STATE OF NEW YORK ________________________________________________________________________ 6819 2019-2020 Regular Sessions IN ASSEMBLY March 20, 2019 ___________ Introduced by M. of A. CRESPO -- read once and referred to the Committee on Codes AN ACT to amend the penal law, in relation to establishing the crime of financial exploitation of a vulnerable elderly person or a person with a disability; and to amend the general obligations law, in relation to civil liability for financial exploitation of a vulnerable elderly person The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The penal law is amended by adding a new article 262 to 2 read as follows: 3 ARTICLE 262 4 FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR 5 A PERSON WITH A DISABILITY 6 Section 262.00 Definitions. 7 262.05 Financial exploitation of a vulnerable elderly person or 8 a person with a disability in the fourth degree. 9 262.10 Financial exploitation of a vulnerable elderly person or 10 a person with a disability in the third degree. 11 262.15 Financial exploitation of a vulnerable elderly person or 12 a person with a disability in the second degree. 13 262.20 Financial exploitation of a vulnerable elderly person or 14 a person with a disability in the first degree. 15 262.30 Financial exploitation; no defense. 16 262.35 Financial exploitation; defense. 17 § 262.00 Definitions. 18 For purposes of this article, the following definitions shall apply: 19 1. "Vulnerable elderly person" means a person sixty years of age or 20 older who is suffering from a disease or infirmity associated with 21 advanced age and manifested by physical or mental dysfunctioning which EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10773-01-9

A. 6819 2 1 renders such person incapable of appraising or preventing the commission 2 of the offense. 3 2. "Person with a disability" means a person who has a physical, 4 mental or medical impairment resulting from anatomical, physiological, 5 or neurological conditions that prevent the exercise of a normal bodily 6 function or that substantially impair cognitive function, and include 7 but are not limited to, impairments requiring the use of an artificial 8 device to move, walk, see, hear, or breathe, such as a wheel chair, 9 braces, crutches, respirator, or other supportive equipment, or use of a 10 guide dog or other guiding device. 11 3. "Person" includes any individual, firm, partnership, association, 12 private or public corporation, or a government or governmental instru- 13 mentality. 14 4. "Intimidation" means the communication to a vulnerable elderly 15 person or a person with a disability that he or she shall be deprived of 16 food or nutrition, shelter, prescribed medication or medical care and 17 treatment; or the use of, or threatened use of, unlawful physical force; 18 or any threat involving extortion as defined in paragraph (e) of subdi- 19 vision two of section 155.05 of this chapter. 20 5. "Deception" means a false representation or concealment of a matter 21 of fact, whether by words or conduct, by false or misleading statements, 22 which deceives and is intended to deceive, the vulnerable elderly person 23 or person with a disability, so that he or she shall act upon it to his 24 or her economic detriment. 25 6. "Obtain" includes, but is not limited to, the bringing about of a 26 transfer or purported transfer of property or of a legal interest there- 27 in, whether to the obtainer or another. 28 7. "Control" means the power, right or authority to manage, direct, 29 superintend, restrict, regulate, govern, administer, or oversee the 30 whole or any part of the property of a vulnerable elderly person or a 31 person with a disability. 32 8. "A person stands in a position of trust or confidence" with a 33 vulnerable elderly person or a person with a disability when he or she: 34 (a) is a parent, spouse, adult child or other relative by blood or 35 marriage of the vulnerable elderly person or the person with a disabili- 36 ty, or 37 (b) is a joint tenant or tenant in common with the vulnerable elderly 38 person or the person with a disability, or 39 (c) has a power of attorney or other legal or fiduciary relationship 40 with the vulnerable elderly person or the person with a disability, or 41 (d) receives monetary or other valuable consideration for providing 42 care for the vulnerable elderly person or the person with a disability, 43 or 44 (e) lives with or provides some component of home care services on a 45 continuing basis to the vulnerable elderly person or the person with a 46 disability and includes a neighbor or friend who does not provide such 47 services but has access to the vulnerable elderly person or the person 48 with a disability based on such relationship. 49 9. "Property" means any money, personal property, real property, thing 50 in action, computer data, computer program, evidence of debt or 51 contract, or any article, substance or thing of value. 52 10. "Value of property" shall have the same meaning and shall be 53 ascertained in accordance with section 155.20 of this chapter. 54 § 262.05 Financial exploitation of a vulnerable elderly person or a 55 person with a disability in the fourth degree.

A. 6819 3 1 A person is guilty of financial exploitation of a vulnerable elderly 2 person or person with a disability in the fourth degree when he or she 3 stands in a position of trust or confidence with the vulnerable elderly 4 person or the person with a disability and he or she knowingly and by 5 deception or intimidation obtains control over the property of the 6 vulnerable elderly person or the person with a disability, with intent 7 to wrongfully deprive that person of the title to, use, benefit, or 8 possession of such property. 9 Financial exploitation of a vulnerable elderly person or a person with 10 a disability in the fourth degree is a class A misdemeanor. 11 § 262.10 Financial exploitation of a vulnerable elderly person or a 12 person with a disability in the third degree. 13 A person is guilty of financial exploitation of a vulnerable elderly 14 person or a person with a disability in the third degree when he or she 15 stands in a position of trust or confidence with the vulnerable elderly 16 person or the person with a disability and he or she knowingly and by 17 deception or intimidation obtains control over the property of the 18 vulnerable elderly person or the person with a disability, with intent 19 to wrongfully deprive that person of the title to, use, benefit, or 20 possession of such property, and the value of the property exceeds one 21 thousand dollars. 22 Financial exploitation of a vulnerable elderly person or a person with 23 a disability in the third degree is a class E felony. 24 § 262.15 Financial exploitation of a vulnerable elderly person or a 25 person with a disability in the second degree. 26 A person is guilty of financial exploitation of a vulnerable elderly 27 person or a person with a disability in the second degree when he or she 28 stands in a position of trust or confidence with the vulnerable elderly 29 person or the person with a disability and he or she knowingly and by 30 deception or intimidation obtains control over the property of the 31 vulnerable elderly person or the person with a disability, with intent 32 to wrongfully deprive that person of the title to, use, benefit, or 33 possession of such property, and the value of the property exceeds three 34 thousand dollars. 35 Financial exploitation of a vulnerable elderly person or a person with 36 a disability in the second degree is a class D felony. 37 § 262.20 Financial exploitation of a vulnerable elderly person or a 38 person with a disability in the first degree. 39 A person is guilty of financial exploitation of a vulnerable elderly 40 person or a person with a disability in the first degree when he or she 41 stands in a position of trust or confidence with the vulnerable elderly 42 person or the person with a disability and he or she knowingly and by 43 deception or intimidation obtains control over the property of the 44 vulnerable elderly person or the person with a disability, with intent 45 to wrongfully deprive that person of the title to, use, benefit, or 46 possession of such property, and the value of the property exceeds fifty 47 thousand dollars. 48 Financial exploitation of a vulnerable elderly person or a person with 49 a disability in the first degree is a class C felony. 50 § 262.30 Financial exploitation; no defense. 51 It shall be no defense to any prosecution for financial exploitation 52 that the defendant did not know the facts and conditions responsible for 53 making the victim a vulnerable elderly person or a person with a disa- 54 bility. 55 § 262.35 Financial exploitation; defense.

A. 6819 4 1 No provision of this article shall be deemed to impose criminal 2 liability upon any person who in good faith seeks to assist the vulner- 3 able elderly person or person with a disability in the management of his 4 or her property, but through no fault of such person is unable to assist 5 the vulnerable elderly person or the person with a disability. 6 § 2. The general obligations law is amended by adding a new section 7 11-108 to read as follows: 8 § 11-108. Civil liability for financial exploitation of a vulnerable 9 elderly person or a person with a disability. 1. A person charged by an 10 "accusatory instrument", as defined in subdivision one of section 1.20 11 of the criminal procedure law, with the offense of financial exploita- 12 tion of a vulnerable elderly person or a person with a disability as set 13 out in article two hundred sixty-two of the penal law, and who fails or 14 refuses to return the victim's property within sixty days following 15 receipt of a written demand from the victim or the victim's legal repre- 16 sentative shall, upon a finding that such person unlawfully obtained the 17 victim's property, be liable to the victim or to the estate of the 18 victim in damages of treble the amount of the value of the property 19 wrongfully obtained, plus reasonable attorney fees and court costs. 20 2. The burden of proof that the defendant unlawfully obtained the 21 victim's property shall be by a preponderance of the evidence. 22 3. This section shall be operative whether or not the defendant has 23 been convicted of the offense. 24 4. This section shall be operative in addition to any other right of 25 action or recovery otherwise available under law to the victim or the 26 victim's estate. 27 § 3. This act shall take effect on the first of November next succeed- 28 ing the date on which it shall have become a law.

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