Elder Abuse and Elder Financial Exploitation Statutes

Chapter 39. MENTALLY ILL, INCAPACITATED AND DEPENDENT PERSONS; SOCIAL WELFARE 
Article 14. REPORTING ABUSE, NEGLECT OR EXPLOITATION OF CERTAIN PERSONS
39-1430. Abuse, neglect or exploitation of certain adults; definitions.

As used in this act:

(e) “Financial exploitation” means the unlawful or improper use, control or withholding of an adult's property, income, resources or trust funds by any other person or entity in a manner that is not for the profit of or to the advantage of the adult. “Financial exploitation” includes, but is not limited to:
(1) The use of deception, intimidation, coercion, extortion or undue influence by a person or entity to obtain or use an adult's property, income, resources or trust funds in a manner for the profit of or to the advantage of such person or entity;
(2) the breach of a fiduciary duty, including, but not limited to, the misuse of a power of attorney, trust or a guardianship or conservatorship appointment, as it relates to the property, income, resources or trust funds of the adult; or
(3) the obtainment or use of an adult's property, income, resources or trust funds, without lawful authority, by a person or entity who knows or clearly should know that the adult lacks the capacity to consent to the release or use of such adult's property, income, resources or trust funds.

(b)(1) “Adult” means an individual 18 years of age or older alleged to be unable to protect their own interest and who is harmed or threatened with harm, whether financial, mental or physical in nature, through action or inaction by either another individual or through their own action or inaction when: (A) Such person is residing in such person's own home, the home of a family member or the home of a friend; (B) such person resides in an adult family home as defined in K.S.A. 39-1501, and amendments thereto; or (C) such person is receiving services through a provider of community services and affiliates thereof operated or funded by the Kansas department for children and families or the Kansas department for aging and disability services or a residential facility licensed pursuant to K.S.A. 39-2001 et seq., and amendments thereto. (2) "Adult" does not include persons to whom K.S.A. 39-1401 et seq., and amendments thereto, apply.

Chapter 21. Crimes and Punishments
Kansas Criminal Code
Article 54. Crimes Against Persons
§ 21-5417. Mistreatment of a dependent adult; mistreatment of an elder person

(a) Mistreatment of a dependent adult or an elder person is knowingly committing one or more of the following acts:

(2) taking the personal property or financial resources of a dependent adult or an elder person for the benefit of the defendant or another person by taking control, title, use or management of the personal property or financial resources of a dependent adult or an elder person through:
(A) Undue influence, coercion, harassment, duress, deception, false representation, false pretense or without adequate consideration to such dependent adult or elder person;
(B) a violation of the Kansas power of attorney act, K.S.A. 58-650 et seq., and amendments thereto;
(C) a violation of the Kansas uniform trust code, K.S.A. 58a-101 et seq., and amendments thereto; or
(D) a violation of the act for obtaining a guardian or a conservator, or both, K.S.A. 59-3050 et seq., and amendments thereto;

(e) As used in this section:

(2) “Dependent adult” means an individual 18 years of age or older who is unable to protect the individual's own interest. Such term shall include, but is not limited to, any:
(A) Resident of an adult care home including, but not limited to, those facilities defined by K.S.A. 39-923, and amendments thereto;
(B) adult cared for in a private residence;
(C) individual kept, cared for, treated, boarded, confined or otherwise accommodated in a medical care facility;
(D) individual with intellectual disability or a developmental disability receiving services through a community facility for people with intellectual disability or residential facility licensed under K.S.A. 39-2001 et seq., and amendments thereto;
(E) individual with a developmental disability receiving services provided by a community service provider as provided in the developmental disability reform act; or
(F) individual kept, cared for, treated, boarded, confined or otherwise accommodated in a state psychiatric hospital or state institution for people with intellectual disability.

(3) “Elder person” means a person 60 years of age or older.

Chapter 39.  Mentally Ill, Incapacitated and Dependent Persons; Social Welfare  Article 14.  Reporting Abuse, Neglect or Exploitation of Certain Persons

     (b) "Abuse" means any act or failure to act performed intentionally or recklessly that causes or is likely to cause harm to an adult, including:         (1) Infliction of physical or mental injury;         (2) any sexual act with an adult when the adult does not consent or when the other person knows or should know that the adult is incapable of resisting or declining consent to the sexual act due to mental deficiency or disease or due to fear of retribution or hardship;         (3) unreasonable use of a physical restraint, isolation or medication that harms or is likely to harm an adult;         (4) unreasonable use of a physical or chemical restraint, medication or isolation as punishment, for convenience, in conflict with a physician's orders or as a substitute for treatment, except where such conduct or physical restraint is in furtherance of the health and safety of the adult;         (5) a threat or menacing conduct directed toward an adult that results or might reasonably be expected to result in fear or emotional or mental distress to an adult;         (6) fiduciary abuse; or         (7) omission or deprivation by a caretaker or another person of goods or services which are necessary to avoid physical or mental harm or illness.

   (c) "Neglect" means the failure or omission by one's self, caretaker or another person with a duty to supply or provide goods or services which are reasonably necessary to ensure safety and well-being and to avoid physical or mental harm or illness.

    (d) "Exploitation" means misappropriation of an adult's property or intentionally taking unfair advantage of an adult's physical or financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker or another person.

21-5417. Mistreatment of a dependent adult. (a) Mistreatment of a dependent adult is knowingly committing one or more of the following acts:

(1) Infliction of physical injury, unreasonable confinement or unreasonable punishment upon a dependent adult;

(2) taking unfair advantage of a dependent adult's physical or financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense; or

(3) omission or deprivation of treatment, goods or services that are necessary to maintain physical or mental health of a dependent adult.

(b) Mistreatment of a dependent adult as defined in:

(1) Subsection (a)(1) is a severity level 5, person felony;

(2) subsection (a)(2) if the aggregate amount of the value of the resources is:

(A) $1,000,000 or more is a severity level 2, person felony;

(B) at least $250,000 but less than $1,000,000 is a severity level 3, person felony;

(C) at least $100,000 but less than $250,000 is a severity level 4, person felony;

(D) at least $25,000 but less than $100,000 is a severity level 5, person felony;

(E) at least $1,000 but less than $25,000 is a severity level 7, person felony;

(F) less than $1,000 is a class A person misdemeanor, except as provided in subsection (b)(2)(G); and

(G) less than $1,000 and committed by a person who has, within five years immediately preceding commission of the crime, the offender has been convicted of mistreatment of a dependent adult two or more times is a severity level 7, person felony; and

(3) subsection (a)(3) is a severity level 8, person felony.

(c) No dependent adult is considered to be mistreated for the sole reason that such dependent adult relies upon or is being furnished treatment by spiritual means through prayer in lieu of medical treatment in accordance with the tenets and practices of a recognized church or religious denomination of which such dependent adult is a member or adherent.

(d) As used in this section, "dependent adult" means an individual 18 years of age or older who is unable to protect the individual's own interest. Such term shall include, but is not limited to, any:

(1) Resident of an adult care home including, but not limited to, those facilities defined by K.S.A. 39-923, and amendments thereto;

(2) adult cared for in a private residence;

(3) individual kept, cared for, treated, boarded, confined or otherwise accommodated in a medical care facility;

(4) individual with intellectual disability or a developmental disability receiving services through a community facility for people with intellectual disability or residential facility licensed under K.S.A. 75-3307b, and amendments thereto;

(5) individual with a developmental disability receiving services provided by a community service provider as provided in the developmental disability reform act; or

(6) individual kept, cared for, treated, boarded, confined or otherwise accommodated in a state psychiatric hospital or state institution for people with intellectual disability.

(e) An offender who violates the provisions of this section may also be prosecuted for, convicted of, and punished for any other offense in article 54, 55, 56 or 58 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2012 Supp. 21-6418, and amendments thereto.