SENATE BILL 221
55th legislature - STATE OF NEW MEXICO - first session, 2021
INTRODUCED BY
Michael Padilla
AN ACT
RELATING TO CRIME; ENACTING THE FINANCIAL CRIMES AGAINST ELDERLY, DISABLED OR VULNERABLE ADULTS ACT; CREATING THE CRIMES OF FINANCIAL EXPLOITATION OF AN ELDERLY, DISABLED OR VULNERABLE ADULT AND UNLAWFUL USE OF A POWER OF ATTORNEY; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Financial Crimes Against Elderly, Disabled or Vulnerable Adults Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Financial Crimes Against Elderly, Disabled or Vulnerable Adults Act:
A. "disabled adult" means a person eighteen years of age or older who has been diagnosed with a physical or mental impairment;
B. "elderly adult" means a person sixty years of age or older;
C. "fiduciary relationship" means an agreement or arrangement that creates fiduciary duties owed from one person to another and includes the relationship between a principal and an attorney-in-fact pursuant to a power of attorney, a conservator and a protected person, a trustee and a beneficiary, a financial advisor or broker and an account owner or a representative payee and a beneficiary;
D. "neglect" means a failure or an omission of a caregiver to provide care, supervision and services, including food, clothing, medication and medical services and shelter, that a prudent person would deem necessary to maintain the health of an elderly, disabled or vulnerable adult and may be an isolated act or repeated conduct;
E. "undue influence" means an intentional use or exploitation by a person in a position of trust and confidence of that position, to obtain an unfair advantage over an elderly, disabled or vulnerable adult through an action or tactic, including emotional, psychological and legal manipulation; and
F. "vulnerable adult" means a person eighteen years of age or older who is unable to protect oneself from financial exploitation due to a physical or mental impairment that affects that person's judgment or behavior to the extent that the person lacks sufficient understanding or capacity to make, communicate or implement decisions regarding property, funds or resources.
SECTION 3. [NEW MATERIAL] FINANCIAL EXPLOITATION OF AN ELDERLY, DISABLED OR VULNERABLE ADULT--PENALTIES.--
A. Financial exploitation of an elderly, disabled
or vulnerable adult consists of any of the following actions by a person with a fiduciary relationship with an elderly, disabled or vulnerable adult if that person acts intentionally for the person's own profit or advantage or the profit or advantage of someone else:
(1) depriving the elderly, disabled or vulnerable adult of that adult's own real or personal property or other financial resources, resulting in neglect of that adult; or
(2) temporary or permanent deprivation, use or taking of real or personal property or other financial resources of the elderly, disabled or vulnerable adult.
B. In the absence of a fiduciary relationship, financial exploitation of an elderly, disabled or vulnerable adult consists of any of the following actions by a person who uses undue influence, deceit, trickery, harassment, duress, force, compulsion or coercion to:
(1) acquire possession or control of an interest in real or personal property or other financial resources of an elderly, disabled or vulnerable adult;
(2) induce an elderly, disabled or vulnerable adult against the adult's will to perform services for the profit or advantage of another; or
(3) establish a fiduciary relationship with an elderly, disabled or vulnerable adult that gives the person control of an interest in real or personal property or other financial resources of an elderly, disabled or vulnerable adult.
C. Evidence that a person took control, title, use or management of an elderly, disabled or vulnerable adult's property without adequate consideration shall be deemed prima facie evidence that the person intended to deprive the elderly, disabled or vulnerable adult of the property.
D. Whoever commits exploitation of an elderly, disabled or vulnerable adult is guilty of a:
(1) third degree felony for a first offense; and
(2) second degree felony for a second or subsequent offense.
E. Consent of an elderly, disabled or vulnerable adult is not a valid defense for a person who knew or had reason to know that the elderly, disabled or vulnerable adult lacked the ability to reasonably comprehend the financial consequences of an action.
F. Nothing in this section shall be construed to impose criminal liability on a person who:
(1) makes a good faith effort to assist an elderly, disabled or vulnerable adult in the management of funds, assets or property, which effort fails through no fault of that person;
(2) makes a good faith effort to provide for the care of an elderly, disabled or vulnerable adult, but through no fault of the person, has been unable to provide that care; or
(3) carries out a lawful request of an elderly, disabled or vulnerable adult who is competent to make decisions on that adult's own behalf.
SECTION 4. [NEW MATERIAL] UNLAWFUL USE OF A POWER OF ATTORNEY.--
A. Unlawful use of a power of attorney consists of use of a power of attorney obtained pursuant to the Uniform Power of Attorney Act by an agent with the intent to unlawfully deprive an elderly, disabled or vulnerable adult principal of an asset or property even if the power of attorney is later determined to be invalid.
B. Whoever commits unlawful use of a power of attorney is guilty of a:
(1) third degree felony for a first offense; and
(2) second degree felony for a second or subsequent offense.
C. Consent of an elderly, disabled or vulnerable adult is not a valid defense for a person who knew or had reason to know that the elderly, disabled or vulnerable adult lacked the ability to reasonably comprehend the financial consequences of an action.
D. Nothing in this section shall be construed to impose criminal liability on a person who makes a good faith effort to assist an elderly, disabled or vulnerable adult in the management of funds, assets or property, which effort fails through no fault of the person.
SECTION 5. [NEW MATERIAL] JURISDICTION.--
A. State law enforcement agencies, including the office of the attorney general, and local law enforcement agencies shall have concurrent jurisdiction to investigate a report of an allegation of financial exploitation of an elderly, disabled or vulnerable adult or of unlawful use of a power of attorney.
B. Nothing in this section shall be construed to alter or limit the duties and responsibilities of the attorney general, the department of health, the human services department and the aging and long-term services department to investigate reports of abuse, neglect, self-neglect or exploitation of an elderly, disabled or vulnerable adult.
SECTION 6. [NEW MATERIAL] ADDITIONAL PENALTIES.--In addition to penalties imposed pursuant to Sections 31-18-12 through 31-18-26 NMSA 1978, a person who is convicted of exploitation of an elderly, disabled or vulnerable adult or unlawful use of a power of attorney shall be sentenced to pay restitution to the victim for any loss sustained by the victim arising from that crime.
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