SENATE BILL 119
56th legislature - STATE OF NEW MEXICO - first session, 2023
Katy M. Duhigg and Peter Wirth and Christine Chandler
RELATING TO FINANCIAL EXPLOITATION; ENACTING THE FINANCIAL EXPLOITATION ACT; CREATING A CIVIL CAUSE OF ACTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Financial Exploitation Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Financial Exploitation Act:
A. "caregiver" means a person who has been entrusted with or has responsibility for the care of an eligible adult or the eligible adult's property; a court-appointed guardian or conservator; an adult living in the same household as the eligible adult; a health care provider; or an employee or volunteer of an adult daycare, assisted living or residential care facility, group home, nursing home, hospital, mental health treatment center or continuing care community or a service provider of such entity;
B. "confidential relationship" means a relationship of confidence and trust between an eligible adult and another person;
C. "eligible adult" means a person eighteen years of age or older with cognitive impairment or a mental, physical or developmental condition or other circumstance that causes the person to be susceptible to undue influence or substantially impaired in the ability to provide adequately for the person's personal or financial affairs or protection, regardless of whether the person has been adjudicated to be an incapacitated person pursuant to Section 45-5-304 or 45-5-407 NMSA 1978;
D. "fiduciary relationship" means an agreement or arrangement that creates fiduciary duties owed from one person to another;
E. "financial exploitation" means:
(1) the wrongful or unauthorized taking, conversion, withholding, appropriation or use of an eligible adult's assets; or
(2) an act or omission taken by a trusted person to obtain the benefit, control or use of an eligible adult's assets through the use of deception, intimidation or undue influence;
F. "transaction" means an agreement; contract; conveyance; deed; encumbrance; gift; guarantee; loan; mortgage; pledge; purchase; sale; title transfer; transfer of money, trust, security or other financial asset or real or personal property; or withdrawal from a financial, investment or securities account or changes to ownership on such account, but excludes wills, transfer on death beneficiary designations or instruments effective upon the death of an eligible adult;
G. "trusted person" means:
(1) a caregiver, health care or mental health care provider;
(2) a person upon whom an eligible adult is dependent and with whom the eligible adult has a confidential or fiduciary relationship; or
(3) a person in a position of authority with the eligible adult; and
H. "undue influence" means excessive persuasion or domination of the decision-making process of an eligible adult by a trusted person that causes an eligible adult to consent to a transaction or refrain from consenting to a transaction that would reasonably be expected to result in financial harm to the eligible adult, including controlling the eligible adult's interaction with others, access to information or necessaries of life; using affection, intimidation or coercion; or initiating changes in the eligible adult's personal or property rights in haste, secrecy or at inappropriate times and places.
SECTION 3. [NEW MATERIAL] CIVIL REMEDIES.--
A. An eligible adult, an attorney-in-fact or a conservator who has been granted financial powers by the court or a temporary conservator acting for or on behalf of an eligible adult may commence a civil action in a court of competent jurisdiction against a person suspected of financially exploiting an eligible adult in order to:
(1) return property;
(2) stop or enjoin a transaction;
(3) return any profit received from a transaction;
(4) seek compensatory damages for a transaction; or
(5) void or rescind a transaction.
B. To prevail on a claim made pursuant to this section, the plaintiff shall prove by a preponderance of the evidence that financial exploitation occurred.
C. Punitive damages may be awarded when a plaintiff proves that the defendant committed financial exploitation and:
(1) acted with knowledge that the transaction was wrongful; and
(2) acted with indifference or reckless disregard for the financial interests of the eligible adult that resulted in financial harm to the eligible adult.
D. If a plaintiff prevails against a defendant on a financial exploitation claim, the plaintiff shall recover reasonable attorney fees and costs incurred while pursuing such relief.
E. A remedy obtained pursuant to this section shall not limit the right, title and interest of a good faith purchaser, mortgagee, holder of a security interest or other third party who obtains an interest in property transferred from an eligible adult.
F. No proceeding made pursuant to this section shall be initiated after the death of the eligible adult.
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