AB691: Bill Text

LRB-4159/1

CMH/RPN/ARG:cjs:jf

2009 - 2010 LEGISLATURE

2009 Assembly BILL 691

January 25, 2010 - Introduced by Representatives Dexter, Bernard Schaber, Berceau, Sinicki, Suder, Turner and Zepnick, cosponsored by Senators Kreitlow, Taylor, Erpenbach, Lehman, Plale, Risser, Schultz, Sullivan and Coggs. Referred to Committee on Consumer Protection.

AB691,1,5 An Act to amend 757.69 (1) (j), 813.06, 814.61 (1) (a) and (b), 814.70 (1) and 814.70 (3) (intro.); and to create 46.90 (5g), 55.043 (1t), 801.50 (5u), 813.124 and 814.61 (1) (dm) of the statutes; relating to: requiring certain county agencies to petition a court to freeze accounts of certain individuals being financially exploited.

Analysis by the Legislative Reference Bureau

Under current law, if a county elder-adult-at-risk agency receives a report of alleged abuse, financial exploitation, neglect, or self-neglect (abuse) of an individual who is over 60 and who has experienced, is currently experiencing, or is at risk of experiencing abuse (elder adult at risk), the agency generally must respond to the report or refer the report to another agency for investigation. Similarly, if a county adult-at-risk agency believes that an adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is experiencing, or is at risk of experiencing abuse (adult at risk) is the subject of abuse, the adult-at-risk agency may investigate to determine whether the adult at risk is in need of protective services. Current law provides several options for investigation and response, including visits to the person's residence, observation, or reviews of certain records.

Under this bill, if either the elder-adult-at-risk agency or the adult-at-risk agency conducts an investigation that indicates that an individual at risk is the subject of financial exploitation, the agency must file a petition with a court to require the individual's financial institution to refuse transfers or withdrawals from, or "freeze," an account held by the individual. The bill requires that the petition specify the account and the financial institution and name the person who is likely, without court action, to exploit financially the individual at risk. The court must order the financial institution to freeze the account if the court finds reasonable grounds to believe that the account has been used to exploit the individual at risk, or is likely to be used by the named person to exploit the individual at risk, based upon the named person's prior conduct or based upon the findings of the agency. The court may hear testimony from the individual at risk; the individual's guardian or agent, if any; the person alleged to be the financial exploiter; and a representative of the financial institution. If the court issues an order freezing the account, the court has discretion to permit some activity on the account and to set the length of the freeze for any period up to one year.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB691, s. 1 Section 1. 46.90 (5g) of the statutes is created to read:

AB691,2,8 46.90 (5g) Response to financial exploitation. An elder-adult-at-risk agency shall, in response to an investigation under sub. (5) that indicated that an elder adult at risk is the subject of financial exploitation, file a petition under s. 813.124 (2) to request a court to order a financial institution, as defined in s. 705.01 (3), to refuse any transfers and withdrawals from any account the elder adult at risk holds, individually or jointly, at the financial institution. The petition shall comply with all requirements under s. 813.124 (2) (b).

AB691, s. 2 Section 2. 55.043 (1t) of the statutes is created to read:

AB691,3,2 55.043 (1t) Response to financial exploitation. An adult-at-risk agency shall, in response to an investigation under sub. (1r) that indicated that an adult at risk is the subject of financial exploitation, file a petition under s. 813.124 (2) to request a court to order a financial institution, as defined in s. 705.01 (3), to refuse any transfers and withdrawals from any account the adult at risk holds, individually or jointly, at the financial institution. The petition shall comply with all requirements under s. 813.124 (2) (b).

AB691, s. 3 Section 3. 757.69 (1) (j) of the statutes is amended to read:

AB691,3,5 757.69 (1) (j) Hold hearings, make findings and issue temporary restraining orders under s. 813.122 or, 813.123, or 813.124.

AB691, s. 4 Section 4. 801.50 (5u) of the statutes is created to read:

AB691,3,8 801.50 (5u) Venue of an action under s. 813.124 shall be in the county in which the cause of action arose or in which the petitioning agency is located.

AB691, s. 5 Section 5. 813.06 of the statutes is amended to read:

AB691,3,18 813.06 Security for damages. In proceedings under s. 767.225 the court or judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122, 813.124, 813.125, and 823.113 the court or judge shall, require a bond of the party seeking an injunction, with sureties, to the effect that he or she will pay to the party enjoined such damages, not exceeding an amount to be specified, as he or she may sustain by reason of the injunction if the court finally decides that the party was not entitled thereto. Copies of such the bond, affidavit, or other pleading shall be served upon the party enjoined and the officer serving the same shall, within 8 days after such service, file his or her return in the office of the clerk of the court.

AB691, s. 6 Section 6. 813.124 of the statutes is created to read:

AB691,3,21 813.124 Account injunctions for individuals at risk. (1) Definitions. In this section:

AB691,3,24 (a) "Account" means a contract of deposit of funds between a depositor and a financial institution, and includes a checking or savings account, certificate of deposit, share account, and other like arrangement.

AB691,3,25 (am) "Adult at risk" has the meaning given in s. 55.01 (1e).

AB691,4,1 (b) "Adult-at-risk agency" has the meaning given in s. 55.01 (1f).

AB691,4,2 (c) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).

AB691,4,3 (d) "Elder-adult-at-risk agency" has the meaning given in s. 46.90 (1) (bt).

AB691,4,4 (dm) "Financial institution" has the meaning given in s. 705.01 (3).

AB691,4,5 (e) "Financial exploitation" has the meaning given in s. 46.90 (1) (ed).

AB691,4,6 (f) "Individual at risk" means an elder adult at risk or an adult at risk.

AB691,4,8 (g) "Individual-at-risk agency" means an adult-at-risk agency or an elder-adult-at-risk agency.

AB691,4,10 (2) Petition. (a) An action under this section may be commenced only by a petition filed by an individual-at-risk agency.

AB691,4,11 (b) The petition shall allege facts sufficient to show the following:

AB691,4,12 1. The name of the individual at risk.

AB691,4,15 2. a. If the individual at risk named under subd. 1. is an elder adult at risk, that a report of financial exploitation against the individual at risk under s. 46.90 (5) has been investigated and confirmed.

AB691,4,18 b. If the individual at risk named under subd. 1. is an adult at risk, that a report of financial exploitation against the individual at risk under s. 55.043 (1r) has been investigated and confirmed.

AB691,4,20 3. The financial institution at which the financial exploitation has occurred or is likely to occur and the accounts that may be affected.

AB691,4,22 4. The name of the person who has conducted or is likely to conduct the financial exploitation.

AB691,5,5 (3) General procedure. Procedure for an action under this section is in 2 parts. First, the court or circuit court commissioner shall issue or refuse to issue a temporary restraining order. Second, the court shall hold a hearing under sub. (5) on whether to issue an injunction, which is the final relief. If the court or circuit court commissioner issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court or circuit court commissioner does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.

AB691,5,8 (4) Temporary restraining order. (a) A judge or circuit court commissioner shall issue a temporary restraining order, as specified in par. (b), if all of the following occur:

AB691,5,10 1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under sub. (2) (b).

AB691,5,12 2. The judge or circuit court commissioner finds reasonable grounds to believe any of the following:

AB691,5,15 a. That the individual at risk has been the subject of financial exploitation and that an account at the financial institution identified under sub. (2) (b) 3. has been used to aid the financial exploitation of the individual at risk.

AB691,5,19 b. That the the individual at risk is likely to be the subject of financial exploitation conducted by the person named under sub. (2) (b) 4. and that an account at the financial institution identified under sub. (2) (b) 3. is likely to be used to aid the financial exploitation of the individual at risk.

AB691,5,24 (b) A temporary restraining order issued under par. (a) shall order the financial institution identified under sub. (2) (b) 3. to refuse transfers or withdrawals from any account the individual at risk holds, individually or jointly, at the financial institution. In the order the judge may, as he or she determines is appropriate, order the refusal to be of any of the following:

AB691,5,25 1. All transfers and withdrawals from the account.

AB691,6,1 2. Any withdrawal by a specified person.

AB691,6,3 3. All transfers and withdrawals with specified exceptions for regular transfers or withdrawals.

AB691,6,5 (c) If a judge or circuit court commissioner issues a temporary restraining order, notice shall be given to the individual at risk.

AB691,6,11 (d) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (5). A judge shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence.

AB691,6,13 (5) Injunction. (a) The judge shall issue an injunction, as specified in par. (c) if all of the following occur:

AB691,6,15 1. The petitioner has filed a petition alleging the elements set forth under sub. (2) (b).

AB691,6,17 2. The petitioner serves a copy of the petition and notice of the time for hearing on the issuance of the injunction upon all of the following:

AB691,6,18 a. The financial institution identified under sub. (2) (b) 3.

AB691,6,19 b. The individual at risk named under sub. (2) (b) 1.

AB691,6,20 c. The person named under sub. (2) (b) 4.

AB691,6,23 d. Any person with whom the individual at risk holds a joint account at the financial institution identified under sub. (2) (b) 3. if the petitioner knows of any such account holder.

AB691,6,25 e. Any guardian, or agent under an activated power of attorney, of the individual at risk, if the petitioner knows of any such guardian or agent.

AB691,7,2 3. After a hearing, the judge finds reasonable grounds to believe any of the following:

AB691,7,5 a. That the individual at risk has been the subject of financial exploitation and that an account at the financial institution identified under sub. (2) (b) 3. has been used to aid the financial exploitation of the individual at risk.

AB691,7,9 b. That the individual at risk is likely to be the subject of financial exploitation conducted by the person named under sub. (2) (b) 4. and that an account at the financial institution identified under sub. (2) (b) 3. is likely to be used to aid the financial exploitation of the individual at risk.

AB691,7,12 (b) In determining whether there are reasonable grounds under par. (a) 3., the judge may, in his or her discretion, consider the petition filed under sub. (2), any other factors the judge finds appropriate, and any of the following:

AB691,7,15 1. The preferences of the individual at risk, but the judge shall note any coercion the individual-at-risk agency has identified in the investigation described under sub. (2) (b) 2.

AB691,7,17 2. Any preferences of a guardian, or agent under an activated power of attorney, of the individual at risk, if any.

AB691,7,21 3. Any testimony given by the person named under sub. (2) (b) 4., given by any person with whom the individual at risk holds a joint account that may be subject to the petition filed under sub. (2), or given by a representative of the financial institution identified under sub. (2) (b) 3.

AB691,8,2 (c) An injunction issued under par. (a) shall order the financial institution identified under sub. (2) (b) 3. to refuse transfers and withdrawals from any account the individual at risk holds, individually or jointly, at the financial institution. In the order the judge may, as he or she determines is appropriate, order the refusal to be of any of the following:

AB691,8,3 1. All transfers and withdrawals from the account.

AB691,8,4 2. Any withdrawal by a specified person.

AB691,8,6 3. All transfers and withdrawals with specified exceptions for regular transfers or withdrawals.

AB691,8,8 (d) An order under this subsection is effective according to its terms, but for not more than one year.

AB691,8,12 (6) Financial institutions subject to court orders. (a) A financial institution that complies with any order issued under sub. (4) or (5) is not liable to any person for complying with the order or for any other action arising from, or related to, the financial institution's compliance with the order.

AB691,8,18 (b) Notwithstanding any order issued under sub. (4) or (5), a financial institution may close an account identified in an order under sub. (4) or (5), or take any other action with respect to the account that is authorized in the account contract with the depositor, if the proceeds of the account are not distributed to any person named under sub. (2) (b) 4. or any other person identified in the order as being prohibited from making a withdrawal from the account.

AB691, s. 7 Section 7. 814.61 (1) (a) and (b) of the statutes are amended to read:

AB691,8,25 814.61 (1) (a) Except as provided under pars. (c), (d), (dm), and (e), at the commencement of all civil actions and special proceedings not specified in ss. 814.62 to 814.66, $75. Of the fees received by the clerk under this paragraph, the county treasurer shall pay $45 to the secretary of administration for deposit in the general fund and shall retain the balance for the use of the county. The secretary of administration shall credit $15 of the $45 to the appropriation under s. 20.680 (2) (j).

AB691,9,4 (b) Except as provided in pars. (c), (d), (dm), and (e), in addition to the fee under par. (a), at the commencement of an action affecting the family as defined in s. 767.001 (1), a fee of $20 to be deposited by the county treasurer in a separate account to be used by the county exclusively for the purposes specified in s. 767.405.