Chapter 32

9 GCA CRIMES AND CORRECTIONS CH. 32 FINANCIAL EXPLOITATION OF THE ELDERLY AND INDIVIDUALS WITH DISABILITIES 1 CHAPTER 32 FINANCIAL EXPLOITATION OF THE ELDERLY AND INDIVIDUALS WITH DISABILITIES SOURCE: Entire chapter added by P.L. 35-050:2 (Nov. 25, 201 9). § 32.10. General Definitions. § 32.20. Financial Exploitation of an Elderly Perso n or Individual with a Disability: Defined. § 32.30. Permissive Presumption of Exploitation. § 32.40. Financial Exploitation of an Elderly Perso n or Individual with a Disability: Punished. § 32.50. Evidentiary Hearing Required for Custody o f Property Determination. § 32.10. General Definitions. As used in this Chapter: (a) Business relationship means a relationship between two (2) or more individuals or entities where there exists an oral or written contract or agreement for goods or services. (b) Caregiver means a person who has been entrusted with and has assumed responsibility for the care or the property of an elderly person or individual with a disability. (c) Individual with a disability means a person eighteen (18) years of age or older who suffers from a condi tion of physical or mental incapacitation due to a developm ental disability,

disability. (c) Individual with a disability means a person eighteen (18) years of age or older who suffers from a condi tion of physical or mental incapacitation due to a developm ental disability, organic brain damage, or mental illness , or who has one (1) or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living. (d) Elderly person means a person fifty-five (55) years of age or older who is suffering from the infirmiti es of aging as manifested by advanced age or organic brai n damage, or other physical, mental, or emotional dysfunction, to the extent that the ability of the person to provide adequately for the person’s own care or pro tection is impaired. COL1/24/20209 GCA CRIMES AND CORRECTIONS CH. 32 FINANCIAL EXPLOITATION OF THE ELDERLY AND INDIVIDUALS WITH DISABILITIES 2 (e) Endeavor means to attempt or try. (f) Lacks capacity to consent means an impairment b y reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chr onic use of drugs, chronic intoxication, short-term memory loss , or other cause, that causes an elderly person or indiv idual with a

lity, organic brain disorder, physical illness or disability, chr onic use of drugs, chronic intoxication, short-term memory loss , or other cause, that causes an elderly person or indiv idual with a disability to lack sufficient understanding or ca pacity to make or communicate reasonable decisions concerning the elderly person’s or individual with a disability’s person or property. (g) Obtains or uses means any manner of: (1) taking or exercising control over property; or (2) making any use, disposition, or transfer of property. (h) Position of trust and confidence with respect t o an elderly person or an individual with a disability m eans the position of a person who: (1) is a parent, spouse, adult child, or other relative by blood or marriage of the elderly person or individual with a disability; (2) is a joint tenant or tenant in common with the elderly person or individual with a disability; (3) has a legal or fiduciary relationship with the elderly person or individual with a disability, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservat or; (4) is a caregiver of the elderly person or individual with a disability; or (5)

isability, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservat or; (4) is a caregiver of the elderly person or individual with a disability; or (5) is any other person who has been entrusted with and has assumed responsibility for the use or management of the elderly person’s or individual wi th a disability’s funds, assets, or property. (i) Property means anything of value and includes: COL1/24/20209 GCA CRIMES AND CORRECTIONS CH. 32 FINANCIAL EXPLOITATION OF THE ELDERLY AND INDIVIDUALS WITH DISABILITIES 3 (1) real property, including things growing on, affixed to, and found in land; (2) tangible or intangible personal property, including money, rights, privileges, interests, and claims; and (3) services. (j) Services means anything of value resulting from a person’s physical or mental labor or skill, or from the use, possession, or presence of property, and includes: (1) repairs or improvements to property; (2) professional services; (3) private, public, or governmental communication, transportation, power, water, or sanitation services; (4) lodging accommodations; and (5) admissions to places of exhibition or entertainment.

ces; (3) private, public, or governmental communication, transportation, power, water, or sanitation services; (4) lodging accommodations; and (5) admissions to places of exhibition or entertainment. § 32.20. Financial Exploitation of an Elderly Perso n or Individual with a Disability: Defined. A person is guilty of financial exploitation of an elderly person or individual with a disability if he or she : (a) knowingly obtains or uses, or endeavors to obta in or use, an elderly person’s or individual with a di sability’s funds, assets, or property with the intent to tempo rarily or permanently deprive the elderly person or individua l with a disability of the use, benefit, or possession of th e funds, assets, or property, or to benefit someone other th an the elderly person or individual with a disability, by a person who: (1) stands in a position of trust and confidence with the elderly person or individual with a disabi lity; or COL1/24/20209 GCA CRIMES AND CORRECTIONS CH. 32 FINANCIAL EXPLOITATION OF THE ELDERLY AND INDIVIDUALS WITH DISABILITIES 4 (2) has a business relationship with the elderly person or individual with a disability; (b) obtains or uses, endeavors to obtain or

AL EXPLOITATION OF THE ELDERLY AND INDIVIDUALS WITH DISABILITIES 4 (2) has a business relationship with the elderly person or individual with a disability; (b) obtains or uses, endeavors to obtain or use, or conspires with another to obtain or use an elderly person’s or individual with a disability’s funds, assets, or property with the intent to temporarily or permanently depri ve the elderly person or individual with a disability of t he use, benefit, or possession of the funds, assets, or pro perty, or to benefit someone other than the elderly person or in dividual with a disability, by a person who knows or reasona bly should know that the elderly person or individual w ith a disability lacks the capacity to consent; (c) is a guardian, a trustee who is an individual, or an agent under a power of attorney who breaches a fidu ciary duty to the elderly person or individual with a dis ability which results in an unauthorized appropriation, sal e, or transfer of property. An unauthorized appropriation , sale, or transfer of property, under this Subsection occurs when the elderly person or individual with a disability does not receive the reasonably equivalent financial value i n

ized appropriation , sale, or transfer of property, under this Subsection occurs when the elderly person or individual with a disability does not receive the reasonably equivalent financial value i n goods or services, or when the fiduciary violates any of these duties: (1) for appointed agents: (A) committing fraud in obtaining their appointments; (B) abusing their powers; (C) embezzling or intentionally mismanaging the assets of the principal or beneficiary; or (D) acting contrary to the principal’s sole benefit or best interest; (2) for guardians and trustees: (A) committing fraud in obtaining their appointments; (B) abusing their powers; or COL1/24/20209 GCA CRIMES AND CORRECTIONS CH. 32 FINANCIAL EXPLOITATION OF THE ELDERLY AND INDIVIDUALS WITH DISABILITIES 5 (C) embezzling or intentionally mismanaging the assets of the principal or beneficiary; (d) misappropriates, misuses, or transfers without authorization, money belonging to an elderly person or individual with a disability from an account in whi ch the elderly person or individual with a disability plac ed the funds, owned the funds, and was the sole contributo r or payee of the funds before the misappropriation, mis

y from an account in whi ch the elderly person or individual with a disability plac ed the funds, owned the funds, and was the sole contributo r or payee of the funds before the misappropriation, mis use, or unauthorized transfer occurred. This Subsection onl y applies to the following types of accounts: (1) personal accounts; (2) joint accounts created with the intent that onl y the elderly person or individual with a disability enjoys all rights, interests, and claims to moneys deposit ed into such account; or (3) convenience accounts; (e) is a caregiver or a person who stands in a posi tion of trust and confidence with the elderly person or individual with a disability who intentionally or negligently fails to effectively use an elderly person’s or individual w ith a disability’s income and assets for the necessities required for that person’s support and maintenance. § 32.30. Permissive Presumption of Exploitation. Any inter vivos transfer of money or property value d in excess of Ten Thousand Dollars ($10,000) at the tim e of the transfer, whether in a single transaction or multip le transactions, by a person fifty-five (55) years of age or older t o a nonrelative whom the

of Ten Thousand Dollars ($10,000) at the tim e of the transfer, whether in a single transaction or multip le transactions, by a person fifty-five (55) years of age or older t o a nonrelative whom the transferor knew for fewer than two (2) yea rs before the first (1st) transfer and for which the transfer or did not receive the reasonably equivalent financial value in goods or services creates a permissive presumption that the transfer was the result of exploitation. (a) This Section applies regardless of whether the transfer or transfers are denoted by the parties as a gift or loan, except that it does not apply to a valid loan evidenced COL1/24/20209 GCA CRIMES AND CORRECTIONS CH. 32 FINANCIAL EXPLOITATION OF THE ELDERLY AND INDIVIDUALS WITH DISABILITIES 6 in writing that includes definite repayment dates. However, if repayment of any such loan is in default, in who le or in part, for more than sixty-five (65) days, the presu mption of this Section applies. (b) This Section does not apply to: (1) persons who are in the business of making loans; and (2) bona fide charitable donations to nonprofit organizations that qualify for tax exempt status.

applies. (b) This Section does not apply to: (1) persons who are in the business of making loans; and (2) bona fide charitable donations to nonprofit organizations that qualify for tax exempt status. (c) In a criminal case to which this Section applie s, if the trial is by jury, jurors shall be instructed that they may, but are not required to, draw an inference of explo itation upon proof beyond a reasonable doubt of the facts l isted in this Section. The presumption of this Section impos es no burden of proof on the defendant. § 32.40. Financial Exploitation of an Elderly Perso n or Individuals with a Disability: Punished. (a) If the funds, assets, or property involved in t he exploitation of an elderly person or individual wit h a disability is valued at Fifty Thousand Dollars ($50,000) or more, the offender commits a felony of the first (1st) degree. (b) If the funds, assets, or property involved in t he exploitation of an elderly person or individual wit h a disability is valued at Ten Thousand Dollars ($10,000) or more, b ut less than Fifty Thousand Dollars ($50,000), the offender comm its a felony of the second (2nd) degree.

erson or individual wit h a disability is valued at Ten Thousand Dollars ($10,000) or more, b ut less than Fifty Thousand Dollars ($50,000), the offender comm its a felony of the second (2nd) degree. (c) If the funds, assets, or property involved in t he exploitation of an elderly person or individual wit h a disability is valued at less than Ten Thousand Dollars ($10,000), the offender commits a felony of the third (3rd) degree. (d) It does not constitute a defense to a prosecuti on for any violation of this Chapter that the accused did not know the age of the victim. COL1/24/20209 GCA CRIMES AND CORRECTIONS CH. 32 FINANCIAL EXPLOITATION OF THE ELDERLY AND INDIVIDUALS WITH DISABILITIES 7 § 32.50. Evidentiary Hearing Required for Custody o f Property Determination. (a) If a person is charged with financial exploitat ion of an elderly person or individual with a disability that involves the taking of or loss of property valued at more than F ive Thousand Dollars ($5,000) and property belonging to a victim is seized from the defendant pursuant to a search warrant, th e court shall hold an evidentiary hearing and determine, by a pre ponderance of the evidence, whether the defendant

belonging to a victim is seized from the defendant pursuant to a search warrant, th e court shall hold an evidentiary hearing and determine, by a pre ponderance of the evidence, whether the defendant unlawfully o btained the victim’s property. (b) If the court finds that the property was unlawf ully obtained, the court may order it returned to the vi ctim for restitution purposes before trial on the charge. (c) This determination is inadmissible in evidence at trial on the charge and does not give rise to any inference that the defendant has committed an offense under this Chapt er. 2019 NOTE: Subsection designations added pursuant to authority granted by 1 GCA § 1606. ---------- COL1/24/2020