Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB116 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 116
5	5	March 24, 2023 - Introduced by Representatives SUBECK, BALDEH, DRAKE, JOERS,
6	6	MOORE OMOKUNDE, OHNSTAD, ORTIZ-VELEZ, PALMERI, SINICKI, STUBBS and
7	7	BEHNKE, cosponsored by Senators WIRCH, HESSELBEIN, SMITH, SPREITZER and
8	8	TAYLOR. Referred to Committee on Judiciary.
9	9	*AUTHORS SUBJECT TO CHANGE*
10	10	AN ACT to create 895.033 of the statutes; relating to: civil cause of action for
11	11	financial exploitation.
12	12	Analysis by the Legislative Reference Bureau
13	13	This bill creates a civil cause of action for financial exploitation of a vulnerable
14	14	person. The bill defines the term “vulnerable person" to include persons who are
15	15	elderly, financially incapable, or incapacitated or those with a disability who are
16	16	susceptible to force, threat, duress, coercion, persuasion, or physical or emotional
17	17	injury because of a physical or mental impairment. Under the bill, an action for
18	18	injury or damages suffered by reason of financial exploitation may be brought
19	19	against a person who has caused the financial exploitation or allowed another person
20	20	to engage in the financial exploitation by 1) the vulnerable person who suffered the
21	21	alleged financial exploitation; 2) a guardian or conservator for the vulnerable person;
22	22	3) a personal representative for the estate of a decedent who was the vulnerable
23	23	person when the cause of action arose; or 4) a trustee for a trust on behalf of either
24	24	a trustor who is the vulnerable person or the spouse of a trustor who is the vulnerable
25	25	person.
26	26	The bill provides that an action may be brought if a person wrongfully takes or
27	27	appropriates money or property of a vulnerable person, without regard to whether
28	28	the person taking or appropriating the money or property has a fiduciary
29	29	relationship with the vulnerable person. An action may also be brought under the
30	30	bill in certain circumstances if a vulnerable person requests the transfer of money
31	31	or property that is held in trust and the other person, without good cause, either
32	32	continues to hold the money or property or fails to take reasonable steps to make the
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36	36	ASSEMBLY BILL 116
37	37	money or property readily available to the vulnerable person. The bill also allows
38	38	for an action against a person for permitting another person to engage in financial
39	39	exploitation if the person knowingly acts or fails to act under circumstances in which
40	40	a reasonable person should have known of the financial exploitation.
41	41	Under the bill, a court must award a person who brings a successful action
42	42	enhanced damages, attorney fees, and reasonable fees for any necessary services of
43	43	a conservator or guardian ad litem.
44	44	For further information see the state and local fiscal estimate, which will be
45	45	printed as an appendix to this bill.
46	46	The people of the state of Wisconsin, represented in senate and assembly, do
47	47	enact as follows:
48	48	SECTION 1. 895.033 of the statutes is created to read:
49	49	895.033 Financial exploitation of a vulnerable person. (1) In this
50	50	section:
51	51	(a) “Elderly person" means a person 65 years of age or older.
52	52	(b) “Financially incapable person" means a person who is unable to manage his
53	53	or her financial resources effectively for reasons including mental illness,
54	54	intellectual disability, physical illness or disability, chronic use of drugs or controlled
55	55	substances, chronic intoxication, confinement, detention by a foreign power, or
56	56	disappearance.
57	57	(c) “Incapacitated" has the meaning given in s. 701.0103 (12).
58	58	(d) “Noneconomic damages" has the meaning given in s. 893.55 (4) (a).
59	59	(e) “Person with a disability" means a person with a physical or mental
60	60	impairment that has all of the following characteristics:
61	61	1. Is likely to continue without substantial improvement for no fewer than 12
62	62	months or to result in death.
63	63	2. Prevents performance of substantially all of the ordinary duties of
64	64	occupations in which an individual not having the physical or mental impairment is
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86	86	capable of engaging, having due regard for the training, experience, and
87	87	circumstances of the person with the physical or mental impairment.
88	88	(f) “Vulnerable person" means any of the following:
89	89	1. An elderly person.
90	90	2. A financially incapable person.
91	91	3. An incapacitated person.
92	92	4. A person with a disability who is susceptible to force, threat, duress, coercion,
93	93	persuasion, or physical or emotional injury because of the person's physical or mental
94	94	impairment.
95	95	(2) Any of the following persons may, on behalf of a vulnerable person who
96	96	suffers injury or damage by reason of financial exploitation, bring an action under
97	97	this section against a person who has caused the financial exploitation or has
98	98	permitted another person to engage in the financial exploitation:
99	99	(a) The vulnerable person.
100	100	(b) A guardian or conservator for the vulnerable person.
101	101	(c) A personal representative for the estate of a decedent who was the
102	102	vulnerable person at the time the cause of action arose.
103	103	(d) A trustee for a trust on behalf of any of the following:
104	104	1. A trustor who is the vulnerable person.
105	105	2. The spouse of a trustor who is the vulnerable person.
106	106	(3) An action may be brought under this section for financial exploitation of a
107	107	vulnerable person if any of the following circumstances exist:
108	108	(a) A person wrongfully takes or appropriates money or property of a
109	109	vulnerable person, without regard to whether the person taking or appropriating the
110	110	money or property has a fiduciary relationship with the vulnerable person.
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137	137	SECTION 1 ASSEMBLY BILL 116
138	138	(b) A vulnerable person requests that another person transfer to the vulnerable
139	139	person any money or property that the other person holds or controls and that
140	140	belongs to or is held in express trust, constructive trust, or resulting trust for the
141	141	vulnerable person, and the other person, without good cause, either continues to hold
142	142	the money or property or fails to take reasonable steps to make the money or property
143	143	readily available to the vulnerable person when all of the following are true:
144	144	1. The other person or someone acting in concert with the other person acquires
145	145	ownership or control of the money or property in whole or in part from the vulnerable
146	146	person.
147	147	2. The other person acts in bad faith, or knew or should have known of the right
148	148	of the vulnerable person to have the money or property transferred as requested or
149	149	otherwise made available to the vulnerable person.
150	150	(4) A person may bring an action under this section against a person for
151	151	permitting another person to engage in financial exploitation of a vulnerable person
152	152	if the person knowingly acts or fails to act under circumstances in which a reasonable
153	153	person should have known of the financial exploitation.
154	154	(5) A transfer of money or property that is made for the purpose of qualifying
155	155	a vulnerable person for Medical Assistance benefits or for any other state or federal
156	156	assistance program, or the holding and exercise of control over money or property
157	157	after such a transfer, does not constitute a wrongful taking or appropriation under
158	158	sub. (3) (a) or the holding of money or property without good cause under sub. (3) (b).
159	159	(6) The court shall award all of the following to a plaintiff who prevails in an
160	160	action under this section:
161	161	(a) An amount equal to 3 times all economic damages resulting from the
162	162	financial exploitation, or $500, whichever amount is greater.
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192	192	(b) An amount equal to 3 times all noneconomic damages resulting from the
193	193	financial exploitation.
194	194	(c) Notwithstanding s. 814.04 (1), reasonable attorney fees incurred by the
195	195	plaintiff.
196	196	(d) Reasonable fees for the services of any conservator or guardian ad litem
197	197	incurred by reason of the litigation of a claim brought under this section.
198	198	(END)
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