D.C. Law 21-166. Financial Exploitation of Vulnerable Adults and the Elderly Amendment Act of 2016.

D.C. Law 21-166. Financial Exploitation of Vulnerable Adults and the Elderly Amendment Act of 2016.

AN ACT

To amend the District of Columbia Theft and White Collar Crimes Act of 1982 to increase the term of imprisonment from 10 to 15 years for theft in the first degree, to repeal enhanced penalties for identity theft and include those penalties in another provision of the act, to change the age of enhanced penalty applicability for crimes against seniors from 60 years to 65 years, and to add the crime of identity theft and financial exploitation of a vulnerable adult or elderly person to the list of crimes committed against seniors that are subject to enhanced penalties; to amend the Criminal Abuse and Neglect of Vulnerable Adults Act of 2000 to criminalize the financial exploitation of a vulnerable adult or elderly person, to modify the definition of the term vulnerable adult, to define the term elderly person, to conform the enhanced penalties for a vulnerable adult or elderly person to the enhanced penalties for theft, to establish civil penalties, and to provide for injunctive relief; and to amend the Attorney General for the District of Columbia Clarification and Elected Term Amendment Act of 2010 to provide the Attorney General with limited subpoena authority related to seeking relief for a victim of financial exploitation of a vulnerable adult or elderly person.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Financial Exploitation of Vulnerable Adults and the Elderly Amendment Act of 2016"

Sec. 2. The District of Columbia Theft and White Collar Crimes Act of 1982, effective December 1, 1982 (D.C. Law 4-164; D.C. Official Code § 22-3201 et seq.), is amended as follows:

Amend § 22-3212

(a) Section 112(c) (D.C. Official Code § 22-3212(c)) is amended by striking the number "10" and inserting the number "15" in its place.

Amend § 22-3227.03

(b) Section 127c(c) (D.C. Official Code § 22-3227.03(c)) is repealed.

Amend § 22-3601

(c) Section 201 (D.C. Official Code § 22-3601) is amended as follows:

(1) Subsection (a) is amended by striking the number "60" and inserting the number "65" in its place.

(2) Subsection (b) is amended by striking the phrase "or an attempt or conspiracy" and inserting the phrase "identity theft, financial exploitation of a vulnerable adult or elderly person, or an attempt or conspiracy" in its place.

(3) Subsection (c) is amended by striking the number "60" and inserting the number "65" in its place.

Sec. 3. The Criminal Abuse and Neglect of Vulnerable Adults Act of 2000, effective June 8, 2001 (D.C. Law 13-301; D.C. Official Code § 22-931 et seq.), is amended as follows:

Amend § 22-931

(a) Section 201 (D.C. Official Code § 22-931) is amended by striking the phrase "Criminal Abuse and Neglect of Vulnerable Adults" and inserting the phrase "Criminal Abuse, Neglect, and Financial Exploitation of Vulnerable Adults and the Elderly" in its place.

Amend § 22-932

(b) Section 202 (D.C. Official Code § 22-932) is amended to read as follows:

"Sec. 202. Definitions.

"For the purposes of this title, the term:

"(1) "Attorney General" means the Attorney General for the District of Columbia.

"(2) "Court" means the Superior Court of the District of Columbia.

"(3) "Elderly person" means a person who is 65 years of age or older.

"(4) "United States Attorney" means the United States Attorney for the District of Columbia.

"(5) "Vulnerable adult" means a person who is 18 years of age or older and has one or more physical or mental limitations that substantially impair the person's ability to independently provide for his or her daily needs or safeguard his or her person, property, or legal interests.".

Amend § 22-933

(c) Section 203 (D.C. Official Code § 22-933) is amended by striking the phrase in the lead-in language "a vulnerable adult" and inserting the phrase "a vulnerable adult or elderly person" in its place.

New § 22-933.01

(d) A new section 203a is added to read as follows:

"Sec. 203a. Financial exploitation of a vulnerabl adult or elderly person.

"(a) A person is guilty of financial exploitation of a vulnerable adult or elderly person if the person intentionally and knowingly:

"(1) Uses deception, intimidation, or undue influence to obtain the property, including money, of a vulnerable adult or elderly person, with the intent to deprive the vulnerable adult or elderly person of the property or use it for the advantage of anyone other than the vulnerable adult or elderly person;

"(2) Uses deception, intimidation, or undue influence to cause the vulnerable adult or elderly person to assume a legal obligation on behalf of, or for the benefit of, anyone other than the vulnerable adult or elderly person; or

"(3) Violates any provision of law proscribing theft, extortion, forgery, fraud, or identity theft against the vulnerable adult or elderly person, so long as the offense was undertaken to obtain the property, including money, of a vulnerable adult or elderly person, or to cause the vulnerable adult or elderly person to assume a legal obligation on behalf of, or for the benefit of, anyone other than the vulnerable adult or elderly person.

"(b) It is an affirmative defense that the accused knew or reasonably believed the victim was not a vulnerable adult or elderly person at the time of the offense, or could not have known or determined that the victim was a vulnerable adult or elderly person because of the manner in which the offense was committed. This defense shall be established by a preponderance of the evidence.

"(c) For the purposes of this section, the term "undue influence" means mental, emotional, or physical coercion that overcomes the free will or judgment of a vulnerable adult or elderly person and causes the vulnerable adult or elderly person to act in a manner that is inconsistent with his or her financial, emotional, mental, or physical well-being.".

Amend § 22-934

(e) Section 204 (D.C. Official Code § 22-934) is amended by striking the phrase "vulnerable adult" both times it appears and inserting the phrase "vulnerable adult or elderly person" in its place.

Amend § 22-935

(f) Section 205 (D.C. Official Code § 22-935) is amended by striking the phrase "vulnerable adult" both times it appears and inserting the phrase "vulnerable adult or elderly person" in its place.

Amend § 22-936

(g) Section 206 (D.C. Official Code § 22-936) is amended as follows:

(1) Subsection (a) is amended by striking the phrase "vulnerable person" and inserting the phrase "vulnerable adult or elderly person" in its place.

(2) Subsection (b) is amended by striking the phrase "vulnerable adult" and inserting the phrase "vulnerable adult or elderly person" in its place.

(3) Subsection (c) is amended by striking the phrase "vulnerable adult" and inserting the phrase "vulnerable adult or elderly person" in its place.

New § 22-936.01

(h) A new section 206a is added to read as follows:

"Sec. 206a. Criminal penalties for financial exploitation of a vulnerable adult or elderly person.

"(a) Any person who commits the offense of financial exploitation of a vulnerable adult or elderly person in violation of section 203a shall be subject to the following criminal penalties:

"(1) When the value of the property or legal obligation is $1,000 or more, a fine of not more than the amount set forth in section 101 of the Criminal Fine Proportionality Amendment Act of 2012, effective June 11, 2013 (D.C. Law 19-317; D.C. Official Code § 22-3571.01), or imprisonment for not more than 10 years, or both.

"(2) When the property or legal obligation has some value, a fine of not more than the amount set forth in section 101 of the Criminal Fine Proportionality Amendment Act of 2012, effective June 11, 2013 (D.C. Law 19-317; D.C. Official Code § 22-3571.01), or imprisonment for not more than 180 days, or both.

"(3) In addition to the penalties set forth in paragraphs (1) and (2) of this subsection, a person shall make restitution, before the payment of any fines or civil penalties.

"(b) A person convicted of a violation of section 203a who has 2 or more prior convictions for violating section 203a, not committed on the same occasion, shall be fined not more than the amount set forth in section 101 of the Criminal Fine Proportionality Amendment Act of 2012, effective June 11, 2013 (D.C. Law 19-317; D.C. Official Code § 22-3571.01), or imprisoned for not more than 15 years, or both.".

(i) New sections 207 and 208 are added to read as follows:

New § 22-937

"Sec. 207. Civil penalties for financial exploitation of a vulnerable adult or elderly person.

"(a) In addition to other penalties provided by law, a person who violates section 203a shall be subject to the following civil penalties:

"(1) A fine of up to $5,000 per violation;

"(2) Revocation of all permits, certificates, or licenses issued by the District of Columbia authorizing the person to provide services to vulnerable adults or elderly persons; and

"(3) A temporary or permanent injunction.

"(b) Restitution under section 206a shall be paid before the payment of any fines or civil penalties under this section.

New § 22-938

"Sec. 208. Injunctive relief and protections.

"(a) Whenever the Attorney General or the United States Attorney has reason to believe that a person has engaged in financial exploitation of a vulnerable adult or elderly person in violation of section 203a, the Attorney General or the United States Attorney may petition the court, which may be by ex-parte motion and without notice to the person, for one or more of the following:

"(1) A temporary restraining order;

"(2) A temporary injunction;

"(3) An order temporarily freezing the person's assets; or

"(4) Any other relief the court deems just.

"(b) The court may grant an ex-parte motion authorized by subsection (a) of this section without notice to the person against whom the injunction or order is sought if the court finds that facts offered in support of the motion establish that:

"(1) There is a substantial likelihood that the person committed financial exploitation of a vulnerable adult or elderly person;

"(2) The harm that may result from the injunction or order is clearly outweighed by the risk of harm to the vulnerable adult or elderly person if the inunction or order is not issued; and

"(3) If the Attorney General or the United States Attorney has petitioned for an order temporarily freezing assets, the order is necessary to prevent dissipation of assets obtained in violation of section 203a.

"(c)(1) An order temporarily freezing assets without notice to the person pursuant to subsections (a)(3) and (b) of this section shall expire on a date set by the court, not later than 14 days after the court issues the order unless, before that time, the court extends the order for good cause shown.

"(2) A person whose assets were temporarily frozen under paragraph (1) of this subsection may move to dissolve or modify the order after notice to the Attorney General for the United States Attorney. The court shall hear and decide the motion or application on an expedited basis.

"(d) The court may issue an order temporarily freezing the assets of the vulnerable adult or elderly person to prevent dissipation of assets; provided, that the court also appoints a receiver or conservator for those assets. The order shall allow for the use of assets to continue care for the vulnerable adult or elderly person, and can only be issued upon a showing that a temporary injunction or temporary restraining order authorized by this section would be insufficient to safeguard the assets, or with the consent of the vulnerable adult or elderly person or his or her legal representative.".

New § 1-301.88e

Sec. 4. The Attorney General for the District of Columbia Clarification and Elected Term Amendment Act of 2010, effective May 27, 2010 (D.C. Law 18-160; D.C. Official Code 1-301.81 et seq.), is amended by adding a new section 110b to read as follows:

"Sec. 110b. Authority to issue subpoenas in matters involving the financial exploitation of vulnerable adults and the elderly.

"(a) Notwithstanding section 110(a), and subject to the requirements under this section, the Attorney General for the District of Columbia shall have the authority to issue subpoenas for the production of documents and materials or for the attendance and testimony of witnesses under oath, or both, for the purposes of seeking relief under sections 207 and 208 of the Criminal Abuse, Neglect, and Financial Exploitation of Vulnerable Adults and the Elderly Act of 2000, passed on 2nd reading on July 12, 2016 (Enrolled version of Bill 21-326).

"(b)(1) Subpoena authority established by this section may only be used in furtherance of seeking relief under sections 207 and 208 of the Criminal Abuse, Neglect, and Financial Exploitation of Vulnerable Adults and the Elderly Act of 2000, passed on 2nd reading on July 12, 2016 (Enrolled version of Bill 21-326).

"(2) Testimony obtained pursuant to this subpoena authority shall not be used in furtherance of a criminal investigation related to a violation of section 203a of the Criminal Abuse, Neglect, and Financial Exploitation of Vulnerable Adults and the Elderly Act of 2000, passed on 2nd reading on July 12, 2016 (Enrolled version of Bill 21-326), and shall not be admissible in a criminal proceeding against the person who provided the information.

"(c) The Attorney General shall not have the authority to issue a subpoena under this section if an indictment, information, or petition has been filed with the court formally charging the target of the investigation with a violation of section 203a of the Criminal Abuse, Neglect, and Financial Exploitation of Vulnerable Adults and the Elderly Act of 2000, passed on 2nd reading on July 12, 2016 (Enrolled version of Bill 21-326).

"(d) The power to issue subpoenas pursuant to this section shall not be delegated other than to the Chief Deputy Attorney General, a Deputy Attorney General, or an Assistant Deputy Attorney General.

"(e) Subpoenas issued pursuant to this section shall contain the information required in section 110a(b).

"(f) Unless otherwise permitted by the Office of the Attorney General, only attorneys for the Office of the Attorney General and their staff, other people involved in the investigation, the witness under examination, his or her attorney, interpreters when needed, and, for the purpose of taking the evidence, a stenographer or operator of a recording device may be present during the taking of testimony.

"(g) In the case of refusal to obey a subpoena issued under this section, the Attorney General may petition the Superior Court of the District of Columbia for an order requiring compliance. Any failure to obey the order of the court may be treated by the court as contempt.

"(h) Any person to whom a subpoena has been issued under this section may exercise the privileges enjoyed by all witnesses. A person to whom a subpoena has been issued may move to quash or modify the subpoena in the Superior Court of the District of Columbia on grounds including:

"(1) The Attorney General failed to follow or satisfy the procedures set forth in this section for issuance of a subpoena;

"(2) The Attorney General lacked the authority to issue the subpoena under this section; or

"(3) Any other grounds that exist under statute or common law for quashing or modification of a subpoena.".

Sec. 5. Fiscal impact statement.

The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 4a of the General Legislative Procedures Act of 1975, approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a).

Sec. 6. Effective date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 60-day period of congressional review as provided in section 602(c)(2) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(2)), and publication in the District of Columbia Register.