text end

new text begin (2) failing to correct a false impression that the person is responsible for creating or
confirming in an incapacitated or vulnerable adult's mind;
new text end

new text begin (3) making a promise to an incapacitated or vulnerable adult that the person does not
intend to perform or that the person knows will not or cannot be performed. A person's
failure to perform a promise is not by itself sufficient proof that the person did not intend
to perform the promise;
new text end

new text begin (4) misrepresenting or concealing a material fact that relates to the terms of a
contract or an agreement that the person enters into with the incapacitated or vulnerable
adult or that relates to the existing or preexisting condition of any of the property involved
in a contract or an agreement; or
new text end

new text begin (5) using any material misrepresentation, false pretense, or false promise to induce,
encourage, or solicit an incapacitated or vulnerable adult to enter into a contract or an
agreement.
new text end

new text begin (e) "Enterprise" means any corporation, partnership, association, labor union, or
other legal entity, or any group of persons associated in fact although not a legal entity,
which is involved with providing care to, or found to have involved the assets or property
of, an incapacitated or vulnerable adult.
new text end

new text begin (f) "Exploitation" means the illegal or improper use of an incapacitated or vulnerable
adult or resources for another's profit or advantage.
new text end

new text begin (g) "Incapacitated" has the meaning given in section 524.5-102, subdivision 6.
new text end

new text begin (h) "Informed consent" means any of the following:
new text end

new text begin (1) a written expression by the person that the person fully understands the potential
risks and benefits of the withdrawal of food, water, medication, medical services, shelter,
cooling, heating, or other services necessary to maintain minimum physical or mental
health and that the person specifically expresses that the services be withdrawn;
new text end

new text begin (2) consent to withdraw food, water, medication, medical services, shelter, cooling,
heating, or other services necessary to maintain minimum physical or mental health as
permitted by an order of a court of competent jurisdiction;
new text end

new text begin (3) a health care declaration made pursuant to chapter 145C; or
new text end

new text begin (4) consent by another person under a durable power of attorney relating to health
care services to withdraw food, water, medication, medical services, shelter, cooling,
heating, or other services necessary to maintain minimum physical or mental health.
new text end

new text begin (i) "Intimidation" includes threatening to deprive an incapacitated or vulnerable
adult of food, nutrition, shelter, necessary medication, medical treatment, insurance
coverage, or necessary finances.
new text end

new text begin (j) "Neglect" means a pattern of conduct without the person's informed consent
resulting in deprivation of food, water, medication, medical services, shelter, cooling,
heating, or other services necessary to maintain minimum physical or mental health.
new text end

new text begin (k) "Position of trust and confidence" includes but is not limited to:
new text end

new text begin (1) one who has assumed a duty to provide care to an incapacitated or vulnerable
adult;
new text end

new text begin (2) a joint tenant or a tenant in common with an incapacitated or vulnerable adult; or
new text end

new text begin (3) one who is in a fiduciary relationship with an incapacitated or vulnerable adult
including a de facto guardian or de facto conservator.
new text end

new text begin (l) "Vulnerable adult" means an individual who is 18 years of age or older who is
unable to protect himself or herself from abuse, neglect, or exploitation by others because
of a physical or mental impairment.
new text end

new text begin Subd. 2. new text end

new text begin Duties; liability. new text end

new text begin A person who causes or permits the life of an adult to
be endangered or that person's health to be injured or endangered by neglect is subject
to civil remedies under this section if the person has been employed to provide care, has
assumed a position to provide care acting as a de facto guardian or de facto conservator,
or has been appointed by a court as a guardian or conservator to provide care to an
incapacitated or vulnerable adult.
new text end

new text begin A person who is in a position of trust and confidence to an incapacitated or
vulnerable adult shall act for the benefit of that person to the same extent as a trustee
pursuant to section 501B.81. A person who is in a position of trust and confidence and
who by intimidation or deception knowingly takes control, title, use, or management of
an incapacitated or vulnerable adult's asset real or personal property with the intent to
permanently deprive that person of the asset or property is liable under this section.
new text end

new text begin Subd. 3. new text end

new text begin Exclusion. new text end

new text begin An adult is not abused, neglected, or in need of protective
services for the sole reason that the adult relies on treatment from a recognized religious
method of healing in lieu of medical treatment.
new text end

new text begin Subd. 4. new text end

new text begin Standing; assignment. new text end

new text begin An incapacitated or vulnerable adult whose life or
health is being or has been endangered or injured by neglect, abuse, or exploitation may
file an action in district court against any person or enterprise that has been employed to
provide care, that has assumed a legal duty to provide care, or that has been appointed
by a court to provide care to the incapacitated or vulnerable adult for having caused or
permitted endangerment or injury. An interested person or a person who is a spouse,
personal representative, child, adopted child, sibling, any other immediate family member,
a guardian as provided under section 524.5-313, or conservator as provided under section
524.5-417 may commence a civil action in district court or probate court to obtain
remedies on behalf of the incapacitated or vulnerable adult. The rights of the person
to commence an action may be assigned to another party with the showing of a sworn
assignment duly executed and filed with the court at the commencement of the action
or at the time of the assignment.
new text end

new text begin Subd. 5. new text end

new text begin Statute of limitations; survivability of action. new text end

new text begin An action under this
section may be commenced within three years after discovery of the cause of action, and
the cause of action or the right to bring a cause of action shall not be limited, affected,
or extinguished by the death of the incapacitated or vulnerable adult. Causes of action
time-barred by the limitation period applicable on the day before the effective date of this
section are revived and may be brought until one year after the effective date of this section.
new text end

new text begin Subd. 6. new text end

new text begin Remedies. new text end

new text begin (a) Prior to a determination of liability, relief may include,
but is not limited to, entering restraining orders or temporary injunctions or taking such
other actions, including the acceptance of satisfactory performance bonds, the creation
of receiverships and the appointment of qualified receivers, and the enforcement of
constructive trusts, as the court deems proper.
new text end

new text begin (b) After a determination of liability, relief may include, but is not limited to:
new text end

new text begin (1) an award in an amount up to three times the amount of monetary damages
suffered by an incapacitated or vulnerable adult;
new text end

new text begin (2) punitive damages;
new text end

new text begin (3) ordering any person to divest any direct or indirect interest the person has in
an enterprise;
new text end

new text begin (4) imposing reasonable restrictions, including permanent injunctions, on the future
activities or investments of any person, including prohibiting any person from engaging
in the same type of endeavor or conduct;
new text end

new text begin (5) ordering dissolution or reorganization of any enterprise; and
new text end

new text begin (6) awarding costs and reasonable attorney fees, including reasonable expert witness
fees or consultant fees, to persons injured by the conduct described in this section.
new text end

new text begin (c) A person who violates this section forfeits all benefits with respect to the estate
of the deceased incapacitated or vulnerable adult, including an intestate share, an elective
share, an omitted spouse's share, an omitted child's share, a homestead allowance, an
exempt property allowance, and a family allowance. If the incapacitated or vulnerable
adult died intestate, the decedent's intestate estate passes as if the person who committed
the violation disclaimed that person's intestate share.
new text end

new text begin (d) A civil action under this section does not preclude seeking relief under other
civil or criminal law.
new text end

new text begin Subd. 7. new text end

new text begin Effect of criminal conviction. new text end

new text begin A defendant convicted in any criminal
proceeding regarding incidents that are alleged to be a violation of this section is precluded
from subsequently denying the essential allegations of the criminal offense of which the
defendant was convicted in any proceeding under this section.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2011.
new text end