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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
HOUSE BILL 2741 By: Duel
AS INTRODUCED
An Act relating to mental health; enacting the
Oklahoma Elder Exploitation and Abuse Act; declari ng
purpose and intent; defining terms; pro viding that
civil actions may be filed in certain situations;
providing venue provisions; providing relief that may
be granted; providing who may bring a claim;
authorizing the court to grant access to certain
records; providing that claim survives death of
vulnerable adult; providing that certain privileged
relationships are not grounds for excluding evidence;
providing for codification; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 14-101 of Title 43A, unless
there is created a duplication in numbering, reads as follows:
This act shall be known and ma y be cited as the "Oklahoma Elder
Exploitation and Abuse Act".
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 14-102 of Title 43A, unless
there is created a duplication in numbering, reads as follows:
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A. The purpose of the Oklahoma Elder Exploitation and Abuse Act
is to promote the general welfare of all citizens by establishing a
civil action for incapacitated persons and vulnerable adults which
provides for the protection of their rights and affords them a right
of civil action against those who neglect, exploit, or abuse them.
B. The purpose of the Oklahoma Elder Exploitation and Abuse Act
is to allow incapacitated persons and vulnerable adults , through
their legal representatives , to pursue claims against persons who
neglect, exploit, or abuse the incapacitated person or vulnerable
adult if he or she lacks the capacity to pursue such claims on his
or her own behalf.
C. The Oklahoma Elder Exploitation and Abuse Act does not
preclude an individual’s mandatory responsibility to report to Adult
Protective Services or law enforcement if there is reasonable cause
to believe a vulnerable adult is being abused, neglected, o r
exploited.
D. It is the intent of the Oklahoma State Legislature:
1. That the district court shall exercise the authority
conferred by the Oklahoma Elder Exploitation and Abuse Act to
encourage the development of maximum self-reliance and independence
of incapacitated persons and vulnerable adult s and make appointive
and other orders only to the extent necessitated by the mental and
adaptive limitations of other conditions of the incapacitated or
partially incapacitated person warranting the action; and
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2. That in performing their duties and exercising their powers,
legal representatives bringing claims under t his act for
incapacitated persons and vulnerable adults shall:
a. Assure, to the extent reasonably possible, that the
rights of the persons for whom they are appointed are
protected, and
b. Encourage, to the extent r easonably possible,
incapacitated person s and vulnerable adults to
participate to the maximum extent of their abilit ies
in all decisions which affect them concerning the
claims afforded them under this act.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as S ection 14-103 of Title 43A, unless
there is created a d uplication in numbering, reads as follows:
A. When used in the Oklahoma Elder Exploitation and Abuse Act:
1. "Incapacitated person" means:
a. any person eighteen (18) years of age or older:
(1) who is impaired by reason of mental or physical
illness or disability, dementia or related
disease, developmental or intellectual disability
or other cause, and
(2) whose ability to receive and evaluat e information
effectively or to make and to communicate
responsible decisions is impaired to such an
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extent that such person lacks the capacity to
manage his or her financial resources or to meet
essential requirements for his or her mental or
physical health or safety without assistance from
others, or
b. a person for whom a guardian, limited guardian, or
conservator has been appointed pursuant to the
Oklahoma Guardianship and Conservatorship Act;
2. "Vulnerable adult" means an individual who is an
incapacitated person or who, because of physic al or mental
disability, including persons with Alzheimer's disease or othe r
dementias, incapacity, or other disability, is substantially
impaired in the ability to provide adequately for the care or
custody of himself or herself, or is unable to manage hi s or her
property and financial affairs effectively, or to meet essential
requirements for mental or physical health or safety, or to protect
himself or herself from abuse, neglect, or exploitation without
assistance from others;
3. "Caretaker" means a pe rson who has:
a. the responsibility for the care of a vulnera ble adult
or the financial management of the resources of a
vulnerable adult as a result of a family relationship,
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b. assumed the responsibility for the ca re of a
vulnerable adult voluntarily, by contract, or as a
result of the ties of friendship, or
c. been appointed a guardian, limited guardian, or
conservator pursuant to the Oklahoma Guardianship and
Conservatorship Act;
4. "Abuse" means causing or perm itting:
a. the infliction of physical pai n, injury, sexual abuse,
sexual exploitation, unreasonable re straint or
confinement, mental anguish or personal degradation,
or
b. the deprivation of nutrition, clothing, shelter,
health care, or other care or servi ces without which
serious physical or men tal injury is likely to occur
to a vulnerable adult by a care taker or other person
providing services to a vulnerable adult;
5. "Exploitation" or "exploit" means an unjust or improper use
of the resources of a vuln erable adult for the profit or advantage,
pecuniary or otherwise, of a person other than the vulnerabl e adult
through the use of undue influence, coercion, harassment, duress,
deception, false representation or false pretense;
6. "Financial neglect" mean s repeated instances by a caretaker,
or other person, who has assumed the role of financial management,
of failure to use the resources available to restore or maintain the
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health and physical well -being of a vulnerable adult, including, but
not limited to:
a. squandering or negligently mismanagin g the money,
property, or accounts of a vulnerable adult,
b. refusing to pay for necessities or utilities in a
timely manner, or
c. providing substandard care to a vulnerable adult
despite the availability of adequ ate financial
resources;
7. "Neglect" means:
a. the failure to provide protection for a vulnerable
adult who is unable to protect his or her own
interest,
b. the failure to provide a vulnerable adult with
adequate shelter, nutrition, health care, or clot hing,
or
c. negligent acts or omissions tha t result in harm or the
unreasonable risk of harm to a vulner able adult
through the action, inaction, or lack of supervision
by a caretaker providing direct services;
8. "Personal degradation" means a willful ac t by a caretaker
intended to shame, degrade, humiliate or otherwise harm the personal
dignity of a vulnerable adult, or where the caretaker knew or
reasonably should have known the act would cause shame, degradation,
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humiliation or harm to the personal dig nity of a reasonable person.
Personal degradation includes the taking, transmitting, or display
of an electronic image of a vulnerable adult by a caretaker, where
the caretaker's actions constitute a willful act intended to shame,
degrade, humiliate or ot herwise harm the personal dignity of the
dependent adult, or where the caretaker knew or reasonably shoul d
have known the act would cause shame, degradation, humiliation or
harm to the personal dignity of a reasonable person. Personal
degradation does not include:
a. the taking, transmission or dis play of an electronic
image of a vulnerable adult for the pur pose of
reporting vulnerable adult abuse to law enforcement,
the Department of Human Services or other regulatory
agency that oversees caretakers or en forces abuse or
neglect laws or rules,
b. the taking, transmission or display of an electronic
image of a vulnerable adult for the purpose of
treatment or diagnosis, or
c. the taking, transmission or display of an electronic
image of a vulnerable adult as part of an ongoing
investigation;
9. "Sexual abuse" means:
a. oral, anal, or vaginal penetration of a vu lnerable
adult by or through the union with the sexual organ of
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a caretaker or other person providing services to the
vulnerable adult, or the anal or vaginal penetration
of a vulnerable adult by a caretaker or other person
providing services to the vulner able adult with any
other object, or
b. for the purpose of sexual gratification, the touching,
feeling or observation of the body or private parts of
a vulnerable adult by a caretaker or other pe rson
providing services to the vulnerable adult, or
c. indecent exposure by a caretaker or other person
providing services to the vulnerable adult;
10. "Indecent exposure" means forcing or requiring a vulnerabl e
adult to:
a. look upon the body or private parts of another person
or upon sexual acts performed in the presence of the
vulnerable adult, or
b. touch or feel the body or private parts of another;
11. "Sexual exploitation" includes, but is not limited t o, a
caretaker's causing, allowing, permitting or encouraging a
vulnerable adult to engage in prostitution or in the lewd, obscene,
or pornographic photographing, filming or depiction of the
vulnerable adult as those acts are defined by state law; and
12. "Verbal abuse" means the use of words, sounds , or other
communication including, but not limited to, gestu res, actions or
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behaviors, by a caretaker or other person providing services to a
vulnerable adult that are likely to cause a reasonable person to
experience humiliation, intimidation, fear, sham e or degradation.
B. Nothing in this section shall be constr ued to mean a
vulnerable adult is abused or neglected for the sole reason the
vulnerable adult, in good faith, selects and depends upon spiritual
means alone through prayer, in accordance with th e practices of a
recognized religious method of healing, for the treatment or cure of
disease or remedial care, or a caretaker or other person
responsible, in good faith, is furnishing such vulnerable adult
spiritual means alone through prayer, in accordan ce with the tenets
and practices of a recognized church or re ligious denomination, for
the treatment or cure of disease or remedial care in accordance with
the practices of or express consent of the vulnerable adult.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 14-104 of Title 43A, unless
there is created a duplication in numbering, reads as follows:
A. A claim for elder neglect, exploitation, or abuse, as
prescribed in this section, m ay be brought in any district court
within the county in the State of Oklahoma in which the vulnerable
adult lives or maintains his or her residence or was living at the
time of the act or omission giving rise to the claim.
B. A person who commits neglect or financial neglect against a
vulnerable adult, proven by a preponderance of the evidence , shall
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be liable for actual damages in a n amount that compensates the
vulnerable adult for the loss he or she has incurred as a result
thereof and shall be liable for punitive damages as Oklahoma law
otherwise allows.
C. A person who commits exploitation or abuse of a vulnerable
adult, proven by a preponderance of the evidence, shall be liable
for damages three (3) times the actual damages incurred by the
vulnerable adult as a result thereof and shall be liable for
punitive damages as Oklahoma law otherwise allows.
D. The prevailing party in the claims prescribed in subsections
B and C of this section shall be entitled to recov er reasonable
attorney fees and costs.
E. The claims prescribed in this section shall follow and
otherwise be subject to the general laws governing civil claims
under Oklahoma law, including, without limitation, the provisions
found in Titles 12 and 23 of the Oklahoma Statutes.
F. The claims provided for by this section may be brought by
the vulnerable adult or on behalf of the vulnerable adult by his or
her guardian, limited guardian, conservator, agent under an
appropriate power of attorney, duly appoi nted representative of the
estate of the vulnerable adult, if deceased, or other legal
representative approved by the court.
G. In addition to any other documents or records to which the
vulnerable adult or his or her legal representative may be entitled
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in pursuit of the claim or claims prescribed in this section, the
court may authorize or direct t he vulnerable adult and his or her
legal representative access to and copies of financial, legal,
mental health, and physical health records of the vulnerable adult
in the possession of any physicia n, hospital, other health care
provider, firm, financial institution, lawyer, accountant,
counselor, broker, caregiver, corporation, other business entity, or
other facility or party. These records, upon order of the court,
shall be produced within ten (1 0) days, unless the court orders a
shorter time, and the records shall not be disclosed for any purpose
other than the purpose for which they have been obtained.
H. The claims provided for in this section survive the death of
the vulnerable adult.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 14-105 of Title 43A, unless
there is created a duplication in numbering, reads as follows:
The district court in which a claim authorized in this act is
filed may, upon proper application, issue a restraining order or
other injunctive relief to prohibit any further violation of this
act, regardless of the existence of any other remedy at law and in
addition thereto.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 14-106 of Title 43A, unless
there is created a duplication in numbering, reads as follows:
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Subject to a specific court order, the physician-patient
privilege nor spousal privilege shall be grounds for excluding
evidence regarding th e neglect, exploitation, or abuse of a
vulnerable adult or the cause thereof in any judicial proceeding
arising under this act.
SECTION 7. This act shall become effective November 1, 2023.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY - CIVIL, dated
02/23/2023 - DO PASS.