2021 Georgia Code
Title 30 - Handicapped Persons
Chapter 5 - Protection of Disabled Adults and Elder Persons
§ 30-5-3. Definitions

As used in this chapter, the term:

1. "Abuse" means the willful infliction of physical pain, physical injury, sexual abuse, mental anguish, unreasonable confinement, or the willful deprivation of essential services to a disabled adult or elder person.

   (1.1) "Adult Abuse, Neglect, and Exploitation Multidisciplinary Team" means the multiagency team established in each judicial circuit in this state pursuant to Code Section 30-5-11.

2. "Caretaker" means a person who has the responsibility for the care of a disabled adult or elder person as a result of family relationship, contract, voluntary assumption of that responsibility, or by operation of law.
3. "Department" means the Department of Human Services.
4. "Director" means the director of the Division of Aging Services of the Department of Human Services, or the director's designee.
5. "Disabled adult" means a person 18 years of age or older who is not a resident, but who:
   1. Is mentally or physically incapacitated;
   2. Has Alzheimer's disease, as defined in Code Section 31-8-180; or
   3. Has dementia, as defined in Code Section 16-5-100.
6. "Elder person" means a person 65 years of age or older who is not a resident.
7. "Essential services" means social, medical, psychiatric, or legal services necessary to safeguard the disabled adult's or elder person's rights and resources and to maintain the physical and mental well-being of such person. These services shall include, but not be limited to, the provision of medical care for physical and mental health needs, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, and protection from health and safety hazards but shall not include the taking into physical custody of a disabled adult or elder person without that person's consent.
8. "Exploitation" means the illegal or improper use of a disabled adult or elder person or that person's resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense, or other similar means for one's own or another's profit or advantage.
9. "Fiduciary" shall have the same meaning as set forth in Code Section 7-1-4.
10. "Financial institution" shall have the same meaning as set forth in Code Section 7-1-4.
11. "Investment company" means an individual or a corporation, a partnership, a limited liability corporation, a joint-stock company, a trust, a fund, or any organized group of persons whether incorporated that:
    1. Is engaged or proposes to engage in the business of effecting transactions in securities;
    2. Is engaged or proposes to engage in the business of issuing securities, or has been engaged in such business and has any certificates outstanding; or
    3. Is engaged or holds itself out to be in the business of advising others, either directly or through publications or writings, as to the value of securities or the advisability of investing in, purchasing, or selling securities or that, for compensation and as a part of a regular business, issues or promulgates analysis or reports concerning securities.
12. "Long-term care facility" shall have the same meaning as set forth in Code Section 31-8-81.
13. "Mentally or physically incapacitated" means an impairment which substantially affects an individual's ability to:
    1. Provide personal protection;
    2. Provide necessities, including but not limited to food, shelter, clothing, medical, or other health care;
    3. Carry out the activities of daily living; or
    4. Manage his or her resources.
14. "Neglect" means the absence or omission of essential services to the degree that it harms or threatens with harm the physical or emotional health of a disabled adult or elder person.
15. "Protective services" means services necessary to protect a disabled adult or elder person from abuse, neglect, or exploitation. Such services shall include, but not be limited to, evaluation of the need for services and mobilization of essential services on behalf of a disabled adult or elder person.
16. "Resident" shall have the same meaning as set forth in Code Section 31-8-81.
17. "Security" shall have the same meaning as set forth in Code Section 10-5-2.
18. "Sexual abuse" means the coercion for the purpose of self-gratification by a guardian or other person supervising the welfare or having immediate charge, control, or custody of a disabled adult or elder person to engage in any of the following conduct:
    1. Lewd exhibition of the genitals or pubic area of any person;
    2. Flagellation or torture by or upon a person who is unclothed or partially unclothed;
    3. Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is unclothed or partially clothed unless physical restraint is medically indicated;
    4. Physical contact in an act of sexual stimulation or gratification with any person's unclothed genitals, pubic area, or buttocks or with a female's nude breasts;
    5. Defecation or urination for the purpose of sexual stimulation of the viewer; or
    6. Penetration of the vagina or rectum by any object except when done as part of a recognized medical or nursing procedure.

(Ga. L. 1981, p. 1320, § 3; Ga. L. 1997, p. 700, § 2; Ga. L. 2000, p. 136, § 30; Ga. L. 2005, p. 509, § 6/HB 394; Ga. L. 2007, p. 219, § 1/HB 233; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2009, p. 725, § 1/HB 457; Ga. L. 2013, p. 524, § 1-5/HB 78; Ga. L. 2015, p. 598, § 1-6/HB 72; Ga. L. 2018, p. 602, § 1/HB 635.)

The 2018 amendment, effective July 1, 2018, added paragraph (1.1).

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 63 (2015).

JUDICIAL DECISIONS

Evidence sufficient for conviction.

- Evidence was sufficient to support the defendant's convictions for unlawful abuse, neglect, or exploitation of an elder person and unauthorized practice of law, in violation of O.C.G.A. §§ 15-19-51(a)(7) and30-5-8(a)(1), because the defendant befriended an 89-year-old widower, falsified identification as an attorney, and eventually obtained the widower's car, jewelry, use of the widower's credit cards for unauthorized purposes, and the defendant also forged documents and coerced the widower into changing other documents regarding the widower's estate; the widower was within the definition of "elder person" under O.C.G.A. § 30-5-3(7.1) (now paragraph (6)), and the acts were within the definition of "exploitation" pursuant to § 30-5-3(9) (now paragraph (8)). Marks v. State, 280 Ga. 70, 623 S.E.2d 504 (2005).

Sufficient evidence supported the appellant's convictions on two counts of exploitation of elder person, two counts of theft by taking, and 11 counts of financial-transaction-card fraud based on at least circumstantial evidence that the appellant's mother did not authorize the appellant's near total depletion of various financial accounts by transfers to the appellant's account, ATM withdrawals, money sent to another country, and buying online merchandise, furniture, and jewelry. Anderson v. State, 350 Ga. App. 369, 829 S.E.2d 453 (2019).

- In a wrongful death action filed by a decedent-lessee's administrator in which the decedent was killed when crossing a public highway that the lessor did not control, the lessor was properly granted summary judgment, as the administrator failed to show that the lessor was negligent per se, violated O.C.G.A. § 30-5-8, or that the lessor breached either a common law or private duty owed to the lessee. Walton v. UCC X, Inc., 282 Ga. App. 847, 640 S.E.2d 325 (2006).

Construction of O.C.G.A. § 30-5-8. - Trial court erred when the court denied the defendant's motion to quash the count of an indictment charging the defendant with exploitation of a disabled adult in violation of the Disabled Adults and Elder Persons Protection Act, O.C.G.A. § 30-5-1 et seq., because the legislature did not intend for O.C.G.A. § 30-5-8(a) to apply to sexual acts such as that alleged in the indictment; the most reasonable construction of § 30-5-8(a) is that the legislature did not intend for the statute to apply to sexual acts because the legislature intended for § 30-5-8 to apply only to specifically defined non-sexual acts, and the statute gradually increased the penalties for these non-sexual acts in response to a perceived need to protect disabled persons from "abuse," "neglect," and "exploitation" as defined by the Act, specifically O.C.G.A. § 30-5-3. Smith v. State, 311 Ga. App. 757, 717 S.E.2d 280 (2011).

- Creditor did not qualify as an elder person after the creditor testified that the creditor was sixty-eight years old at the time of trial; therefore, at the time the loan was procured, in March of 2006, the creditor was sixty-four years of age. Under the definition section of the Disabled Adults and Elder Persons Protection Act, O.C.G.A. § 30-5-1 et seq., an elder person is defined as a person sixty-five years of age or older under O.C.G.A. § 30-5-3(7.1) (now paragraph (6)). Thompson v. Hornyak (In re Hornyak), Bankr. (Bankr. N.D. Ga. Apr. 1, 2010).

- Trial court did not err when the court denied the defendant's motion to quash the count of an indictment charging the defendant with exploitation of a disabled adult in violation of the Disabled Adults and Elder Persons Protection Act, O.C.G.A. § 30-5-1 et seq., on the ground that the victim was not "disabled" because the victim read at a first- or second-grade level, did not understand monetary denominations, could not do personal care on a daily basis, and had an IQ of 30, which was well below the borderline of mental retardation. Smith v. State, 311 Ga. App. 757, 717 S.E.2d 280 (2011).