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1997 SESSION

966915296
HOUSE BILL NO. 273
Offered January 10, 1996
A BILL to amend and reenact § 18.2-369 of the Code of Virginia, relating to abuse of incapacitated adults; penalty.
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Patrons-- Howell and Purkey
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That § 18.2-369 of the Code of Virginia is amended and reenacted as follows:

§ 18.2-369. Abuse and neglect of incapacitated adults; penalty.

A. It shall be unlawful for any responsible person to abuse or, neglect, or exploit any incapacitated adult as defined in this section. Any responsible person who abuses or, neglects, or exploits an incapacitated adult in violation of this section shall be guilty of a Class 1 misdemeanor. Any responsible person who is convicted of a second or subsequent offense under this section shall be guilty of a Class 6 felony.

In any event, if a violation results in serious bodily injury or disease to another, conviction of an offense shall be punishable as a Class 6 felony. For purposes of this subsection, "serious bodily injury or disease" shall include but not be limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, or (vi) life threatening internal injuries or conditions, whether or not caused by trauma.

B. For purposes of this section:

"Abuse" means (i) malicious conduct that causes physical injury or, pain, or mental anguish or (ii) malicious use of physical restraint, including confinement, as punishment, for convenience or as a substitute for treatment, except where such conduct or physical restraint, including confinement, is a part of care or treatment and is in furtherance of the health and safety of the incapacitated person.

"Exploit" means the wrongful use of the resources of an incapacitated adult for another's profit or advantage.

"Incapacitated adult" means any person eighteen years or older who is impaired by reason of mental illness, mental retardation, physical illness or disability, advanced age or other causes to the extent the adult lacks sufficient understanding or capacity to make, communicate or carry out reasonable decisions concerning his well-being.

"Neglect" means the willful failure by a responsible person to provide treatment, care, goods or services which results in injury to the health or endangers the safety of an incapacitated adult.

"Responsible person" means a person who has responsibility for the care, custody or control of an incapacitated person adult or his resources by operation of law or who has assumed such responsibility voluntarily, by contract, by power of attorney, or in fact.

C. No responsible person shall be in violation of this section whose conduct was (i) in accordance with the informed consent of the incapacitated person or a person authorized to consent on his behalf; (ii) in accordance with a declaration by the incapacitated person under the Natural Death Act of Virginia (§ 54.1-2981 et seq.) or with the provisions of a valid medical power of attorney; or (iii) in accordance with the wishes of the incapacitated person or a person authorized to consent on behalf of the incapacitated person and in accord with the tenets and practices of a church or religious denomination.

2. That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0.