(a) As used in this section, unless the context otherwise requires:
Terms Used In Tennessee Code 71-6-120. Right of elderly person or disabled adult to recover for abuse or neglect, sexual abuse, exploitation, or theft
- Abuse or neglect: means the infliction of physical pain, injury, or mental anguish, or the deprivation of services by a caretaker that are necessary to maintain the health and welfare of an adult or a situation in which an adult is unable to provide or obtain the services that are necessary to maintain that person's health or welfare. See
- Adult: means a person eighteen (18) years of age or older who because of mental or physical dysfunctioning or advanced age is unable to manage such person's own resources, carry out the activities of daily living, or protect such person from neglect, hazardous or abusive situations without assistance from others and who has no available, willing, and responsibly able person for assistance and who may be in need of protective services. See
- Capacity to consent: means the mental ability to make a rational decision, which includes the ability to perceive, appreciate all relevant facts and to reach a rational judgment upon such facts. See
- Code: includes the Tennessee Code and all amendments and revisions to the code and all additions and supplements to the code. See Tennessee Code 1-3-105
- common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Department: means the department of human services. See
- evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Exploitation: means the improper use by a caretaker of funds that have been paid by a governmental agency to an adult or to the caretaker for the use or care of the adult. See
- fraud: Intentional deception resulting in injury to another.
- jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
- Personal representative: when applied to those who represent a decedent, includes executors and administrators, unless the context implies heirs and distributees. See Tennessee Code 1-3-105
- Property: includes both personal and real property. See Tennessee Code 1-3-105
- Representative: when applied to those who represent a decedent, includes executors and administrators, unless the context implies heirs and distributees. See Tennessee Code 1-3-105
- State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
- United States: includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
(1) “Capacity to consent” means the mental ability to make a rational decision, which includes the ability to perceive, appreciate all relevant facts and to reach a rational judgment upon such facts; or to make and carry out reasonable decisions concerning the person or the person’s resources; or to protect the person from neglect, or hazardous or abusive situations without assistance;
(2) “Disabled adult” means a person who is eighteen (18) years of age or older and who meets one (1) of the following:
(A) Has some impairment of body or mind that makes the person unfit to work at any substantially remunerative employment;
(B) Lacks the capacity to consent;
(C) Has been certified as permanently and totally disabled by an agency of this state or the United States that has the function of so classifying persons; or
(D) Has been found to be incompetent by a court of proper jurisdiction; and
(3) “Elderly person” or “elder” means a person who is sixty (60) years of age or older who has some mental or physical dysfunctioning, including any resulting from age.
(b) In addition to other remedies provided by law, an elderly person or disabled adult in that person’s own right, or by conservator or next friend, shall have a right of recovery in a civil action for compensatory damages for abuse or neglect, sexual abuse or exploitation as defined in this part or for theft of such person’s or adult’s money or property whether by fraud, deceit, coercion or otherwise. Such right of action against a wrongdoer shall not abate or be extinguished by the death of the elderly person or disabled adult, but shall pass as provided in § Code Sec. 20-5-106″>20-5-106, unless the alleged wrongdoer is a family member, in which case the cause of action shall pass to the victim’s personal representative.
(c) Jurisdiction for such action shall be in the circuit or chancery court where the elderly person or disabled adult may reside or where the actions occurred.
(d) Damages shall include compensatory damages and costs where it is proven that a defendant is liable for abuse or neglect, sexual abuse or exploitation as defined in this part or for theft of such elderly person’s or disabled adult’s money or property whether by fraud, deceit, coercion or otherwise. Costs shall include reasonable expenses. In addition, if it is proven upon clear and convincing evidence that abuse or neglect, sexual abuse or exploitation or theft resulted from intentional, fraudulent or malicious conduct by the defendant, a claimant shall be entitled to recover reasonable attorneys’ fees. As part of any judgment, the court may declare void and unenforceable any marriage proven to have been entered into as part of a scheme to commit abuse or neglect, sexual abuse or exploitation as defined in this part or theft of such elderly person’s or disabled adult’s money or property whether by fraud, deceit, coercion or otherwise.
(e) In addition to the damages described in (d), a defendant may also be found liable for punitive damages in accordance with applicable common law standards.
(f) Nothing in this section shall be construed as requiring the department of human services to initiate any proceedings pursuant to this section or to act on behalf of any elderly person or disabled adult subject to this section.
(h) A financial institution, officer, director, or employee of a financial institution, shall not be liable in any civil action brought by or on behalf of a disabled adult or elderly person for recovery of damages under this chapter, unless prior to such civil action, the financial institution, officer, director, or employee of a financial institution, shall have been convicted of a violation of § 71-6-117; provided, however, that this provision shall not apply to theft or conversion by an employee, officer or director of a financial institution or liability arising under other provisions of law.
[Acts 1999, ch. 247, § 1; 2000, ch. 768, §§ 1-3; 2004, ch. 780, § 5.]