22-46-1
Definition of terms.
22-46-1.1
Neglect--Exclusions from definition.
22-46-2
Abuse or neglect of elder or adult with a disability--Felony or misdemeanor.
22-46-3
Theft by exploitation--Penalty.
22-46-4
Repealed.
22-46-5
Investigation of report of abuse, neglect or exploitation.
22-46-6
Transferred.
22-46-7
Report of abuse, neglect, or exploitation.
22-46-8
Immunity from liability for reporting abuse, neglect, or exploitation.
22-46-9
Mandatory reporting of abuse, neglect, or exploitation--Violation as misdemeanor.
22-46-10
Mandatory reporting of abuse or neglect by staff and by person in charge of
residential facility or entity providing services to elderly or disabled adult--Violation
as misdemeanor.
22-46-11
Voluntary reporting of abuse, neglect, or exploitation.
22-46-12
Information provided by report of abuse, neglect, or exploitation.
22-46-13
Action against perpetrator for exploitation--Compensatory and punitive damages--Attorney's fees.
22-46-14
Additional penalties against perpetrator for exploitation.
22-46-15
Third party property interest acquired for value and in good faith unaffected by
severance of perpetrator's property interest.
22-46-16
Effect of revocation of provision of instrument.
22-46-17
Additional remedies for violation.
22-46-18
Remedies cumulative with other legal and administrative remedies.
22-46-1. Definition of terms.
Terms used in this chapter mean:
(1) "Adult with a disability," a person eighteen years of age or older who has a condition of intellectual disability, infirmities of aging as manifested by organic brain damage, advanced age, or other physical dysfunctioning to the extent that the person is unable to protect himself or herself or provide for his or her own care;
(2) "Caretaker," a person or entity who is entrusted with the property of an elder or adult with a disability, or who is responsible for the health or welfare of an elder or adult with a disability, and who assumes the position of trust or responsibility voluntarily, by contract, by receipt of payment, or by order of the court;
(3) "Elder," a person sixty-five years of age or older;
(4) "Emotional and psychological abuse," a caretaker's willful, malicious, and repeated infliction of:
(a) A sexual act or the simulation of a sexual act directed at and without the consent of the elder or adult with a disability that involves nudity or is obscene;
(b) Unreasonable confinement;
(c) Harm or damage or destruction of the property of an elder or adult with a disability, including harm to or destruction of pets; or
(d) Ridiculing or demeaning conduct, derogatory remarks, verbal harassment, or threats to inflict physical or emotional and psychological abuse, directed at an elder or adult with a disability;
(5) "Exploitation," the wrongful taking or exercising of control over property of an elder or adult with a disability with intent to defraud the elder or adult with a disability;
(6) "Neglect," harm to the health or welfare of an elder or an adult with a disability, without reasonable medical justification, caused by a caretaker, within the means available for the elder or adult with a disability, including the failure to provide adequate food, clothing, shelter, or medical care; and
(7) "Physical abuse," physical harm, bodily injury, attempt to cause physical harm or injury, or fear of imminent physical harm or bodily injury.
Source: SL 1986, ch 186, § 1; SL 1990, ch 171, § 1; SL 2005, ch 120, § 339; SL 2007, ch 147, § 1; SL 2013, ch 125, § 4; SL 2016, ch 120, § 1.
22-46-1.1. Neglect--Exclusions from definition.
For the purposes of this chapter, the term, neglect, does not include a decision that is made to not seek medical care for an elder or disabled adult upon the expressed desire of the elder or disabled adult; a decision to not seek medical care for an elder or disabled adult based upon a previously executed declaration, do-not-resuscitate order, or a power of attorney for health care; a decision to not seek medical care for an elder or disabled adult if otherwise authorized by law; or the failure to provide goods and services outside the means available for the elder or disabled adult.
Source: SL 2007, ch 147, § 2.
22-46-2. Abuse or neglect of elder or adult with a disability--Felony or misdemeanor.
Any person who physically abuses or neglects an elder or adult with a disability in a manner which does not constitute aggravated assault is guilty of a Class 6 felony.
Any person who emotionally or psychologically abuses an elder or adult with a disability is guilty of a Class 1 misdemeanor.
Source: SL 1986, ch 186, § 2; SL 1990, ch 171, § 2; SL 2005, ch 120, § 341; SL 2007, ch 147, § 3; SL 2016, ch 120, § 2.
22-46-3. Theft by exploitation--Penalty.
Any person who, having assumed the duty voluntarily, by written contract, by receipt of payment for care, or by order of a court to provide for the support of an elder or an adult with a disability, and having been entrusted with the property of that elder or adult with a disability, with intent to defraud, appropriates such property to a use or purpose not in the due and lawful execution of that person's trust, is guilty of theft by exploitation. Theft by exploitation is punishable as theft pursuant to chapter 22-30A.
Source: SL 1986, ch 186, § 3; SL 1989, ch 30, § 53; SL 2005, ch 120, § 342; SL 2007, ch 147, § 4; SL 2016, ch 120, § 21.
22-46-5. Investigation of report of abuse, neglect or exploitation.
The person or agency that receives, pursuant to § 22-46-7, a report of abuse, neglect, or exploitation of an elder or adult with a disability shall also forward the report to the Office of the Attorney General, if the person or agency determines that reasonable suspicion exists to support further investigation. In investigating a violation of this chapter, law enforcement agencies shall cooperate with and assist the Department of Human Services. Upon receiving a report made pursuant to this chapter, the law enforcement agency shall evaluate whether a criminal investigation is appropriate.
Source: SL 1990, ch 171, § 4; SL 2016, ch 120, § 24; SL 2017, ch 230 (Ex. Ord. 17-1), § 22, eff. Apr. 13, 2017.
22-46-7. Report of abuse, neglect, or exploitation.
A report of abuse, neglect, or exploitation under this chapter may be made orally or in writing to the state's attorney of the county in which the elder or disabled adult resides or is present, to the Department of Human Services, or to the law enforcement officer. The state's attorney or law enforcement officer, upon receiving a report, shall immediately notify the Department of Human Services.
Source: SL 2007, ch 147, § 5; SL 2017, ch 230 (Ex. Ord. 17-1), § 23, eff. Apr. 13, 2017.
22-46-8. Immunity from liability for reporting abuse, neglect, or exploitation.
Any person who, in good faith, makes a report of abuse, neglect, or exploitation of any elder or disabled adult, is immune from any civil or criminal liability that might otherwise be incurred or imposed, and has the same immunity with respect to participation in any judicial proceeding resulting from the report. This immunity extends in a like manner to any public official involved in the investigation of abuse, neglect, or exploitation of any elder or disabled adult, or to any person or institution who in good faith cooperates with any public official in an investigation. The provisions of this section do not extend to any person alleged to have committed any act of abuse or neglect of any elder or disabled adult or to any person who has aided and abetted any such act.
Source: SL 2007, ch 147, § 7.
22-46-9. Mandatory reporting of abuse, neglect, or exploitation--Violation as misdemeanor.
Any:
(1) Physician, dentist, doctor of osteopathy, chiropractor, optometrist, podiatrist, religious healing practitioner, hospital intern or resident, nurse, paramedic, emergency medical technician, social worker, or any health care professional;
(2) Psychologist, licensed mental health professional, or counselor engaged in professional counseling; or
(3) State, county, or municipal criminal justice employee or law enforcement officer;
who knows, or has reasonable cause to suspect, that an elder or adult with a disability has been or is being abused, neglected, or exploited, shall, within twenty-four hours, report such knowledge or suspicion orally or in writing to the state's attorney of the county in which the elder or adult with a disability resides or is present, to the Department of Human Services, or to a law enforcement officer. Any person who knowingly fails to make the required report is guilty of a Class 1 misdemeanor.
A person described in this section is not required to report the abuse, neglect, or exploitation of an elder or adult with a disability if the person knows that another person has already reported to a proper agency the same abuse, neglect, or exploitation that would have been the basis of the person's own report.
Source: SL 2011, ch 119, § 1; SL 2016, ch 120, § 22; SL 2016, ch 128, § 1; SL 2017, ch 230 (Ex. Ord. 17-1), § 24, eff. Apr. 13, 2017.
22-46-10. Mandatory reporting of abuse or neglect by staff and by person in charge of residential facility or entity providing services to elderly or disabled adult--Violation as misdemeanor.
Any staff member of a nursing facility, assisted living facility, adult day care center, or community support provider, or any residential care giver, individual providing homemaker services, victim advocate, or hospital personnel engaged in the admission, examination, care, or treatment of elderly or disabled adults who knows, or has reasonable cause to suspect, that an elderly or disabled adult has been or is being abused or neglected, shall, within twenty-four hours, notify the person in charge of the institution where the elderly or disabled adult resides or is present, or the person in charge of the entity providing the service to the elderly or disabled adult, of the suspected abuse or neglect. The person in charge shall report the information in accordance with the provisions of § 22-46-9. Any person who knowingly fails to make the required report is guilty of a Class 1 misdemeanor.
Source: SL 2011, ch 119, § 2.
22-46-11. Voluntary reporting of abuse, neglect, or exploitation.
Any person who knows or has reason to suspect that an elder or adult with a disability has been abused, neglected, or exploited as defined in §§ 22-46-1 to 22-46-3, inclusive, may report that information, regardless of whether that person is one of the mandatory reporters listed in §§ 22-46-9 and 22-46-10.
Source: SL 2011, ch 119, § 3; SL 2016, ch 120, § 25.
22-46-12. Information provided by report of abuse, neglect, or exploitation.
The person making a report as required by § 22-46-9 and as permitted by § 22-46-11 shall provide, or a proper agency receiving the report shall acquire, to the extent possible, the following information:
(1) The name, age, physical address, and contact information of the elder or adult with a disability;
(2) The name, age, physical address, and contact information of the person making the report;
(3) The name, age, physical address, and contact information of the caretaker of the elder or adult with a disability;
(4) The name of the alleged perpetrator;
(5) The nature and extent of the elder or adult with a disability's injury, whether physical or financial, if any;
(6) The nature and extent of the condition that required the report to be made; and
(7) Any other pertinent information.
Source: SL 2016, ch 120, § 23.
22-46-13. Action against perpetrator for exploitation--Compensatory and punitive damages--Attorney's fees.
A court may find that an elder or adult with a disability has been exploited as defined in § 22-46-1 or 22-46-3. If a court finds exploitation occurred, the elder or adult with a disability has a cause of action against the perpetrator and may recover actual and punitive damages for the exploitation. The action may be brought by the elder or adult with a disability, or that person's guardian, conservator, by a person or organization acting on behalf of the elder or adult with a disability with the consent of that person or that person's guardian or conservator, or by the personal representative of the estate of a deceased elder or adult with a disability without regard to whether the cause of death resulted from the exploitation. The action may be brought in any court of competent jurisdiction to enforce the action. A party who prevails in the action may recover reasonable attorney's fees, costs of the action, compensatory damages, and punitive damages.
Source: SL 2016, ch 120, § 28.
22-46-14. Additional penalties against perpetrator for exploitation.
In addition to the damages prescribed in § 22-46-13, the court may impose the following penalties:
(1) Revoke, in whole or in part, any revocable:
(a) Provision by the elder or adult with a disability that is contained in a governing instrument that confers a general or nongeneral power of appointment on the perpetrator; and
(b) Nomination or appointment by the elder or adult with a disability that is contained in a governing instrument that nominates or appoints the perpetrator to serve in any fiduciary or representative capacity, including serving as a personal representative, executor, guardian, conservator, trustee, attorney in fact, or agent;
(2) Sever the interests of the elder or adult with a disability and the perpetrator in any property that is held by them at the time of the violation as joint tenants with the right of survivorship and transform the interests of the elder or adult with a disability and the perpetrator into tenancies in common. To the extent that the perpetrator did not provide adequate consideration for the jointly held interest, the court may cause the person's interest in the subject property to be forfeited in whole or in part.
Source: SL 2016, ch 120, § 29.
22-46-15. Third party property interest acquired for value and in good faith unaffected by severance of perpetrator's property interest.
A severance pursuant to subdivision 22-46-14(2) does not affect any third party interest in property that was acquired for value and in good faith reliance on apparent title by survivorship in the perpetrator unless a writing declaring the severance has been noted, registered, filed, or recorded in records that are appropriate to the kind and location of the property and that are relied on as evidence of ownership in the ordinary course of transactions involving that property.
Source: SL 2016, ch 120, § 30.
22-46-16. Effect of revocation of provision of instrument.
If the court imposes a revocation pursuant to subdivision 22-46-14(1), provisions of the governing instrument shall be given effect as if the perpetrator disclaimed all provisions revoked by the court or, in the case of a revocation of a nomination in a fiduciary or representative capacity, the perpetrator predeceased the decedent.
Source: SL 2016, ch 120, § 31.
22-46-17. Additional remedies for violation.
The court may authorize remedies provided in § 21-65-12 for violations under § 22-46-3 or 22-46-13.
Source: SL 2016, ch 120, § 32.
