RELATING TO POWERS OF ATTORNEY.

SB595

THE SENATE

S.B. NO.

595

THIRTY-THIRD LEGISLATURE, 2025

STATE OF HAWAII

A BILL FOR AN ACT

relating
to powers of attorney
.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

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SECTION 1.
�
The
legislature finds that individuals with cognitive impairments are particularly
vulnerable to undue influence and coercion.
�

The legislature also finds that the transfer of powers of attorney,
including durable, general, and financial powers of attorney, for individuals
with cognitive deficits, when not accompanied by proper safeguards, may lead to
financial exploitation and other forms of abuse.

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Accordingly, the purpose of this Act is to establish
additional protections for individuals diagnosed with cognitive deficits from
unauthorized or unjust revocations of or changes to agents under their power of
attorney.

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SECTION 2.
�

The Hawaii Revised Statutes is amended by adding a new chapter to be
appropriately designated and to read as follows:

"
Chapter

Protection of
individuals with cognitive def
icits from unauthorized or unjust changes to their Power of attorney

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�
-1
�
Definitions.
�

As
used in this chapter:

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"Agent"
has the same meaning as defined in section 551E-1.

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"A
dult protective
services" means the adult protective and community services branch of the
social services division of the department of human services.

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"Advanced
health care directive" has the same meaning as

defined in
section 327E-2.

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"Advance mental health care directive"
has the same meaning as defined in section 327G-2.

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"Change to a power of attorney"
occurs when the principal:

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(1)
�
Revokes
the power of attorney;

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(2)
�
Revokes
the authority of an agent, co-agent, or successor agent under the power of
attorney;

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(3)
�
Modifies
the authority given to an agent, co-agent, or successor agent under the power
of attorney; or

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(4)
�
Designates
a new agent, co-agent, or successor agent under the power of attorney.

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"Cognitive
deficit" means a condition characterized by impairment in memory,
reasoning, or other mental abilities that significantly affects an individual's
ability to make informed decisions.

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"Durable
power of attorney" means a power of attorney that is not terminated by the
principal's incapacity.

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"Good
standing" means an agent of a power of attorney who has acted responsibly,
ethically, and in the best interests of the principal, with no evidence of
negligence, malfeasance, or misconduct.

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"Financial
power of attorney" means a
power of attorney
that grants the agent authority to make
financial decisions on behalf of the principal, including managing bank
accounts, paying bills, and handling investments or property.

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"Power
of attorney" means a writing or other record that grants an agent the
authority to act on behalf of the principal
for legal,
financial, personal, and health care related matters,

regardless of
whether the term "power of
attorney" is used.
�
"Power of
attorney" includes advance health-care directives and advance mental
health care directives.
�
A power of
attorney is a durable power of attorney unless it expressly provides that it is
terminated by the incapacity of the principal.

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"Principal"
has the same meaning as defined in section 551E-1.

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"
Qualified h
ealth care professional" means a
physician, neuropsychologist, or geriatric certified professional licensed,
accredited, or certified to assess cognitive function under state law.

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�
-2
�
Changes to p
ower of attorney
; principal diagnosed with cognitive deficits
;
validity
.
�
No
change to a power
of attorney
of
a principal who is
diagnosed with cognitive deficits
shall be
valid unless
completed in compliance with the provisions of this chapter
.

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�
-3
�
Comprehensive c
ognitive assessment;
certification
.
�

(a)
�
Any
principal
diagnosed with cognitive deficits who
seek
s
to
change the
individual's
power
of attorney shall undergo a comprehensive cognitive assessment by a qualified
health care professional.
�
The
comprehensive cognitive assessment shall be
initiated
upon the
principal's
request
to change the
power of attorney
.

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(b)
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The qualified health care professional shall
:

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(1)
�
Assess

the
principal's
cognitive capacity, including whether the principal has:

���������
(A)
�
The
capacity to
u
nderstand the implications of the
change to
the
principal's
power of attorney
;
and

���������
(B)
�
The a
bility to voluntarily execute the
change; and

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(2)
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Submit a written certification that either confirms or
denies the principal's cognitive capacity and ability required under paragraph
(1) to:

���������
(A)
�
The
principal; and

���������
(B)
�
Adult
protective services.

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(c)
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If
the
certificate submitted by the qualified health care professional
denies the principal's cognitive capacity and ability pursuant to subsection
(b)(1),
the existing power of attorney shall
remain in effect until a court
of competent jurisdiction
determines that the
proposed change
shall take effect in the
interests
of justice.

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-4
�
Written notice; affidavit in support
.
�
(a)
�
A
ny person
initiating a change
to a
power of attorney
of a principal
diagnosed with cognitive deficits shall:

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(1)
�
Give a written notice explaining the proposed
change to:

���������
(A)
�
The principal;

���������
(B)
�
The existing agent;

���������
(C)
�
Any f
amily
member of the principal
who may be affected by the proposed revocation or
change
;

���������
(D)
�
Any l
eg
al
guardian of the principal; and

���������
(E)
�
Any other
person, including
financial institutions and entities, who may be affected by the
proposed
revocation or
change
; and

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(2)
�
Within

fifteen days of
initiating the
revocation or
change
, submit to adult
protective services an affidavit in support of the proposed revocation or
change, which shall include a detailed explanation of:

���������
(A)
�
The revocation or change;

���������
(
B
)
�
The
specific circumstances necessitating the
proposed
revocation or
change
, including a
ny financial, medical, or personal
reasons justifying the change
or revocation
;

���������
(
C
)
�
The
current mental, physical, and cognitive status
of the principal
;

���������
(
D
)
�
T
he relationship between the principal and
the proposed new agent
, co-agent, or successor agent, as applicable; and

���������
(E)
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Documentation
evidencing that written notice to all necessary persons has been given pursuant
to paragraph (1).

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(b)
�
Failure
to
submit
an
affidavit in
compliance with subsection (a)(2), including provision of an adequate
explanation supporting the proposed change to the power of attorney,
shall void
the
proposed
change
.

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-5
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Effective date of change; mandatory waiting period; notice.
�
(a)
�
Except for an emergency change to a power of
attorney granted pursuant to section -6, any change to a
power of attorney of a principal diagnosed with cognitive deficits shall not
take effect until thirty days after adult protective services confirms in
writing, its receipt of:

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(1)
�
A
certificate from the qualifying health care professional confirming the
principal's cognitive capacity and ability pursuant to section -3(b);
and

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(2)
�
An
affidavit from the person initiating the change in compliance with section -4(b).

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(b)
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Adult protective services shall, upon receipt
of the information required in subsection (a), provide the principal and any
person initiating the change to the power of attorney with a written notice:

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(1)
�
Confirming
receipt of the required information and that the proposed change to the
principal's power of attorney shall take effect after the mandatory waiting
period under subsection (a); or

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(2)
�
I
f the
certificate
submitted by the qualified health care professional denies the principal's
cognitive capacity and ability pursuant to section
-3(b), or the affidavit submitted pursuant to
section
�
-4(b) fails to
include the necessary information, that the proposed change to the principal's
power of attorney is invalid or delayed pending investigation by adult
protective services
.

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�
-6
�
Emergency change to power of attorney; principals in imminent danger; court
order; investigation.
�
(a)
�
If a principal
diagnosed with cognitive deficits is in imminent danger warranting an immediate
change to the individuals' power of attorney, the principal or the principal's
designee may petition a court of competent jurisdiction for an order allowing
an emergency change to the power of attorney, accompanied by supporting
documentation outlining the urgent circumstances warranting the change.

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(b)
�

A petition for an emergency change filed pursuant to subsection (a)
shall be granted or denied within seventy-two hours of the filing of the
petition; provided that if granted, the emergency change shall take effect
immediately upon its issuance and terminate on the thirtieth day thereafter,
unless made permanent pursuant to subsection (c).

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(c)
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Within thirty days of an order granting an
emergency change to a power of attorney pursuant to subsection (b), the issuing
court shall investigate

whether the
emergency
change is in the best interests of the
principal and determine
if it should be made permanent

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-7
�
Agent of a principal diagnosed with cognitive
deficits; investigations; interviews; safeguards; procedure
.
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(a)
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A principal
diagnosed with cognitive deficits or a person attempting to replace an existing
agent with a new agent shall request adult protective services for an
investigation to determine whether the existing agent is in good standing.
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The investigation shall include a review of
the existing agent's actions, financial management, and health care decisions taken
or made on behalf of the principal.

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If the existing agent is found to be in
good standing, the agent shall not be removed without proper cause or
justification and any attempts to replace the agent shall be deemed
invalid.
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If the investigation finds that
the existing agent has engaged in misconduct or has been negligent in the
performance of the agent's duties, the existing agent shall be subject to
immediate removal.

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(b)
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In the event of a dispute between an existing agent in good standing and
a prospective agent, the existing agent shall initiate a formal mediation or any
other dispute resolution process with adult protective services to resolve the
conflict and determine the best course of action for the principal diagnosed
with cognitive deficits.

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(c)
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Adult
protective services shall conduct annual interviews with each agent of a principal
diagnosed with cognitive deficits to ensure that the agent is acting in the
best interests of the principal.

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(d)
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Any attempt to change a power of attorney of a principal diagnosed with
cognitive deficits shall be accompanied by clear evidence that the principal is
making the decision freely and without coercion.
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If allegations that the principal is being
manipulated and is not capable of understanding the implications of the change
to the power of attorney arise, the change shall be invalid pending a review by
adult protective services.
�
In cases
where a principal's cognitive capacity is in question, a court of competent
jurisdiction may require ongoing medical evaluations to ensure the principal's
understanding of decisions related to the power of attorney.

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(e)
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A court of competent jurisdiction may appoint a guardian ad litem or
other legal representative to advocate on behalf of the principal during a
proceeding.

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�
-8
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Civil actions for damages
.
�
(a)
�
A
person who alleges a violation of this chapter may bring a civil action for
actual damages.
�
As used in this
subsection, "damages" means damages for any injury or loss caused by
each violation of this chapter, including reasonable attorney fees.

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(b)
�

An action commenced pursuant to subsection (a) may be brought in the
circuit court for the circuit where the alleged violation occurred, where the
complainant resides, or where the person against whom the civil complaint is
filed resides or has a principal place of business.

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-9
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Coercion or undue influence to create or
change a power of attorney for an individual diagnosed with cognitive deficits;
penalty
.
�
(a)
�
No person shall coerce or manipulate through
undue influence a person diagnosed with cognitive deficits to create or change
a power of attorney.

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(b)
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Any person convicted of violating this section shall be sentenced as
follows:

����
(1)
�
A
term of imprisonment of not less than ninety days; and

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(2)
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A
fine of not more than $10,000.

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�
-10
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Enforcement
.
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Adult protective services shall enforce this
chapter and shall:

����
(1)
�
Oversee
investigations into the conduct of current and prospective agents for individuals
diagnosed with cognitive deficits;

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(2)
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Ensure
compliance with the waiting period, affidavit and written notification requirements;

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(3)
�
Review
disputes and mediate conflicts relating to changes to a power of attorney for
principles diagnosed with cognitive deficits;

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(4)
�
Conduct
annual interviews of agents of principles diagnosed with cognitive deficits to
ensure ongoing protection of the principal; and

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(5)
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Enforce
penalties under this chapter.

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-11
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Severability
.
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If any provision of this chapter or the
application thereof to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of the chapter
which can be given effect without the invalid provision or application, and to
this end the provisions of this chapter are severable."

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SECTION 3.
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This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

Report Title:

DHS; Adult Protective and Community Services Branch;
Courts;
Power of
Attorney; Cognitive Deficit; Revocation; Change of Agent; Investigation;
Remedies; Penalties

Description:

Establishes additional requirements to revoke or make
changes relating to agents under powers of attorney of principals diagnosed
with cognitive deficits.
�
Requires submittals
to the Adult Protective and Community Service Branch of the Department of Human
Services.
�
Requires the Branch to issue a
notice of receipt to the principal and any person initiating the change.
�
Establishes a mandatory waiting period before
any proposed change takes effect.
�

Establishes an expedited process for a court order granting an emergency
change to a power of attorney.

The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.