LRB-4159/1
CMH/RPN/ARG:cjs:jf
2009 - 2010 LEGISLATURE
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
1An Act to amend 757.69 (1) (j), 813.06, 814.61 (1) (a) and (b), 814.70 (1) and
2814.70 (3) (intro.); and
to create 46.90 (5g), 55.043 (1t), 801.50 (5u), 813.124
3and 814.61 (1) (dm) of the statutes;
relating to: requiring certain county
4agencies to petition a court to freeze accounts of certain individuals being
5financially 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
1Section
1. 46.90 (5g) of the statutes is created to read:
AB691,2,82
46.90
(5g) Response to financial exploitation. An elder-adult-at-risk
3agency shall, in response to an investigation under sub. (5) that indicated that an
4elder adult at risk is the subject of financial exploitation, file a petition under s.
5813.124 (2) to request a court to order a financial institution, as defined in s. 705.01
6(3), to refuse any transfers and withdrawals from any account the elder adult at risk
7holds, individually or jointly, at the financial institution. The petition shall comply
8with all requirements under s. 813.124 (2) (b).
AB691, s. 2
9Section
2. 55.043 (1t) of the statutes is created to read:
AB691,3,210
55.043
(1t) Response to financial exploitation. An adult-at-risk agency
11shall, in response to an investigation under sub. (1r) that indicated that an adult at
12risk is the subject of financial exploitation, file a petition under s. 813.124 (2) to
13request a court to order a financial institution, as defined in s. 705.01 (3), to refuse
14any transfers and withdrawals from any account the adult at risk holds, individually
1or jointly, at the financial institution. The petition shall comply with all
2requirements under s. 813.124 (2) (b).
AB691, s. 3
3Section
3. 757.69 (1) (j) of the statutes is amended to read:
AB691,3,54
757.69
(1) (j) Hold hearings, make findings and issue temporary restraining
5orders under s. 813.122
or, 813.123
, or 813.124.
AB691, s. 4
6Section
4. 801.50 (5u) of the statutes is created to read:
AB691,3,87
801.50
(5u) Venue of an action under s. 813.124 shall be in the county in which
8the cause of action arose or in which the petitioning agency is located.
AB691, s. 5
9Section
5. 813.06 of the statutes is amended to read:
AB691,3,18
10813.06 Security for damages. In proceedings under s. 767.225 the court or
11judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122,
12813.124, 813.125
, and 823.113 the court or judge shall, require a bond of the party
13seeking an injunction, with sureties, to the effect that he or she will pay to the party
14enjoined such damages, not exceeding an amount to be specified, as he or she may
15sustain by reason of the injunction if the court finally decides that the party was not
16entitled thereto. Copies of
such the bond, affidavit
, or other pleading shall be served
17upon the party enjoined and the officer serving the same shall, within 8 days after
18such service, file his or her return in the office of the clerk of the court.
AB691, s. 6
19Section
6. 813.124 of the statutes is created to read:
AB691,3,21
20813.124 Account injunctions for individuals at risk. (1) D
efinitions. In
21this section:
AB691,3,2422
(a) "Account" means a contract of deposit of funds between a depositor and a
23financial institution, and includes a checking or savings account, certificate of
24deposit, share account, and other like arrangement.
AB691,3,2525
(am) "Adult at risk" has the meaning given in s. 55.01 (1e).
AB691,4,1
1(b) "Adult-at-risk agency" has the meaning given in s. 55.01 (1f).
AB691,4,22
(c) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).
AB691,4,33
(d) "Elder-adult-at-risk agency" has the meaning given in s. 46.90 (1) (bt).
AB691,4,44
(dm) "Financial institution" has the meaning given in s. 705.01 (3).
AB691,4,55
(e) "Financial exploitation" has the meaning given in s. 46.90 (1) (ed).
AB691,4,66
(f) "Individual at risk" means an elder adult at risk or an adult at risk.
AB691,4,87
(g) "Individual-at-risk agency" means an adult-at-risk agency or an
8elder-adult-at-risk agency.
AB691,4,10
9(2) Petition. (a) An action under this section may be commenced only by a
10petition filed by an individual-at-risk agency.
AB691,4,1111
(b) The petition shall allege facts sufficient to show the following:
AB691,4,1212
1. The name of the individual at risk.
AB691,4,1513
2. a. If the individual at risk named under subd. 1. is an elder adult at risk, that
14a report of financial exploitation against the individual at risk under s. 46.90 (5) has
15been investigated and confirmed.
AB691,4,1816
b. If the individual at risk named under subd. 1. is an adult at risk, that a report
17of financial exploitation against the individual at risk under s. 55.043 (1r) has been
18investigated and confirmed.
AB691,4,2019
3. The financial institution at which the financial exploitation has occurred or
20is likely to occur and the accounts that may be affected.
AB691,4,2221
4. The name of the person who has conducted or is likely to conduct the financial
22exploitation.
AB691,5,5
23(3) General procedure. Procedure for an action under this section is in 2 parts.
24First, the court or circuit court commissioner shall issue or refuse to issue a
25temporary restraining order. Second, the court shall hold a hearing under sub. (5)
1on whether to issue an injunction, which is the final relief. If the court or circuit court
2commissioner issues a temporary restraining order, the order shall set forth the date
3for the hearing on an injunction. If the court or circuit court commissioner does not
4issue a temporary restraining order, the date for the hearing shall be set upon motion
5by either party.
AB691,5,8
6(4) Temporary restraining order. (a) A judge or circuit court commissioner
7shall issue a temporary restraining order, as specified in par. (b), if all of the following
8occur:
AB691,5,109
1. The petitioner submits to the judge or circuit court commissioner a petition
10alleging the elements set forth under sub. (2) (b).
AB691,5,1211
2. The judge or circuit court commissioner finds reasonable grounds to believe
12any of the following:
AB691,5,1513
a. That the individual at risk has been the subject of financial exploitation and
14that an account at the financial institution identified under sub. (2) (b) 3. has been
15used to aid the financial exploitation of the individual at risk.
AB691,5,1916
b. That the the individual at risk is likely to be the subject of financial
17exploitation conducted by the person named under sub. (2) (b) 4. and that an account
18at the financial institution identified under sub. (2) (b) 3. is likely to be used to aid
19the financial exploitation of the individual at risk.
AB691,5,2420
(b) A temporary restraining order issued under par. (a) shall order the financial
21institution identified under sub. (2) (b) 3. to refuse transfers or withdrawals from any
22account the individual at risk holds, individually or jointly, at the financial
23institution. In the order the judge may, as he or she determines is appropriate, order
24the refusal to be of any of the following:
AB691,5,2525
1. All transfers and withdrawals from the account.
AB691,6,1
12. Any withdrawal by a specified person.
AB691,6,32
3. All transfers and withdrawals with specified exceptions for regular transfers
3or withdrawals.
