1| SENATE FLOOR VERSION |
| April 9, 2024 |
2| AS AMENDED |
| |
3|ENGROSSED HOUSE |
|BILL NO. 2741 By: Duel, Roe, and Menz of the |
4| House |
| |
5| and |
| |
6| Weaver of the Senate |
| |
7| |
| |
8| |
| |
9| [ mental health - Neil's Law - Oklahoma Elder |
| Exploitation and Abuse Act - civil actions - venue |
10| provisions - access to records - privileged |
| relationships noncodification codification - |
11| effective date ] |
| |
12| |
| |
13|BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA: |
| |
14|
1| A. The purpose of the Oklahoma Elder Exploitation and Abuse Act |
| |
2|is to promote the general welfare of all citizens by establishing a |
| |
3|civil action for incapacitated persons and vulnerable adults which |
| |
4|provides for the protection of their rights and affords them a right |
| |
5|of civil action against those who neglect, exploit, or abuse them. |
| |
6| B. The purpose of the Oklahoma Elder Exploitation and Abuse Act |
| |
7|is to allow incapacitated persons and vulnerable adults, through |
| |
8|their legal representatives, to pursue claims against persons who |
| |
9|neglect, exploit, or abuse the incapacitated person or vulnerable |
| |
10|adult if he or she lacks the capacity to pursue such claims on his |
| |
11|or her own behalf. |
| |
12| C. The Oklahoma Elder Exploitation and Abuse Act does not |
| |
13|preclude an individual's mandatory responsibility to report to Adult |
| |
14|Protective Services or law enforcement if there is reasonable cause |
| |
15|to believe a vulnerable adult is being abused, neglected, or |
| |
16|exploited. |
| |
17| D. It is the intent of the Oklahoma State Legislature: |
| |
18| 1. That the district court shall exercise the authority |
| |
19|conferred by the Oklahoma Elder Exploitation and Abuse Act to |
| |
20|encourage the development of maximum self-reliance and independence |
| |
21|of incapacitated persons and vulnerable adults and make appointive |
| |
22|and other orders only to the extent necessitated by the mental and |
| |
23|adaptive limitations of other conditions of the incapacitated or |
| |
24|partially incapacitated person warranting the action; and |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 2
___________________________________________________________________________
1| 2. That in performing their duties and exercising their powers, |
| |
2|legal representatives bringing claims under this act for |
| |
3|incapacitated persons and vulnerable adults shall: |
| |
4| a. assure, to the extent reasonably possible, that the |
| |
5| rights of the persons for whom they are appointed are |
| |
6| protected, and |
| |
7| b. encourage, to the extent reasonably possible, |
| |
8| incapacitated persons and vulnerable adults to |
| |
9| participate to the maximum extent of their abilities |
| |
10| in all decisions which affect them concerning the |
| |
11| claims afforded them under this act. |
| |
12| SECTION 4. NEW LAW A new section of law to be codified |
| |
13|in the Oklahoma Statutes as Section 14-103 of Title 43A, unless |
| |
14|there is created a duplication in numbering, reads as follows: |
| |
15| A. When used in the Oklahoma Elder Exploitation and Abuse Act: |
| |
16| 1. "Incapacitated person" means: |
| |
17| a. any person eighteen (18) years of age or older: |
| |
18| (1) who is impaired by reason of mental or physical |
| |
19| illness or disability, dementia or related |
| |
20| disease, developmental or intellectual disability |
| |
21| or other cause, and |
| |
22| (2) whose ability to receive and evaluate |
| |
23| information effectively or to make and to |
| |
24| communicate responsible decisions is impaired to |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 3
___________________________________________________________________________
1| such an extent that such person lacks the |
| |
2| capacity to manage his or her financial resources |
| |
3| or to meet essential requirements for his or her |
| |
4| mental or physical health or safety without |
| |
5| assistance from others, or |
| |
6| b. a person for whom a guardian, limited guardian, or |
| |
7| conservator has been appointed pursuant to the |
| |
8| Oklahoma Guardianship and Conservatorship Act; |
| |
9| 2. "Vulnerable adult" means an individual who is an |
| |
10|incapacitated person or who, because of physical or mental |
| |
11|disability, including persons with Alzheimer's disease or other |
| |
12|dementias, incapacity, or other disability, is substantially |
| |
13|impaired in the ability to provide adequately for the care or |
| |
14|custody of himself or herself, or is unable to manage his or her |
| |
15|property and financial affairs effectively, or to meet essential |
| |
16|requirements for mental or physical health or safety, or to protect |
| |
17|himself or herself from abuse, neglect, or exploitation without |
| |
18|assistance from others; |
| |
19| 3. "Caretaker" means a person who has: |
| |
20| a. the responsibility for the care of a vulnerable adult |
| |
21| or the financial management of the resources of a |
| |
22| vulnerable adult as a result of a family relationship, |
| |
23| |
| |
24| |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 4
___________________________________________________________________________
1| b. assumed the responsibility for the care of a |
| |
2| vulnerable adult voluntarily, by contract, or as a |
| |
3| result of the ties of friendship, or |
| |
4| c. been appointed a guardian, limited guardian, or |
| |
5| conservator pursuant to the Oklahoma Guardianship and |
| |
6| Conservatorship Act; |
| |
7| 4. "Abuse" means causing or permitting: |
| |
8| a. the infliction of physical pain, injury, sexual |
| |
9| abuse, sexual exploitation, unreasonable restraint or |
| |
10| confinement, mental anguish or personal degradation, |
| |
11| or |
| |
12| b. the deprivation of nutrition, clothing, shelter, |
| |
13| health care, or other care or services without which |
| |
14| serious physical or mental injury is likely to occur |
| |
15| to a vulnerable adult by a caretaker or other person |
| |
16| providing services to a vulnerable adult; |
| |
17| 5. "Exploitation" or "exploit" means an unjust or improper use |
| |
18|of the resources of a vulnerable adult for the profit or advantage, |
| |
19|pecuniary or otherwise, of a person other than the vulnerable adult |
| |
20|through the use of undue influence, coercion, harassment, duress, |
| |
21|deception, false representation or false pretense; |
| |
22| 6. "Financial neglect" means repeated instances by a caretaker, |
| |
23|or other person, who has assumed the role of financial management, |
| |
24|of failure to use the resources available to restore or maintain the |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 5
___________________________________________________________________________
1|health and physical well-being of a vulnerable adult, including, but |
| |
2|not limited to: |
| |
3| a. squandering or negligently mismanaging the money, |
| |
4| property, or accounts of a vulnerable adult, |
| |
5| b. refusing to pay for necessities or utilities in a |
| |
6| timely manner, or |
| |
7| c. providing substandard care to a vulnerable adult |
| |
8| despite the availability of adequate financial |
| |
9| resources; |
| |
10| 7. "Neglect" means: |
| |
11| a. the failure to provide protection for a vulnerable |
| |
12| adult who is unable to protect his or her own |
| |
13| interest, |
| |
14| b. the failure to provide a vulnerable adult with |
| |
15| adequate shelter, nutrition, health care, or clothing, |
| |
16| or |
| |
17| c. negligent acts or omissions that result in harm or |
| |
18| the unreasonable risk of harm to a vulnerable adult |
| |
19| through the action, inaction, or lack of supervision |
| |
20| by a caretaker providing direct services; |
| |
21| 8. "Personal degradation" means a willful act by a caretaker |
| |
22|intended to shame, degrade, humiliate or otherwise harm the personal |
| |
23|dignity of a vulnerable adult, or where the caretaker knew or |
| |
24|reasonably should have known the act would cause shame, degradation, |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 6
___________________________________________________________________________
1|humiliation or harm to the personal dignity of a reasonable person. |
| |
2|Personal degradation includes the taking, transmitting, or display |
| |
3|of an electronic image of a vulnerable adult by a caretaker, where |
| |
4|the caretaker's actions constitute a willful act intended to shame, |
| |
5|degrade, humiliate or otherwise harm the personal dignity of the |
| |
6|dependent adult, or where the caretaker knew or reasonably should |
| |
7|have known the act would cause shame, degradation, humiliation or |
| |
8|harm to the personal dignity of a reasonable person. Personal |
| |
9|degradation does not include: |
| |
10| a. the taking, transmission or display of an electronic |
| |
11| image of a vulnerable adult for the purpose of |
| |
12| reporting vulnerable adult abuse to law enforcement, |
| |
13| the Department of Human Services or other regulatory |
| |
14| agency that oversees caretakers or enforces abuse or |
| |
15| neglect laws or rules, |
| |
16| b. the taking, transmission or display of an electronic |
| |
17| image of a vulnerable adult for the purpose of |
| |
18| treatment or diagnosis, or |
| |
19| c. the taking, transmission or display of an electronic |
| |
20| image of a vulnerable adult as part of an ongoing |
| |
21| investigation; |
| |
22| 9. "Sexual abuse" means: |
| |
23| a. oral, anal, or vaginal penetration of a vulnerable |
| |
24| adult by or through the union with the sexual organ of |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 7
___________________________________________________________________________
1| a caretaker or other person providing services to the |
| |
2| vulnerable adult, or the anal or vaginal penetration |
| |
3| of a vulnerable adult by a caretaker or other person |
| |
4| providing services to the vulnerable adult with any |
| |
5| other object, or |
| |
6| b. for the purpose of sexual gratification, the |
| |
7| touching, feeling or observation of the body or |
| |
8| private parts of a vulnerable adult by a caretaker or |
| |
9| other person providing services to the vulnerable |
| |
10| adult, or |
| |
11| c. indecent exposure by a caretaker or other person |
| |
12| providing services to the vulnerable adult; |
| |
13| 10. "Indecent exposure" means forcing or requiring a vulnerable |
| |
14|adult to: |
| |
15| a. look upon the body or private parts of another person |
| |
16| or upon sexual acts performed in the presence of the |
| |
17| vulnerable adult, or |
| |
18| b. touch or feel the body or private parts of another; |
| |
19| 11. "Sexual exploitation" includes, but is not limited to, a |
| |
20|caretaker's causing, allowing, permitting or encouraging a |
| |
21|vulnerable adult to engage in prostitution or in the lewd, obscene, |
| |
22|or pornographic photographing, filming or depiction of the |
| |
23|vulnerable adult as those acts are defined by state law; and |
| |
24| |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 8
___________________________________________________________________________
1| 12. "Verbal abuse" means the use of words, sounds, or other |
| |
2|communication including, but not limited to, gestures, actions or |
| |
3|behaviors, by a caretaker or other person providing services to a |
| |
4|vulnerable adult that are likely to cause a reasonable person to |
| |
5|experience humiliation, intimidation, fear, shame or degradation. |
| |
6| B. Nothing in this section shall be construed to mean a |
| |
7|vulnerable adult is abused or neglected for the sole reason the |
| |
8|vulnerable adult, in good faith, selects and depends upon spiritual |
| |
9|means alone through prayer, in accordance with the practices of a |
| |
10|recognized religious method of healing, for the treatment or cure of |
| |
11|disease or remedial care, or a caretaker or other person |
| |
12|responsible, in good faith, is furnishing such vulnerable adult |
| |
13|spiritual means alone through prayer, in accordance with the tenets |
| |
14|and practices of a recognized church or religious denomination, for |
| |
15|the treatment or cure of disease or remedial care in accordance with |
| |
16|the practices of or express consent of the vulnerable adult. |
| |
17| SECTION 5. NEW LAW A new section of law to be codified |
| |
18|in the Oklahoma Statutes as Section 14-104 of Title 43A, unless |
| |
19|there is created a duplication in numbering, reads as follows: |
| |
20| A. A claim for elder neglect, exploitation, or abuse, as |
| |
21|prescribed in this section, may be brought in any district court |
| |
22|within the county in the State of Oklahoma in which the vulnerable |
| |
23|adult lives or maintains his or her residence or was living at the |
| |
24|time of the act or omission giving rise to the claim. |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 9
___________________________________________________________________________
1| B. A person who commits neglect or financial neglect against a |
| |
2|vulnerable adult, proven by a preponderance of the evidence, shall |
| |
3|be liable for actual damages in an amount that compensates the |
| |
4|vulnerable adult for the loss he or she has incurred as a result |
| |
5|thereof and shall be liable for punitive damages as Oklahoma law |
| |
6|otherwise allows. |
| |
7| C. A person who commits exploitation or abuse of a vulnerable |
| |
8|adult, proven by a preponderance of the evidence, shall be liable |
| |
9|for damages three (3) times the actual damages incurred by the |
| |
10|vulnerable adult as a result thereof and shall be liable for |
| |
11|punitive damages as Oklahoma law otherwise allows. |
| |
12| D. The prevailing party in the claims prescribed in subsections |
| |
13|B and C of this section shall be entitled to recover reasonable |
| |
14|attorney fees and costs. |
| |
15| E. The claims prescribed in this section shall follow and |
| |
16|otherwise be subject to the general laws governing civil claims |
| |
17|under Oklahoma law, including, without limitation, the provisions |
| |
18|found in Titles 12 and 23 of the Oklahoma Statutes. |
| |
19| F. The claims provided for by this section may be brought by |
| |
20|the vulnerable adult or on behalf of the vulnerable adult by his or |
| |
21|her guardian, limited guardian, conservator, agent under an |
| |
22|appropriate power of attorney, duly appointed representative of the |
| |
23|estate of the vulnerable adult, if deceased, or other legal |
| |
24|representative approved by the court. |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 10
___________________________________________________________________________
1| G. In addition to any other documents or records to which the |
| |
2|vulnerable adult or his or her legal representative may be entitled |
| |
3|in pursuit of the claim or claims prescribed in this section, the |
| |
4|court may authorize or direct the vulnerable adult and his or her |
| |
5|legal representative access to and copies of financial, legal, |
| |
6|mental health, and physical health records of the vulnerable adult |
| |
7|in the possession of any physician, hospital, other health care |
| |
8|provider, firm, financial institution, lawyer, accountant, |
| |
9|counselor, broker, caregiver, corporation, other business entity, or |
| |
10|other facility or party. These records, upon order of the court, |
| |
11|shall be produced within ten (10) days, unless the court orders a |
| |
12|shorter time, and the records shall not be disclosed for any purpose |
| |
13|other than the purpose for which they have been obtained. |
| |
14| H. The claims provided for in this section survive the death of |
| |
15|the vulnerable adult. |
| |
16| SECTION 6. NEW LAW A new section of law to be codified |
| |
17|in the Oklahoma Statutes as Section 14-105 of Title 43A, unless |
| |
18|there is created a duplication in numbering, reads as follows: |
| |
19| The district court in which a claim authorized in this act is |
| |
20|filed may, upon proper application, issue a restraining order or |
| |
21|other injunctive relief to prohibit any further violation of this |
| |
22|act, regardless of the existence of any other remedy at law and in |
| |
23|addition thereto. |
| |
24| |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 11
___________________________________________________________________________
1| SECTION 7. NEW LAW A new section of law to be codified |
| |
2|in the Oklahoma Statutes as Section 14-106 of Title 43A, unless |
| |
3|there is created a duplication in numbering, reads as follows: |
| |
4| Subject to a specific court order, the physician-patient |
| |
5|privilege nor spousal privilege shall be grounds for excluding |
| |
6|evidence regarding the neglect, exploitation, or abuse of a |
| |
7|vulnerable adult or the cause thereof in any judicial proceeding |
| |
8|arising under this act. |
| |
9| SECTION 8. This act shall become effective November 1, 2023. |
| |
10|COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY |
|April 9, 2024 - DO PASS AS AMENDED |
11| |
| |
12| |
| |
13| |
| |
14| |
| |
15| |
| |
16| |
| |
17| |
| |
18| |
| |
19| |
| |
20| |
| |
21| |
| |
22| |
| |
23| |
| |
24| |
| |
arsid9926627 SENATE FLOOR VERSION - HB2741 SFLR Page 12
