2013 Hawaii Revised Statutes
TITLE 20. SOCIAL SERVICES
346. Department of Human Services
346-222 Definitions.

Note

Part heading amended by L 2008, c 154, §1.

Cross References

Dependent elder abuse; suits by the State; civil penalties, see §28-94.

Maximum fee for appointed counsel and guardian ad litem, see §571-87.

Law Journals and Reviews

Elder Law Hawaii. 13 HBJ 85 (2009).

Holding Hawai‘i Nursing Facilities Accountable for the Inadequate Pain Management of Elderly Residents. 27 UH L. Rev. 233 (2004).

§346-222 Definitions. For the purposes of this part:

"Abuse" means any of the following, separately or in combination:

(1) Physical abuse;

(2) Psychological abuse;

(3) Sexual abuse;

(4) Financial exploitation;

(5) Caregiver neglect; or

(6) Self-neglect;

each as further defined in this chapter. Abuse does not include, and a determination of abuse shall not be based solely on, physical, psychological, or financial conditions that result when a vulnerable adult seeks, or when a caregiver provides or permits to be provided, treatment with the express consent of the vulnerable adult or in accordance with the vulnerable adult's religious or spiritual practices.

"Capacity" means the ability to understand and appreciate the nature and consequences of making decisions concerning one's person or to communicate these decisions.

"Caregiver" means any person who has knowingly and willingly assumed, on a part-time or full-time basis, the care, supervision, or physical control of, or who has a legal or contractual duty to care for the health, safety, and welfare of a vulnerable adult.

"Caregiver neglect" means the failure of a caregiver to exercise that degree of care for a vulnerable adult that a reasonable person with the responsibility of a caregiver would exercise within the scope of the caregiver's assumed, legal or contractual duties, including but not limited to the failure to:

(1) Assist with personal hygiene;

(2) Protect the vulnerable adult from abandonment;

(3) Provide, in a timely manner, necessary food, shelter, or clothing;

(4) Provide, in a timely manner, necessary health care, access to health care, prescribed medication, psychological care, physical care, or supervision;

(5) Protect the vulnerable adult from dangerous, harmful, or detrimental drugs, as defined in section 712-1240; provided that this paragraph shall not apply to drugs that are provided to the vulnerable adult pursuant to the direction or prescription of a practitioner, as defined in section 712-1240;

(6) Protect the vulnerable adult from health and safety hazards; or

(7) Protect the vulnerable adult from abuse by third parties.

"Court" means the family court.

"Department" means the department of human services and its authorized representatives.

"Director" means the director of human services.

"Emergency medical treatment" means any service necessary to maintain a person's physical health and without which there is a reasonable belief that the person will suffer irreparable harm or death.

"Financial exploitation" means the wrongful taking, withholding, appropriation, or use of a vulnerable adult's money, real property, or personal property, including but not limited to:

(1) The breach of a fiduciary duty, such as the misuse of a power of attorney or the misuse of guardianship privileges, resulting in the unauthorized appropriation, sale, or transfer of property;

(2) The unauthorized taking of personal assets;

(3) The misappropriation or misuse of moneys belonging to the vulnerable adult from a personal or joint account; or

(4) The failure to effectively use a vulnerable adult's income and assets for the necessities required for the vulnerable adult's support and maintenance, by a person with a duty to expend income and assets on behalf of the vulnerable adult for such purposes.

Financial exploitation may be accomplished through coercion, manipulation, threats, intimidation, misrepresentation, or exertion of undue influence.

"Party" means those persons, care organizations, or care facilities entitled to notice of proceedings under sections 346-237 and 346-238, including any state department or agency that is providing services and treatment to a vulnerable adult in accordance with a protective services plan.

"Physical abuse" means:

(1) The nonaccidental infliction of physical or bodily injury, pain, or impairment, including but not limited to hitting, slapping, causing burns or bruises, poisoning, or improper physical restraint; or

(2) Causing physical injuries that are not justifiably explained or where the history given for an injury is at variance with the degree or type of injury.

"Protective services plan" means a specific written plan, prepared by the department, that sets forth the specific services and treatment to be provided to a vulnerable adult.

"Psychological abuse" means the infliction of mental or emotional distress by use of threats, insults, harassment, humiliation, provocation, intimidation, or other means that profoundly confuse or frighten a vulnerable adult.

"Self-neglect" means:

(1) A vulnerable adult's inability or failure, due to physical or mental impairment, or both, to perform tasks essential to caring for oneself, including but not limited to:

(A) Obtaining essential food, clothing, shelter, and medical care;

(B) Obtaining goods and services reasonably necessary to maintain minimum standards of physical health, mental health, emotional well-being, and general safety; or

(C) Management of one's financial assets and obligations to accomplish the activities in subparagraphs (A) and (B); and

(2) The vulnerable adult appears to lack sufficient understanding or capacity to make or communicate responsible decisions and appears to be exposed to a situation or condition that poses an immediate risk of death or serious physical harm.

"Sexual abuse" means nonconsensual sexual contact or conduct caused by another person, including but not limited to:

(1) Sexual assault, molestation, sexual fondling, incest, or prostitution; or

(2) Pornographic photographing, filming, or depiction.

"Vulnerable adult" means a person eighteen years of age or older who, because of mental, developmental, or physical impairment, is unable to:

(1) Communicate or make responsible decisions to manage the person's own care or resources;

(2) Carry out or arrange for essential activities of daily living; or

(3) Protect oneself from abuse, as defined in this part. [L 1989, c 381, pt of §1; am L 1990, c 144, §1 and c 234, §1; am L 2008, c 154, §4]