SENATE BILL No. 463

 

 

June 15, 2011, Introduced by Senator YOUNG and referred to the Committee on Families, Seniors and Human Services.

 

 

 

     A bill to amend 1939 PA 280, entitled

 

"The social welfare act,"

 

by amending sections 11 and 11a (MCL 400.11 and 400.11a), as

 

amended by 1990 PA 122.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 11. As used in this section and sections 11a to 11f:

 

     (a) "Abuse" means harm or threatened harm to an adult's health

 

or welfare caused by another person. Abuse includes, but is not

 

limited to, nonaccidental physical or mental injury, sexual abuse,

 

financial exploitation, or maltreatment.

 

     (b) "Adult in need of protective services" or "adult" means a

 

vulnerable person not less than 18 years of age who is suspected of

 

being or believed to be abused, neglected, or exploited.

 

     (c) "Deception" means that a person knowingly does 1 or more

 


of the following to an incapacitated or vulnerable adult:

 

     (i) Creating or confirming a false impression in an

 

incapacitated or vulnerable adult's mind.

 

     (ii) Failing to correct a false impression that the person is

 

responsible for creating or confirming in an incapacitated or

 

vulnerable adult's mind.

 

     (iii) Making a promise to an incapacitated or vulnerable adult

 

that the person does not intend to perform or that the person knows

 

will not or cannot be performed. A person's failure to perform a

 

promise is not by itself sufficient proof that the person did not

 

intend to perform the promise.

 

     (iv) Misrepresenting or concealing a material fact that relates

 

to the terms of a contract or an agreement that the person enters

 

into with the incapacitated or vulnerable adult or that relates to

 

the existing or preexisting condition of any of the property

 

involved in a contract or an agreement.

 

     (v) Using any material misrepresentation, false pretense, or

 

false promise to induce, encourage, or solicit an incapacitated or

 

vulnerable adult to enter into a contract or agreement.

 

     (d) (c) "Exploitation" means an action that involves the

 

misuse of an adult's funds, property, or personal dignity, or

 

financial exploitation by another person.

 

     (e) "Financial exploitation" means the action of a person in a

 

position of trust and confidence and who by intimidation or

 

deception knowingly takes control, title, use, or management of an

 

incapacitated or vulnerable adult's assets or property with the

 

intent to permanently deprive that incapacitated or vulnerable

 


adult of his or her asset or property.

 

     (f) "Financial institution" means a state or nationally

 

chartered bank or a state or federally chartered savings and loan

 

association, savings bank, credit union, brokerage firm, or any

 

person who provides financial services that maintains a principal

 

office or branch in this state. For the purposes of this section

 

and sections 11a to 11f, financial institution does not include a

 

life insurance company.

 

     (g) "Intimidation" includes, but is not limited to,

 

threatening to deprive an incapacitated or vulnerable adult of

 

food, nutrition, shelter, necessary medication, or medical

 

treatment.

 

     (h) (d) "Neglect" means harm to an adult's health or welfare

 

caused by the inability of the adult to respond to a harmful

 

situation or by the conduct of a person who assumes responsibility

 

for a significant aspect of the adult's health or welfare. Neglect

 

includes the failure to provide adequate food, clothing, shelter,

 

or medical care. A person shall not be considered to be abused,

 

neglected, or in need of emergency or protective services for the

 

sole reason that the person is receiving or relying upon treatment

 

by spiritual means through prayer alone in accordance with the

 

tenets and practices of a recognized church or religious

 

denomination, and this act shall not require any medical care or

 

treatment in contravention of the stated or implied objection of

 

that person.

 

     (i) "Person" means an individual, partnership, corporation,

 

association, governmental entity, or other legal entity.

 


     (j) "Position of trust" means that a person is any of the

 

following:

 

     (i) A person who has assumed a duty to provide care to an

 

incapacitated or vulnerable adult.

 

     (ii) A joint tenant or a tenant in common with an incapacitated

 

or vulnerable adult.

 

     (iii) A person who is in a fiduciary relationship with an

 

incapacitated or vulnerable adult including a de facto guardian or

 

de facto conservator.

 

     (k) (e) "Protective services" includes, but is not limited to,

 

remedial, social, legal, health, mental health, and referral

 

services provided in response to a report of alleged harm or

 

threatened harm because of abuse, neglect, or exploitation, or

 

financial exploitation.

 

     (l) "Suspected financial exploitation" means when a person who

 

is required to report financial exploitation under section 11a

 

observes or has knowledge of behavior or unusual circumstances or

 

transactions, or a pattern of behavior or unusual circumstances or

 

transactions, that would lead a person with similar training or

 

experience, based on the same facts, to form a reasonable belief

 

that an incapacitated or vulnerable adult is the victim of

 

financial exploitation.

 

     (m) (f) "Vulnerable" means a condition in which an adult is

 

unable to protect himself or herself from abuse, neglect, or

 

exploitation, or financial exploitation because of a mental or

 

physical impairment or because of advanced age.

 

     Sec. 11a. (1) A Except as otherwise provided in this

 


subsection, a person who is employed, licensed, registered, or

 

certified to provide health care, educational, social welfare,

 

mental health, or other human services; an employee of an agency

 

licensed to provide health care, educational, social welfare,

 

mental health, or other human services; a law enforcement officer;

 

or an employee of the office of the county medical examiner who

 

suspects or has reasonable cause to believe that an adult has been

 

abused, neglected, or exploited, or financially exploited shall

 

make immediately, by telephone or otherwise, an oral report to the

 

county department of social services of the county in which the

 

abuse, neglect, or exploitation is suspected of having or believed

 

to have occurred. After making the oral report, the reporting

 

person may file a written report with the county department. A

 

person described in this subsection who is also required to make a

 

report pursuant to under section 21771 of the public health code,

 

Act No. 368 of the Public Acts of 1978, as amended, being section

 

333.21771 of the Michigan Compiled Laws 1978 PA 368, MCL 333.21771,

 

and who makes that report is not required to make a duplicate

 

report to the county department of social services under this

 

section.

 

     (2) A report made by a physician or other licensed health

 

professional pursuant to under subsection (1) shall not be

 

considered a violation of any legally recognized privileged

 

communication or a violation of article 15 of the public health

 

code, Act No. 368 of the Public Acts of 1978, being sections

 

333.16101 to 333.18838 of the Michigan Compiled Laws 1978 PA 368,

 

MCL 333.16101 to 333.18838.

 


     (3) In addition to those persons required to make an oral

 

report under subsection (1), any person who suspects that an adult

 

has been abused, neglected, or exploited, or financially exploited

 

may make a report to the county department of social services of

 

the county in which the abuse, neglect, or exploitation is

 

suspected of having occurred.

 

     (4) A report made under this section shall contain the name of

 

the adult and a description of the abuse, neglect, or exploitation.

 

If possible, the report shall contain the adult's age and the names

 

and addresses of the adult's guardian or next of kin, and of the

 

persons with whom the adult resides, including their relationship

 

to the adult. The report shall contain other information available

 

to the reporting person that may establish the cause of the abuse,

 

neglect, or exploitation and the manner in which the abuse,

 

neglect, or exploitation occurred or is occurring. The county

 

department shall reduce to writing the information provided in an

 

oral report received pursuant to under this section.

 

     (5) The county department shall report to a police agency any

 

criminal activity that it believes to be occurring, upon receipt of

 

the oral report.

 

     (6) This section shall not be construed as limiting the

 

responsibilities of the police agency of a local unit of government

 

to enforce the laws of this state or as precluding the police

 

agency from reporting and investigating, as appropriate, alleged

 

criminal conduct.

 

     (7) A financial institution shall provide to its employees who

 

perform financial services training on how to identify suspected

 


financial exploitation. The training shall include, but is not

 

limited to, where and how to report suspected financial

 

exploitation, identifying unusual banking or financial activity

 

that may be financial exploitation, and identifying behavior

 

exhibited by a vulnerable adult that may indicate he or she is the

 

victim of financial exploitation.

 

     (8) In addition to immunity provided under section 11c, a

 

person acting in good faith who makes a report or who assists in

 

the implementation of this section as it relates to financial

 

exploitation is immune from civil liability that might otherwise be

 

incurred by making the report or by assisting in the making of the

 

report. A person making a report or assisting in the implementation

 

of this section as it relates to financial exploitation is presumed

 

to have acted in good faith. The immunity from civil liability as

 

it relates to financial exploitation extends only to an act

 

performed under this section and does not extend to a negligent act

 

that causes personal injury or death.