SENATE BILL NO. 222
AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO THE ELDERLY AND DISABLED.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 25, Title 6, Delaware Code by adding thereto a new Subchapter as follows:
"Subchapter VII. ENHANCED PENALTIES WHEN ELDER OR DISABLED PERSONS ARE TARGETED.
(a) 'Elder person' means a person who is sixty—five years of age or older.
(b) 'Disabled person' means a person who has a handicap or disability as defined in §4602 of this Title.
(c) 'Substantially limits' means substantially interferes with or affects over an extended period of time. Minor temporary ailments or injuries shall not be considered physical or mental impairments which substantially limit a person's major life activities. Examples of minor temporary ailments are colds, influenza, or sprains or minor injuries.
(d) 'Major life activities' includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
§2571. Civil penalty; Disposition of Funds.
(a) If any person is found to have violated any provision of this chapter, and said violation is committed against elder or disabled persons, in addition to any criminal or civil penalty otherwise set forth or imposed, the court may impose an additional civil penalty not to exceed ten thousand dollars ($10,000) for each violation.
(b) The civil penalties imposed pursuant to subsection (a) of this section shall be deposited with the State Treasurer and placed into the Consumer Protection Fund as created by §2527 of this Chapter, shall be subject to appropriation by the General Assembly, and shall be used for the investigation and prosecution of deceptive acts against elder and disabled persons and for consumer education initiatives.
§2572. Determination of civil penalty.
In determining whether to impose an enhanced civil penalty under this subchapter and the amount thereof, the court shall consider the extent to which one or more of the following factors are present:
(a) Whether the defendant's conduct was in disregard of the rights of the elder or disabled person;
(a) Whether the defendant knew or should have known that the defendant's conduct was directed to an elder person or disabled person;
(b) Whether the elder or disabled person was more vulnerable to the defendant's conduct because of age, poor health, infirmity, impaired understanding, restricted mobility or disability than other persons and whether the elder or disabled person actually suffered substantial physical, emotional or economic damage resulting from the defendant's conduct;
(c) Whether the defendant's conduct caused an elder or disabled person to suffer any of the following:
(1) Mental or emotional anguish;
(2) Loss of or encumbrance upon a primary residence of the elder or disabled person;
(3) Loss of or encumbrance upon the elder or disabled person's principal employment or principal source of income;
(4) Loss of funds received under a pension or retirement plan or a government benefits program;
(5) Loss of property set aside for retirement or for personal or family care and maintenance; or
(6) Loss of assets essential to the health and welfare of the elder or disabled person.
(e) Any other factors the court deems appropriate. §2573. Cause of action.
An elder or disabled person who suffers damage or injury as a result of an offense or violation described in this Chapter has a cause of action to recover actual damages, court costs and reasonable attorney's fees. Restitution ordered pursuant to this section has priority over a civil penalty imposed pursuant to this Subchapter.
§2574. Referrals for abuse, neglect and exploitation.
The Attorney General shall establish and maintain referral procedures with the Division of Aging and Adult Protective Services within the Department of Health and Social Services in order to provide any necessary intervention and assistance to elder or disabled persons who may have been victimized by violations of this Chapter."
Section 2. Amend §2527(f), Title 29, Delaware Code by inserting before the period therein the following:
"except for funds collected pursuant to Subchapter VII of this Chapter".
Section 3. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.
Approved July 14, 1993.