HOUSE BILL 146
53rd legislature - STATE OF NEW MEXICO - first session, 2017
INTRODUCED BY
Yvette Herrell and Deborah A. Armstrong
AN ACT
RELATING TO PROTECTION OF VULNERABLE ADULTS; ENACTING THE PROTECTION AGAINST FINANCIAL EXPLOITATION OF VULNERABLE ADULTS ACT; PROVIDING FOR CRIMINAL PENALTIES; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Criminal Code is enacted to read:
"[NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Protection Against Financial Exploitation of Vulnerable Adults Act"."
SECTION 2. A new section of the Criminal Code is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Protection Against Financial Exploitation of Vulnerable Adults Act:
A. "activity of daily living" means eating, dressing, oral hygiene, bathing, grooming, mobility, toileting, taking medicine or managing finances and budgeting;
B. "great physical harm" means physical harm of a type that causes physical loss of a bodily member or organ or functional loss of a bodily member or organ for a prolonged period of time;
C. "great psychological harm" means psychological harm that causes mental or emotional incapacitation for a prolonged period of time or that causes extreme behavioral change or severe physical symptoms that require psychological or psychiatric care;
D. "neglect" means the lack of care and services necessary to maintain a vulnerable adult's physical and mental health and safety, including the provision of food, nutrition, clothing, shelter, supervision, medicine and medical services;
E. "physical harm" means an injury to the body that causes substantial pain or incapacitation; and
F. "vulnerable adult" means a person over the age of eighteen who, due to aging, developmental disability, intellectual disability, brain injury or disease, mental illness or other physical condition:
(1) lacks the ability to care for or protect one's self; or
(2) requires assistance with at least one activity of daily living."
SECTION 3. A new section of the Criminal Code is enacted to read:
"[NEW MATERIAL] FINANCIAL EXPLOITATION OF A VULNERABLE ADULT--PENALTIES.--
A. Financial exploitation of a vulnerable adult consists of:
(1) obtaining or using the funds, assets or property of a vulnerable adult with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit or possession of the funds, assets or property, or to benefit another person;
(2) misappropriating, misusing or transferring without authorization money belonging to a vulnerable adult from an account in which the vulnerable adult placed the funds, owned the funds or was the sole contributor or beneficiary of the funds. This paragraph applies to personal accounts and joint accounts established for the sole benefit and use of the vulnerable adult;
(3) appropriating, selling or transferring property belonging to a vulnerable adult if the vulnerable adult does not receive a substantially equivalent financial value in funds, goods or services;
(4) making an inter vivos transfer, whether in a single transaction or multiple transactions, of money or property belonging to a vulnerable adult to a person who is not related to the vulnerable adult if the vulnerable adult does not receive a substantially equivalent financial value in funds, goods or services. A transfer of money or property valued in excess of two hundred dollars ($200) to a non-relative whom the vulnerable adult has known for less than two years and for which the vulnerable adult does not receive the substantially equivalent financial value in funds, goods or services creates the presumption that the transfer was the result of financial exploitation; or
(5) intentionally failing to use the income and assets of a vulnerable adult for necessities required for the vulnerable adult's support and maintenance, resulting in neglect.
B. Paragraph (4) of Subsection A of this section does not apply to bona fide charitable contributions to nonprofit organizations that qualify for tax-exempt status under the federal Internal Revenue Code of 1986.
C. A person who commits financial exploitation of a vulnerable adult as provided in Paragraphs (1) through (4) of Subsection A of this section is guilty of a:
(1) petty misdemeanor if the value of money or property is two hundred fifty dollars ($250) or less and, upon conviction, shall be sentenced pursuant to the provisions of Subsection B of Section 31-19-1 NMSA 1978;
(2) misdemeanor if the value of money or property is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) and, upon conviction, shall be sentenced pursuant to the provisions of Subsection B of Section 31-19-1 NMSA 1978;
(3) fourth degree felony if the value of money or property is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) and, upon conviction, shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(4) third degree felony if the value of money or property is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) and, upon conviction, shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(5) second degree felony if the value of money or property is over twenty thousand dollars ($20,000) and, upon conviction, shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
D. A person who commits financial exploitation of a vulnerable adult as provided in Paragraph (5) of Subsection A of this section is guilty of a:
(1) petty misdemeanor if the neglect results in no harm to the vulnerable adult and, upon conviction, shall be sentenced pursuant to the provisions of Subsection B of Section 31-19-1 NMSA 1978;
(2) fourth degree felony if the neglect results in physical harm or great psychological harm to the vulnerable adult and, upon conviction, shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(3) third degree felony if the neglect results in great physical harm to the vulnerable adult and, upon conviction, shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(4) second degree felony if the neglect results in the death of the vulnerable adult and, upon conviction, shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."
SECTION 4. APPLICABILITY.--The provisions of this act shall not be construed to preclude the applicability of any other provision of the civil or criminal law of this state or a local government of this state that currently applies, or may in the future apply, to any transaction that violates the cited provisions of this act.
SECTION 5. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
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