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SENATE FLOOR VERSION
April 9, 2024
AS AMENDED
ENGROSSED HOUSE
BILL NO. 2741 By: Duel, Roe, and Menz of the
House
and
Weaver of the Senate
[ mental health - Neil's Law - Oklahoma Elder
Exploitation and Abuse Act - civil actions - venue
provisions - access to records - privileged
relationships – noncodification – codification -
effective date ]
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law not to be
codified in the Oklahom a Statutes reads as follows:
This act shall be known and may be cited as "Neil's Law".
SECTION 2. 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 duplica tion in numbering, reads as follows:
This act shall be known and may be cited as the "Oklahoma Elder
Exploitation and Abuse Act ".
SECTION 3. 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 perso ns 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 responsibil ity to report to Adult
Protective Services or law enforcement if there is reasonable cause
to believe a vulnerable adult is being abused, neglected, or
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 adults and make appointive
and other orders only to the extent nec essitated by the mental and
adaptive limitations of other condition s 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 this act for
incapacitated persons and vulnerable adults shall:
a. assure, to the extent reasonably possible, that the
rights of the persons for whom t hey are appointed are
protected, and
b. encourage, to the extent reasonably possible,
incapacitated persons and vulnerable adults to
participate to the maximum extent of their abilities
in all decisions which affect them concerning the
claims afforded them under this act.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 14 -103 of Title 43A, unless
there is created a duplication in numbering, reads as follows:
A. When used in the Oklahoma Eld er 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 disabi lity
or other cause, and
(2) whose ability to receive and evaluate 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 fro m
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 physical or mental
disability, including persons with Alzheimer 's disease or other
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 manag e his 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 person who has:
a. the responsibility for the care of a vulnerable adult
or the financial management of the resources of a
vulnerable adult as a result o f a family relationship,
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b. assumed the responsibility for the care 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 Guardia nship and
Conservatorship Act;
4. "Abuse" means causing or permitting:
a. the infliction of physical pain, injury, sexual abuse,
sexual exploitation, unreasonable restraint or
confinement, mental anguish or personal degradation,
or
b. the deprivation of n utrition, clothing, shelter,
health care, or other care or services without which
serious physical or mental injury is likely to occur
to a vulnerable adult by a caretaker or other person
providing services to a vulnerable adult;
5. "Exploitation" or "exploit" means an unjust or improper use
of the resources of a vulnerable adult for the profit or advantage,
pecuniary or otherwise, of a person other than the vulnerable adult
through the use of undue influence, coercion, harassment, duress,
deception, false representation or false pretense;
6. "Financial neglect" means 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 mismanaging 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 adequate 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 vulnerabl e adult with
adequate shelter, nutrition, health care, or clothing,
or
c. negligent acts or omissions that result in harm or the
unreasonable risk of harm to a vulnerable adult
through the action, inaction, or lack of supervision
by a caretaker providing d irect services;
8. "Personal degradation " means a willful act by a caretaker
intended to shame, degr ade, humiliate or otherwise harm the personal
dignity of a vulnerable adult, or where the caretaker knew or
reasonably should have known the act would caus e shame, degradation,
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humiliation or harm to the personal dignity 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 otherwise harm the personal dignity of the
dependent adult, or where the caretaker knew or reasonably should
have known the act would cause shame, degradation, humiliation or
harm to the personal d ignity of a reasonable person. Personal
degradation does not include:
a. the taking, transmission or display of an electronic
image of a vulnerable adult for the purpose of
reporting vulnerable adult abuse to law enforcement,
the Department of Human Servi ces or other regulatory
agency that oversees caretakers or enforces 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, transmissio n 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 vulnerable
adult by or through the union with the sexual organ of
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a caretaker or other perso n providing services to the
vulnerable adult, or the anal or vaginal penetration
of a vulnerable adul t by a caretaker or other person
providing services to the vulnerable adult with any
other object, or
b. for the purpose of sexual gratification, the touch ing,
feeling or observation of the body or private parts of
a vulnerable adult by a caretaker or other person
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 vulnerable
adult to:
a. look upon the body or priv ate 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 to, 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, so unds, or other
communication including, but not limited to, gestures, 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, shame or degradation.
B. Nothing in this section shall be construed 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 wit h the 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 accordance with the tenets
and practices of a recognized church or religious 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 5. 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, re ads as follows:
A. A claim for elder neglect, exploitation, or abuse, as
prescribed in this section, may 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 w as living at the
time of the act or omission giving rise to the claim.
B. A person who commits negle ct 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 an amount that compens ates 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 i n subsections
B and C of this section shall be entitled to recover 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, conser vator, agent under an
appropriate power of attorney, duly appointed 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 pres cribed in this section, the
court may authorize or direct the 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 physician, 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 ( 10) 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 ob tained.
H. The claims provided for in this section survive the death of
the vulnerable adult.
SECTION 6. 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 a ct 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 7. 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, r eads as follows:
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Subject to a specific court order, the physician -patient
privilege nor spousal privi lege shall be grounds for excluding
evidence regarding the neglect, exploitation, or abuse of a
vulnerable adult or the cause thereof in any judicial proce eding
arising under this act.
SECTION 8. This act shall become effective November 1, 2023.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY
April 9, 2024 - DO PASS AS AMENDED