"Reciprocal Beneficiary" Laws in Hawaii with Commentary from The Hawaii Legislative Reference Bureau

    What follows this introduction is a miniature law book, nearly 200 pages long, which covers all of the laws which directly mention or refer to couples united under the reciprocal beneficiary laws of the State of Hawai>i.

    Note: this introduction simply gives some explanations which help explain the format of the laws. For an introduction, summary, and commentary on the rights and benefits recognized for couples united under these laws, click here.

    Laws which are passed by the Hawai>i legislature are called Statutes. They were organized and put into categories many years ago. The order and categories were rearranged from time to time, and finally in the 1960s the whole bundle was rearranged again and given the name of AThe Hawai>i Revised Statutes@ or HRS.

    In this introduction we=ll simply refer to the Chapters and Sections of the laws by number. Lawyers would, on the other hand, refer to a Chapter or Section number by always following it with the term AHRS@ to show more precisely what they were talking about (e.g., ASection 572C-1, HRS,@ or AChapter 572C, HRS@).

    Not counting its index or separate annotations (commentaries), the HRS is organized into 14 volumes totaling thousands of pages. Within that mass the actual laws are categorized into 38 broad segments called ATitles.@ The names or numbers of the volumes and Titles are not usually used in legal research, however, because the individual laws go by a different numbering system.

    On the other hand, the volumes and Titles are sometimes useful because they give a broad outline to the organization of the HRS. For example, when the basic reciprocal beneficiary laws were passed in 1997, it was decided to place them within Title 31 (AFamily@). This is a piece of evidence which helps suggest that the legislature, while not acknowledging full certified marriage rights to same-gender couples, were nevertheless acknowledging the couples= relationships and certifying the existence of their families.

    Below the level of the Titles is a separate numbering system of groups of laws called Chapters. These run from Chapter 1 (ACommon Law; Construction of Laws@) through Chapter 853 (ACriminal Procedure: Deferred Acceptance of Guilty Plea, Nolo Contendere Plea@). Originally there were blanks included within this numbering system, to allow for new Chapters to be inserted. Many of these blanks still exist.

    However, many new Chapters were passed over the years which fell into narrow segments of the numbering system, and a good many of these new Chapters were given intermediary numbers as they were placed between older consecutive Chapters. Hence we have the new Chapters Chapter 572C (AReciprocal Beneficiaries@) and Chapter 572D (AUniform Premarital Agreement Act@), inserted between the older Chapter 572 (AMarriage@) and Chapter 573 (AMarried Women@), the latter Chapter so antiquated that it has been repealed.

    Chapters are the backbone of the HRS. Specialized words are rarely defined through all of the HRS or even for large areas of it. Instead, many Chapters contain their own set of definitions for terms, which differ Chapter to Chapter. Likewise, laws within a Chapter often refer to one another and must be interpreted within the context of the Chapter.

    Finally, the chapter number is attached to each and every individual law within it. For example, the core laws which established reciprocal-beneficiary rights are contained in Chapter 572C. These laws, in turn, are given the numbers Section 572C-1, Section 572C-2, Section 572C-3, etc. Essentially all laws within the HRS have numbers like this, making it clear what Chapter they fall within. This helps with understanding the context of any law, and also where to find it in the law books.

    In reading the individual laws given below, it is therefore important to always recognize the chapter title and subject matter that each law falls within.

    Some Chapters are subdivided into Parts (Part I, Part II, etc.). This numbering system isn=t applied to the individual laws and exists just for information. In some cases, however, knowing the Part=s name can help set the context of the laws that fall within it.

    As stated, each of the individual laws of the HRS are called Sections. They can run from one sentence to several pages long. They contain a descriptive title (sometimes very long) followed by text which is sometimes divided into several sub-sections that are, in turn, sometimes further subdivided.

    When referring to just one sub-section, the numbers are strung together. For example, Chapter 88 (APension and Retirement Systems@ for public employees) has one of its laws numbered as Section 88-286 (ADeath Benefit@). That law is broken down to include various sub-sections, including Sub-Section 88-286(c), which deals with the deaths of employees caused by accident. That Sub-Section is further broken down, and one of its sub-sections is Sub-Section 88-286(c)(2), which deals with accident-death cases where the worker had either a surviving spouse or reciprocal beneficiary. That sub-section is again broken down, and one of its sub-sections is Sub-Section 88-286(c)(2)(A), which generally establishes a payment allowance for each dependent child, up to the age of 18.

    The Sections are laid out in numerical order within each Chapter. Again, in some cases there are deliberate gaps in the numbering, but also new sections added between old sections. For example, in Chapter 334 (AAdmission to Psychiatric Facility@) there is a Section numbered 334-60.4 which falls between the older Sections 334-60 and 334-61.

    At the immediate end of each Section there is a coded summary within brackets which gives the history of that law. This can be ignored, of course, but it is sometimes useful in researching the law to be able to go back and see how it has evolved over the years.

    For example, Chapter 79 (ALeaves of Absence@ for public employees) contains Section 79-7 (AVacation allowances on termination of employment@) to generally regulate how accumulated vacation time is taken care of when a public employee retires. At the end of the law is the historical material, edited here for brevity: A[L 1932 2d, c 4, '3; RL 1935, '106; am L 1943, c 142, '2; am L 1957, c 152, '1 and c 211, '1; HRS '79-7; gen ch 1985; am L 1997, c 169, '1 and c 383, '21]@

    To translate:

• AL 1932 2d, c 4, '3@ means: Originally passed in 1932 and contained in the [Legislative] Session Laws of 1932 reference book (L 1932) for the second (2d) session of that year. Specifically, it can be found as Section 3 ('3) of Act 4 (c 4) within that book. (A proposed law is called a Abill.@ An approved law is called an AAct.@ Acts are numbered starting with A1@ for each session of the Legislature.)
• ARL 1935, '106@ then means: the 1932 version of this law, without amendment, was given the number Section 106 ('106) when the laws were re-categorized in the Revised Laws of 1935 (RL 1935). This version of the law can therefore be found in the Revised Laws of 1935 reference books. (The Revised Laws of 1935 was an earlier version of the HRS. Note that the Revised Laws of 1935 did not tie each Section of the law to its Chapter number; the law was simply Section 106 of the entire set of laws without reference to any Chapter.)
• Aam L 1943, c 142, '2@ then means: the 1932 version of the law was amended (am) in 1943 and the amendment is contained in the [Legislative] Session Laws of 1943 reference book (L 1943). Specifically, it can be found as Section 2 ('2) of Act 142 (c 142) within that book.
• Aam L 1957, c 152, '1 and c 211, '1@ then means: the law was amended (am) twice further in 1957 and the amendments are contained in the [Legislative] Session Laws of 1957 reference book (L 1957). Specifically, they can be found as Section 1 ('1) of Act 152 (c 152) within that book, and also as Section 1 ('1) of Act 211 (c 211).
• AHRS '79-7@ then means: the 1957 version of this law, without further amendment, was given the number Section 79-7 ('79-7) when the laws were re-categorized as the Hawai>i Revised Statutes in the 1960s (HRS). This version can therefore be found in the HRS reference books. (This was the birth of the system of compiling the laws, called the HRS, that we still use today. Note that the same law was now assigned to Chapter 79 of that compilation of laws.)
• Agen ch 1985@ then means: the law was overhauled slightly and given a gender change (gen ch) so that the previous gender-specific language in it was made gender neutral.
• Aam L 1997, c 169, '1 and c 383, '21@ then means: the 1985 version of the law was amended (am) twice in 1997 and the amendments are contained in the [Legislative] Session Laws of 1997 reference book (L 1997). Specifically, they can be found as Section 1 ('1) of Act 169 (c 169) within that book, and also as Section 21 ('21) of Act 383 (c 383).

   Note that out of all this history, the most important for our purposes is the last item: Act 383 was the one which amended the law to include certified reciprocal beneficiary families among those eligible for benefits authorized by this law.

    The HRS includes not only the laws and their histories but also has a limited number of annotations (commentaries) on the individual laws. Complied by the legislative staff, these include occasional notes about such things as the law or how it came into being. Annotations also include some cross-references to other HRS laws or Rules of Court (the latter are unofficial laws published by the judicial branch of the State government).

    The annotations (commentaries) also include references to key interpretations of the law contained in such writings as court decisions, opinions from the State=s Attorney General, or law-journal articles. The annotations included within the HRS do not include all possible references but are useful for what references are listed.

    Most Sections of the HRS have no annotations; those that do have usually have just a few. Some annotations, however, can run for 10 pages. With one exception, noted in the text, all annotations are included below to give as complete a reference as possible.

    The annotations use their own sets of abbreviations to refer to portions of court decisions, law-review articles, or other sources. The meaning of these abbreviations, or the meaning of terms within the annotations or within the laws, can sometimes be explained by calling the Legislative Reference Bureau Librarian through the State switchboard (586-2211).

    It is extremely doubtful that any certified married couple has ever used all the laws referring to certified marriage. Likewise, it is doubtful that any certified reciprocal-beneficiary couple would ever use all the laws below. After all, the laws are quite long and often refer to rare occurrences.

    Still, they are, with the exception of the upcoming Vermont reciprocal-beneficiary law, the most thorough set of rights and benefits to same-gender couples in the country, and so they are offered here as reference and with the hope of their being used to the widest possible extent. Great sacrifice went into winning their approval, and we acknowledge those who came before and contributed to their existence.

The Use of Double
Brackets, Single Brackets, and '

    In the laws that follow, double-brackets are used to identify information added for explanatory purposes. Single brackets, on the other hand, are all materials from the HRS and refer to such things as a section number assigned to a law by the legislative staff when a number was not specified in the legislation; words inserted in a law for clarity although not in the law as passed by the Legislature; or the historical material following a law.

    In the HRS, each Section number is preceded with the symbol A'@ meaning Section.

    Laws occasionally refer to other Chapters or Sections of the HRS. Where these are not included below, they can be read in the HRS reference books, available at any library, or on the web at http://www.capitol.hawaii.gov/site1/docs/docs.asp?press1=docs (the web site contains different legislative documents; the HRS is included toward the bottom of the site).

    To make reading easier, the following Sections have been slightly reformatted without changing any of their language or order.

    The following list of laws attempts to include all reciprocal-beneficiary referenced materials from the HRS as of the start of 2000. Any errors or omissions, if any, are regretted; please send reports of any to Marriage Project Hawaii. Likewise, information on typographical or grammatical errors would be welcome, although it is noted that the laws and annotations are taken verbatim from the State=s current web site listing of the laws.

[[Chapter 23, AAuditor@]]
[[Chapter 23, Part IV, ASocial and Financial Assessment
of Proposed Mandatory Health Insurance Coverage.@]]

[[Chapter 23, referring to the Legislative Auditor, required the Auditor to examine the costs of any changes to the health-insurance coverage laws. The reciprocal-beneficiaries law (Act 383 of the 1997 Legislature), included changes to the health-insurance laws. To prevent delays or unnecessary burdens to the Auditor, Section 72 of Act 383 waived the requirement of the examination from Chapter 23.]]

[[Chapter 79, ALeaves of Absence@ (for public workers)]]

'79-7
Vacation allowances on termination of employment.

    An employee whose employment is voluntarily terminated without prejudice during any calendar year shall be entitled to all of the employee's accumulated vacation allowance plus the employee's current accrued vacation allowance to and including the date of termination, notwithstanding that the current accrued vacation allowance may not have been recorded at the time.

    An employee whose employment is involuntarily terminated otherwise than for cause due to the employee's own misconduct shall be entitled to all of the employee's accumulated vacation allowance and current accrued vacation allowance, and the date of such termination shall be fixed so as to permit the employee to take the leave.

    The date of discharge of an employee whose employment is terminated for cause due to the employee's own misconduct may, within the discretion of the department head concerned, be fixed so as to permit the allowance of all or any part of any accumulated vacation allowance and current earned vacation allowance.

    If any employee dies with accumulated or current accrued vacation earned but not taken, an amount equal to the value of the employee's pay over the period of such earned vacation, and any earned and unpaid wages, shall be paid to the person or persons who may have been designated as the beneficiary or beneficiaries by the employee during the employee's lifetime in a verified written statement filed with the comptroller or other disbursing officer who issues warrants or checks to pay the employee for the employee's services as a public officer or public employee, or, failing the designation, to the employee's surviving spouse or reciprocal beneficiary, or, failing the surviving spouse or reciprocal beneficiary, to the employee's estate.

    Whenever an employee's service is to be terminated, voluntarily or involuntarily, the service, at the option of the department head or other appointing power concerned, may be terminated forthwith and the retiring employee may be paid forthwith, in lieu of the employee's vacation allowance, the amount of compensation to which the employee would be entitled or which the employee would be allowed during the vacation period if the employee were permitted to take the employee's vacation in the normal manner, and in such case the employee's position may be declared vacant and may be permanently filled by a new appointee before the expiration of any vacation period following the date of the termination.

    For an employee hired after June 30, 1997, whose service is to be terminated, voluntarily or involuntarily, the amount of compensation to be paid in lieu of vacation allowance under this section shall be computed using the rate of pay and amount of accumulated and accrued vacation on the date the employee is terminated. Prompt notice upon such forms and in such manner as may be required shall be given by the department head of any action taken under this provision.

    [L 1932 2d, c 4, '3; RL 1935, '106; am L 1943, c 142, '2; RL 1945, '553; am L 1949, c 298, '1; am L 1955, c 71, '1; RL 1955, '5-38; am L 1957, c 152, '1 and c 211, '1; HRS '79-7; gen ch 1985; am L 1997, c 169, '1 and c 383, '21]

[[annotations:]]
Attorney General Opinions

Where increment increase falls within period of employee's vacation leave, employee is entitled to the increase whether employee takes the leave or is paid an amount in lieu of such leave. Att. Gen. Op. 64-32.

Unpaid wages and vacation pay of deceased employee were payable to designated beneficiary, even though employee acquired wife after designation of beneficiary and named wife as taker under his will. Att. Gen. Op. 69-15.

By terminating service before December 31, employee may receive payment for current accrued vacation allowance in addition to accumulated 90 day vacation credit. Att. Gen. Op. Ltr. 1/13/71.

'79-13
Funeral leave.

    Three days' leave with pay, on such days as may be designated by the officer or employee, shall be granted any officer or employee in the service of the State or any county upon the death of any member of the officer's or employee's immediate family.

    The term "immediate family" shall include the spouse or reciprocal beneficiary, children, parents, siblings, father-in-law, mother-in-law, grandparents, of the officer or employee, or an individual who has become a member of an immediate family through the Hawaiian "hanai" custom; provided, however, an individual affected by the "hanai" relationship shall be entitled to utilize funeral leave only for those members of the individual's immediate family resulting from the "hanai" relationship.

    [L 1955, c 179, '1; RL 1955, '5-42.5; am L 1963, c 157, '1; HRS '79-13; am L 1974, c 143, '1; gen ch 1985; am L 1997, c 383, '22]

[[Chapter 83, ATemporary Intergovernmental Assignment of Public Employees@]]

'83-8
Travel and transportation expenses.

    Whenever any unit of government of this State will benefit from a temporary intergovernmental assignment, it may, in accordance with applicable statutes and rules, pay for or reimburse another government for travel and transportation expenses of an employee on such an assignment, or a portion of such expenses, by agreement between the sending and the receiving agencies.

    Such expenses may include a per diem allowance if the period of assignment will be for less than eight months or the costs of moving the employee's spouse or reciprocal beneficiary, and children, household goods and personal effects between agencies if the period of assignment will be for eight months or longer.

    [L 1978, c 63, pt of '4; am L 1997, c 383, '23]

[[Chapter 87, APublic Employees Health Fund@]]

'87-23.5
Determination of long-term care benefits plan; contract with carrier or third-party administrator.

    (a) [Subsection effective until June 30, 2000. For subsection effective July 1, 2000, see below.] The board of trustees shall determine the benefits of a long-term care benefits plan for employee-beneficiaries, their spouses or reciprocal beneficiaries, and qualified-beneficiaries. The plan shall comply with the provisions of article 10A, part V, of chapter 431, upon initial plan implementation only.

    (a) [Subsection effective July 1, 2000. For subsection effective until June 30, 2000, see above.] The board shall determine the benefits of a long-term care benefits plan for employee-beneficiaries, their spouses or reciprocal beneficiaries, as well as their parents and grandparents, and in-law parents and grandparents, and qualified-beneficiaries. The plan shall comply with article 10H, of chapter 431.

    (b) [Subsection effective until June 30, 2000. For subsection effective July 1, 2000, see below.] Notwithstanding any other law to the contrary, such benefits shall be available only to employee-beneficiaries, their spouses or reciprocal beneficiaries, and qualified-beneficiaries who enroll between the ages of twenty and eighty-five. Eligible persons must comply with the plan's age, enrollment, medical underwriting, and contribution requirements.

    (b) [Subsection effective July 1, 2000. For subsection effective until June 30, 2000, see above.] Notwithstanding any other law to the contrary, the benefits shall be available only to employee-beneficiaries, their spouses or reciprocal beneficiaries, as well as their parents and grandparents, and in-law parents and grandparents, and qualified-beneficiaries who enroll between the ages of twenty and eighty-five. Eligible persons must comply with the plan's age, enrollment, medical underwriting, and contribution requirements.

    (c) The board may contract with a carrier to provide fully-insured benefits or a third-party administrator to administer self-insured benefits.

    [L 1991, c 331, pt of '1; am L 1997, c 383, '24; am L 1999, c 93, '4]

['87-25.5]
Reciprocal beneficiary family coverage defined; reciprocal beneficiary employees, State and counties, and fund responsibility costs.

    (a) The board of trustees shall establish a reciprocal beneficiary family coverage health benefits plan for an employee who is a reciprocal beneficiary under chapter 572C and elects to enroll in reciprocal beneficiary family coverage.

    (b) As used in this section, reciprocal beneficiary family coverage means coverage under a health benefits plan that insures, originally or upon subsequent amendment, an employee who is a reciprocal beneficiary, the other party to the employee's reciprocal beneficiary relationship, and any dependent-beneficiary of the employee, any unmarried child of the non-employee reciprocal beneficiary under age nineteen, or a surviving beneficiary of the employee.

    (c) This section shall be repealed on June 30, 1999.

    [L 1997, c 383, '2]

    [[This benefit was included in the original reciprocal-beneficiaries law and is included here for reference only as it expired on 6/30/99 as stated in the law.]]

[[Chapter 88, APension and Retirement Systems@
(for public workers)]]
[[Part I, General Provisions]]
[[Sub-Part A, Miscellaneous]]

'88-1
Restrictions.

    The provisions of this section shall be applicable to every pension and to every recipient or beneficiary thereof, granted or provided for by any special act of the legislature (other than benefits, or the recipients thereof, payable to beneficiaries or retirants of the employees' retirement system under part II) whether the pension be payable by the State or by any county, or by any board, commission, bureau, department, or other agency thereof:

1. No recipient or beneficiary shall be permitted to draw any pension, or any portion thereof, in excess of $50 per month, while the recipient or beneficiary is holding any salaried position or office in, under or by authority of the United States, the State, or any political subdivision thereof. This paragraph shall not apply to any recipient or beneficiary who is elected to the legislature or to the council of any county.
2. If the recipient or beneficiary is a surviving spouse or reciprocal beneficiary, the pension so granted shall cease when the surviving spouse or reciprocal beneficiary remarries, marries, or enters into a new reciprocal beneficiary relationship.
3. Any pension payable to any minor shall cease when the minor reaches the age of eighteen years.
4. If any recipient or beneficiary of a pension, having a spouse or reciprocal beneficiary at the time the pension was first granted to the recipient or beneficiary dies, then the spouse or reciprocal beneficiary, as long as the spouse or reciprocal beneficiary remains unmarried or not in a reciprocal beneficiary relationship, shall be paid sixty per cent of the amount of the pension payable to the beneficiary.

    [L 1933, c 157, '1; RL 1935, '7915; am L 1943, c 44, '1; RL 1945, '631; am L 1947, c 28, '1; RL 1955, '6-1; HRS '88-1; am L 1969, c 110, pt of '1; am L 1974, c 118, '1(1); gen ch 1985; am L 1997, c 383, '25]

'88-4
Medical aid, etc., when free.

    Every recipient of any retirement allowance or pension payable by the State or by any county or by any other governmental body or agency created by or under the laws of the State who is actually and solely dependent upon the recipient's retirement allowance or pension for the recipient's maintenance and support or whose total income in whatever form or from whatever source received, including but not limited to, the recipient's retirement allowance or pension and any income of the recipient's spouse or reciprocal beneficiary is less than $2,400 a year shall, for the recipient and the recipient's spouse or reciprocal beneficiary, be entitled to free medical treatment from any government physician employed by the State or any county and to free hospitalization at any state hospital or at a hospital where county patients are treated at county expense in the county wherein the recipient resides.

    Whenever a retirant or pensioner having a spouse or reciprocal beneficiary dies, then the spouse or reciprocal beneficiary, as long as the spouse or reciprocal beneficiary remains unmarried and does not enter into a reciprocal beneficiary relationship, shall be eligible for benefits under this section.

    [L 1937, c 90, '1; RL 1945, '634; RL 1955, '6-4; am L 1964, c 64, '2; am L 1965, c 260, '1; HRS '88-4; am L 1969, c 110, pt of '1; gen ch 1985; am L 1997, c 383, '26]

'88-5
List of pensioners, who shall provide.

    The proper department of each county shall determine who is entitled to benefits under section 88-4 and shall provide to any government physician employed by the State or any county, and any county hospital or a hospital where county patients are treated at county expense in the county wherein the pensioner or beneficiary resides, a current list of pensioners and their [spouses] or reciprocal beneficiaries who are entitled to benefits under section 88-4.

    Upon request, the state retirement system shall provide to the proper departments of each county such information as may be required to administer section 88-4.

    [L 1965, c 260, '2; Supp, '6-4.1; HRS '88-5; am L 1969, c 110, pt of '1; am L 1997, c 383, '27]

[[Chapter 88, APension and Retirement Systems@ (continued)]]
[[Part II, ARetirement for Public Officers and Employees@]]
[[Sub-Part C, ABenefits@]]

'88-84
Ordinary death benefit.

    (a) Upon receipt of proper proof of a member's death occurring in service or while on authorized leave without pay, there shall be paid to the member's designated beneficiary an ordinary death benefit consisting of:

1. The member's accumulated contributions and, if no pension is payable under section 88-85, an amount equal to fifty per cent of the compensation earned by the member during the year immediately preceding the member's death if the member had at least one year but not more than ten full years of credited service, which amount shall increase by five per cent for each full year of service in excess of ten years, to a maximum of one hundred per cent of the compensation; provided that if the member had at least one year of credited service, the amount, together with the member's accumulated contributions shall not be less than one hundred per cent of the compensation; or
2. If the member had ten or more years of credited service at the time of death in service, and the death occurred after June 30, 1988, the member's designated beneficiary may elect to receive in lieu of any other payment provided in this section, the allowance that would have been payable as if the member had retired the day prior to death under option 3 of section 88-83 and computed on the basis of section 88-76; or
3. If the member was eligible for service retirement at the time of death in service, the member's designated beneficiary may elect to receive in lieu of any other payment provided in this section, the allowance that would have been payable as if the member had retired the day prior to death and had elected to receive a retirement allowance under option 2 of section 88-83.

   (b) If the member's designation of beneficiary is void as specified in section 88-93, or if the member did not designate a beneficiary, there shall be payable:

1. To the surviving spouse or reciprocal beneficiary, a benefit as specified under subsection (a)(1), (2), or (3);
2. To the deceased member's dependent child, or children under age eighteen if there is no surviving spouse or reciprocal beneficiary, an equally divided benefit as specified under subsection (a)(1); or
3. To the deceased member's estate, if there is no surviving spouse or reciprocal beneficiary or dependent child or children, a benefit as specified under subsection (a)(1).

   (c) For the purposes of this section, a year round school employee shall be considered in service during the July and August preceding a transfer to a traditional school schedule if the employee was in service for the entire prior school year and has a contract for the upcoming traditional school year.

    [L 1925, c 55, '6(8); RL 1935, pt of '7925; RL 1945, '708, subs 8; am L 1949, c 200, '1; am L 1951, c 127, '1; RL 1955, '6-51; am L 1963, c 127, '12; am L 1967, c 247, '1; HRS '88-77; am L 1969, c 110, pt of '1; gen ch 1985; am L 1987, c 299, '2; am L 1988, c 41, '3 and c 242, '1; am L 1993, c 67, '1; am L 1994, c 108, '3; am L 1997, c 212, '4 and c 383, '28]

[[annotations:]]
Attorney General Opinions

Because of operation of renunciation of succession pursuant to Uniform Probate Code, beneficiary, deceased parent, was deemed to have predeceased member; thus, only remaining beneficiary was remaining parent, and employees= retirement system may pay member=s benefits to sole remaining beneficiary. Att. Gen. Op. 97-3.

'88-85
Accidental death benefit.

    Upon the receipt of proper proofs of a member's death by the board of trustees, there shall be paid to the member's designated beneficiary or to the member's estate the amount of the member's accumulated contributions and if, upon the receipt of evidence or proofs that the death was the natural and proximate result of an accident occurring at some definite time and place while the member was in the actual performance of duty, or that the death was due to the result of some occupational hazard, the board shall decide that the death was the result of an accident in the performance of duty and not caused by wilful negligence on the part of the member, there shall be paid in lieu of the ordinary death benefits provided by the contributions of the State or county, a pension of one-half of the average final compensation of the member:

1. To the surviving spouse or reciprocal beneficiary of the member to continue until the surviving spouse or reciprocal beneficiary remarries, marries, or enters into a new reciprocal beneficiary relationship; or
2. If there be no surviving spouse or reciprocal beneficiary, or if the surviving spouse or reciprocal beneficiary dies or remarries, marries, or enters into a new reciprocal beneficiary relationship before any child of the deceased member shall have attained the age of eighteen years, then to the deceased member's child or children under such age, divided in such manner as the board in its discretion shall determine, to continue as a joint and survivor pension of one-half of the deceased member's final compensation until every child dies, or attains such age; or
3. If there is no surviving spouse or reciprocal beneficiary or child under the age of eighteen years surviving the deceased member, then to the deceased member's dependent father or dependent mother, as the deceased member shall have nominated by written designation duly acknowledged and filed with the board, or if there is no such nomination, then to the deceased member's dependent father or to the deceased member's dependent mother as the board, in its discretion, shall direct to continue for life.

   Notwithstanding any other law to the contrary, any condition of impairment of health caused by any disease of the heart, lungs, or respiratory system, resulting in death to a firefighter, police officer, or sewer worker, shall be presumed to have been suffered in the actual performance of duty at some definite time and place through no wilful negligence on the firefighter's, police officer's, or sewer worker's part, and as a result of the inherent occupational hazard of exposure to and inhalation of smoke, toxic gases, chemical fumes, and other toxic vapors, unless the contrary be shown by competent evidence; provided that such firefighter, police officer, or sewer worker shall have passed a physical examination on entry into such service or subsequent to such entry, which examination failed to reveal any evidence of such condition.

    [L 1925, c 55, '6(9); am L 1927, c 251, ''1, 4, 5; RL 1935, pt of '7925; RL 1945, '708, subs 9; RL 1955, '6-52; HRS '88-78; am L 1969, c 110, pt of '1; am L 1974, c 118, '1(2) and c 182, '4; am L 1977, c 44, '1 and c 191, '2; gen ch 1985; am L 1997, c 383, '29]

[[annotations:]]
Attorney General Opinions

Heart attack could constitute "accident" within meaning of section. Att. Gen. Op. 69-25.

Death resulting from operation on knee injured in actual performance of duty was natural and proximate result of injury and compensable. Att. Gen. Op. 71-6.

Police officer injured in automobile accident while driving home from work in police officer's own, but government equipped car, is injured while in the actual performance of duty. Att. Gen. Op. 71-6.

Hanai children are not included within meaning of "child" or "children" as used in section. Att. Gen. Op. 93-1.

'88-93
Named beneficiaries by active members; effect of marriage, entry into reciprocal beneficiary relationship, divorce, termination of reciprocal beneficiary relationship, or death.

    All nominations by written designation of beneficiaries shall become null and void when:

1. The beneficiary predeceases the member;
2. The member is divorced from the beneficiary;
3. The member is unmarried, and subsequently marries; or
4. The member enters into or terminates a reciprocal beneficiary relationship.

   Any of the above events shall operate as a complete revocation of such designation and all benefits payable by reason of the death of the member shall be payable to the member's legal representatives unless, after the death, divorce or marriage, or entry into or termination of reciprocal beneficiary relationship, the member makes other provision in a written designation duly executed and filed with the board of trustees.

    [L 1951, c 156, '1; am L 1955, c 12, '1; RL 1955, '6-54; HRS '88-84; am L 1969, c 110, pt of '1; gen ch 1985; am L 1997, c 383, '30]

[[annotations:]]
Attorney General Opinions

Because of operation of renunciation of succession pursuant to Uniform Probate Code, beneficiary, deceased parent, was deemed to have predeceased member; thus, only remaining beneficiary was remaining parent, and employees= retirement system may pay member=s benefits to sole remaining beneficiary. Att. Gen. Op. 97-3.

Case Notes
Provision revoking a designation by subsequent marriage operated to revoke a designation made prior to enactment of provision; not unconstitutional. 42 H. 532.

Divorce decree may order party to maintain his former wife and children as beneficiaries, and upon failure of party to comply, court will determine rights of parties as if obligation had been performed. 52 H. 357, 477 P.2d 620.

[[Chapter 88, APension and Retirement Systems@ (continued)]]
[[Part III, APolice Officers, Firefighters, and Bandsmen Pension System@]]

'88-163
Death benefits: funeral expenses; payments to dependents.

    (a) Upon the death of any member of the police force, fire department, or band, as a result of any injury received or disease contracted while in the performance of his duty, or when entitled to a pension under this part or who has been pensioned under this part there shall be paid, for funeral expenses, a sum not to exceed $100. Should the deceased member leave a dependent widow or reciprocal beneficiary and a child or children under the age of eighteen years, then there shall be paid out of the system $50 per month to the widow until her death or remarriage or to the reciprocal beneficiary until death, marriage, or entry into a new reciprocal beneficiary relationship and $7.50 per month to the widow or reciprocal beneficiary for each child so long as the child shall reside with the widow or reciprocal beneficiary or is supported by the widow or reciprocal beneficiary. Upon the death of such widow or reciprocal beneficiary, or in the event the deceased member leaves no widow or reciprocal beneficiary but a child or children under the age of eighteen years, then there shall be paid out of the system $50 per month to the child or children of the deceased member under the age of eighteen years with each child, if there be more than one, receiving an equal share of the $50 per month payment plus $7.50 per month. All payments to a child of a deceased member provided for herein shall cease when he or she arrives at the age of eighteen years.

    (b) If any member of the police force, fire department or band, dies not leaving a widow or reciprocal beneficiary, but leaving a father or mother dependent upon him, the father or mother (but not both) shall, upon satisfactory proof of dependency being made to the board of trustees receive from the system a sum not exceeding $50 per month. The board shall determine whether the father or mother is dependent and how much of the amount herein provided for shall be paid to him or her. If there be no widow or reciprocal beneficiary and no child and no father or mother, but dependent brothers or sisters, then such pension shall be paid to them in such sums as shall not exceed the aggregate amount of $30 per month. All pensions authorized as provided in this subsection shall be subject to reduction by the board of trustees whenever, in its judgment, circumstances make it reasonable, fair, or necessary. All pensions so reduced may thereafter be restored or further reduced as the board may deem best.

    (c) On the remarriage of any widow or reciprocal beneficiary entitled to the benefits of any sum, or in the event of any father or mother, brothers or sisters ceasing to be dependents then the payments to them shall cease.

    [L 1917, c 220, pt of '3; am L 1923, c 99, '1 and pt of '2; RL 1925, pt of '2163; am L 1929, c 9, pt of '1; am L 1931, c 144, '1; RL 1935, pt of '7905; am L 1939, c 86, '2; RL 1945, pt of '6173; RL 1955, '6-143; am L 1963, c 65, '2b, j; am L 1967, c 141, '1; HRS '88-163; am L 1997, c 383, '31]

[[annotations:]]
Case Notes

Pensioner may bring claim for arrears in pension. 34 H. 150.

The claim does not survive death of pensioner. 34 H. 667.

[[Chapter 88, APension and Retirement Systems@ (continued)]]
[[Part IV, AMunicipal and County Pension Systems@]]

'88-189
Widow's, widower's, and reciprocal beneficiary's pensions.

    The widow and widower or reciprocal beneficiary of any deceased man or woman, who have been previously granted or are found subsequent to his or her death to have been entitled to a pension under this part, or to have had ten or more years of service although he or she had not reached the age of sixty years, shall be eligible for a pension equal to the same amount, including all the bonuses provided in section 88-11, and all other benefits, that the said deceased was receiving or entitled to receive at the time of his or her death, and all future benefits deriving thereto, so long as the widow, widower, or reciprocal beneficiary remains unmarried or has not entered into a new reciprocal beneficiary relationship.

    [L 1937, c 237, '2; am L 1939, c 112, pt of '1; am L 1941, c 302, pt of '1; RL 1945, pt of '6185; am L 1949, c 156, '1; RL 1955, '6-168; HRS '88-189; am L 1974, c 118, '1(3); am L 1997, c 383, '32]

[[Chapter 88, APension and Retirement Systems@ (continued)]]
[[Part VII, ARetirement for Class C Public Officers and Employees@]]
[[Sub-Part D, AEligibility; Benefits@]]

'88-286
Death benefit.

    (a) The surviving spouse or reciprocal beneficiary and dependent child or children of a member at the time of the member's death shall be eligible for a death benefit if the member suffers either an ordinary death while in service or on authorized leave without pay after accumulating ten years of credited service or an accidental death.

    (b) In the case of ordinary death, the death benefit shall be as follows:

1. For the surviving spouse or reciprocal beneficiary, an allowance equal to one-half of the member's accrued normal retirement allowance unreduced for age, payable until remarriage, marriage, or entry into a new reciprocal beneficiary relationship[,] as if the member had retired the day prior to death; and for each dependent child an allowance equal to ten per cent of the member's accrued normal retirement allowance unreduced for age, payable until the dependent child attains age eighteen; provided that the aggregate death benefits for all the dependent children shall not exceed twenty per cent of the member's accrued normal retirement allowance unreduced for age; or
2. For the surviving spouse [or reciprocal beneficiary], if the member was eligible for retirement at the time of death in service, and death occurred after June 30, 1990, an allowance that would have been payable as if the member had retired the day prior to death and had elected to receive a retirement allowance under option B of section 88-283; and
3. If there is no surviving spouse or reciprocal beneficiary, each dependent child shall receive an allowance equal to twenty per cent of the member's accrued normal retirement allowance unreduced for age, payable until the dependent child attains age eighteen; provided that the aggregate death benefits for all the dependent children shall not exceed forty per cent of the member's accrued normal retirement allowance unreduced for age. For the purpose of determining eligibility for the ordinary death benefit, a year round school employee shall be considered in service during the July and August preceding a transfer to a traditional school schedule if the employee was in service for the entire prior school year and has a contract for the upcoming traditional school year.

   (c) In the case of accidental death, the death benefit shall be as follows:

1. For the surviving spouse, or reciprocal beneficiary, an allowance equal to thirty per cent of the member's average final compensation, payable until remarriage;
2. If there is a surviving spouse or reciprocal beneficiary, each dependent child under eighteen shall receive an allowance equal to the greater of:
   
   1. Ten per cent of the member's accrued normal retirement allowance, unreduced for age; provided that the aggregate death benefits for all the dependent children shall not exceed twenty per cent of the member's accrued normal retirement allowance unreduced for age; or
   2. Three per cent of the member's average final compensation; provided that the aggregate death benefits for all the dependent children shall not exceed six per cent of the member's average final compensation. The death benefit under this paragraph shall be payable to each dependent child until the dependent child attains age eighteen; and
3. If there is no surviving spouse or reciprocal beneficiary, each dependent child under eighteen shall receive an allowance equal to the greater of:
   
   1. Twenty per cent of the member's accrued normal retirement allowance, unreduced for age; provided that the aggregate death benefits for all the dependent children shall not exceed forty per cent of the member's accrued normal retirement allowance unreduced for age; or
   2. Six per cent of the member's average final compensation; provided that the aggregate death benefits for all the dependent children shall not exceed twelve per cent of the member's average final compensation.

    The death benefit under this paragraph shall be payable to each dependent child until the dependent child attains age eighteen.

    [L 1984, c 108, pt of '8; am L 1993, c 22, '1 as superseded by c 67, '3; am L 1994, c 108, '4; am L 1997, c 212, '7 and c 383, '33]

[[annotations:]]
Note
Section is a blend of L 1997, cc 212 and 383.

Attorney General Opinions
Hanai children are not included within meaning of "child" or "children" as used in section. Att. Gen. Op. 93-1.

[[Chapter 105, AGovernment Motor Vehicles@]]

'105-2
Exceptions.

    Section 105-1 shall not apply to:

1. The governor;
2. The mayor of any county;
3. Any member of a police department or a fire department or of the staff of a hospital, or any officer or employee of the board of water supply of the city and county of Honolulu, when using a motor vehicle for a personal purpose incidental to the person's service or work (but not for pleasure);
4. Any officer or employee of the State who, upon written recommendation of the comptroller, is given written permission by the governor to use, operate, or drive for personal use (but not for pleasure) any motor vehicle owned or controlled by the State;
5. Any officer or employee of any county who, upon written recommendation of the budget director, is given written permission by the mayor, to use, operate or drive for personal use (but not for pleasure) any motor vehicle owned or controlled by the county;
6. Any officer or employee of the State, or of any county, who, in case of emergency, because of the person's illness, or the person's incapacity caused by accident while at work, or because of the illness of a member of the person's immediate family including a reciprocal beneficiary while the person is at work, is conveyed in a motor vehicle to the person's place of abode, or to a hospital or other place, but every such use of such a motor vehicle shall be certified to by the officer or by the head of the department, commission, board, bureau, agency, or instrumentality controlling or possessing the motor vehicle immediately thereafter, and the certificate shall be forthwith filed with the comptroller, in the case of the State, or with the budget director, in the case of a county; and
7. The assigned driver of a Van Go Hawaii vehicle or any other state ridesharing program vehicle.

    [L 1919, c 227, pt of '1; RL 1945, pt of '462; am L 1949, c 389, pt of '1(a); RL 1955, '7-11; am L 1965, c 11, '1; HRS '105-2; am L 1981, c 49, '1; gen ch 1993; am L 1997, c 383, '34]

[[annotations:]]
Attorney General Opinions

Narcotics enforcement division investigators have authority for personal use of state vehicles incident to law enforcement purposes where prior written permission has been obtained from governor upon written recommendation of comptroller. Att. Gen. Op. 91-03.

[[Chapter 171, APublic Lands, Management and Disposal of@]]

'171-74
Qualifications of lessees.

    To qualify for a residential lease under this part, the lessee shall:

1. Be of legal age and have at least one person, related to the lessee by blood or marriage and solely dependent upon the lessee for support, who will occupy the premises with the lessee; provided that this requirement shall not apply to a husband and wife or to reciprocal beneficiaries who are joint lessees, even if both are employed;
2. Be a citizen and a resident of the State for not less than five years immediately preceding the issuance of the lease;
3. Have a gross income not in excess of $20,000 a year, including the gross income of the lessee's spouse or reciprocal beneficiary. In determining gross income, the standard income tax exemption for each of the lessee's dependents, as determined by the income tax laws of the State, shall be allowed; and
4. Have such other qualifications as may be established by the board of land and natural resources.

    Any person who, after taking a residential lease, through change or circumstances, loses the qualifications initially required of the person or becomes disqualified to take a residential lease, shall not thereby be required to surrender the person's residential lease, but shall be entitled to continue to hold the same.

    [L 1962, c 32, pt of '2; Supp, '103A-70; HRS '171-74; am L 1970, c 184, '5; gen ch 1985; am L 1997, c 383, '35]

'171-99
Continuation of rights under existing homestead leases, certificates of occupation, right of purchase leases and cash freehold agreements.

    (a) Issuance of land patents to occupier or lessee of homestead lands. A fee simple patent shall be issued to every existing occupier under a certificate of occupation issued heretofore, and to every lessee under a nine hundred and ninety-nine year homestead lease issued heretofore, of public lands, where the lands have been improved under the certificate or lease, or have been used as a place of residence by the occupier or lessee for an aggregate continuous period of not less than ten years upon payment to the board of land and natural resources of a fair market price, disregarding the value of the improvements made by the occupier or lessee, which price shall be determined by appraisal as provided for in this chapter; provided that the board may exclude from such patents areas required as roadways to other lots.

    (b) Issuance of patent, lessee of right of purchase lease. The lessee of any existing right of purchase lease shall, at such time and under such conditions as are contained in the lease, be entitled to a land patent from the board conveying to the lessee a fee simple title to the land described in the lessee's lease upon the payment of the fair market price of the land as determined by appraisal as provided for in this chapter, provided the lessee has reduced to cultivation twenty-five per cent of the premises and has resided thereon not less than two years and has substantially performed all other conditions of the lessee's lease.

    (c) Cash freeholds, agreement, patent, conditions. At the end of three years from the date of the payment of the first installment, the holder of a freehold agreement is entitled to a land patent for the premises described therein, if the following conditions, in addition to those set forth herein, have been substantially performed:

1. Payment of the balance of the purchase price in equal installments, in one, two, and three years respectively, from the date of the freehold agreement with interest annually at the rate of four per cent; provided that the freeholder may pay the installment before it is due, and thereby stop the corresponding interest;
2. Cultivation of not less than twenty-five per cent of the area of the premises, and the planting and care of not less than an average of ten timber, shade or fruit trees per acre, if agricultural land, at any one time before the end of the third year, or fencing in the same if pastoral land within such time; provided that if the premises are classed as pastoral-agricultural land, the foregoing alternative conditions shall apply respectively to the two kinds of land;
3. Maintenance by the freeholder of the freeholder's home on the premises from the end of the first to the end of the third year;
4. Conditions for the prevention of waste, the planting of trees or the protection of trees growing or to be planted on the premises, or for the destruction of vegetable pests that may be on such premises or the prevention of the future introduction of such pests thereon;
5. Payment of all taxes that may be due on account of the premises. The holder of a freehold agreement shall allow the land agents to enter and examine the premises at all reasonable times to see that the conditions are being performed. The holder shall not assign or sublet, conditionally or otherwise, the holder's interest or any part thereof, under the freehold agreement, without the written consent of the board indorsed on the agreement; and provided further that freeholders having the whole interest in a freehold agreement may at any time when all the conditions thereof to be performed by the freeholder up to such time shall have been substantially performed, surrender to the government the interest by delivery of the freehold agreement to the land agent with the intention to surrender the same clearly indorsed thereon, and signed by them and duly attested. The surrender shall release the freeholders from all further duty or performance of the conditions of the instrument surrendered. But no such surrender shall be permitted if any freeholders are under the age of eighteen years unless the minors are represented by statutory guardians; and provided further that any freeholder over the age of eighteen may assign the freeholder's interest to the freeholder's cotenants.

    (d) Right of purchase lease; termination, forfeiture, or surrender. Upon the termination of a right of purchase lease by lapse of time, or upon the forfeiture or surrender of the lease or a freehold agreement, the board may in its discretion and within the limit of its authority open the premises or any part thereof for disposition in the manner or for such uses as provided in this chapter. Before the disposition the fair market value thereof shall be established by appraisal. The value attributable to the improvements in the appraisal shall be paid to the surrendering lessees or freeholders, upon resale of the premises, and the director of finance shall pay the amount of the valuation upon the requisition of the board out of such funds.

    (e) Interests, descent; certificate of occupation or homestead lease. In case of the death of any occupier or lessee under an existing certificate of occupation or existing homestead lease, all the interest of the occupier or lessee, any conveyance, devise, or bequest to the contrary notwithstanding, in land held by the decedent by virtue of such certificate of occupation or homestead lease shall vest in the relations of the decedent as follows:

1. In the widow, widower, or reciprocal beneficiary;
2. If there is no widow, widower, or reciprocal beneficiary, then in the children;
3. If there are no children, then in the widows, widowers, or reciprocal beneficiaries of the children;
4. If there are no such widows, widowers, or reciprocal beneficiaries, then in the grandchildren;
5. If there are no grandchildren, then in the parents or surviving parent;
6. If there are no parents or surviving parent, then in the sisters and brothers;
7. If there are no sisters and brothers, then in the widowers, widows, or reciprocal beneficiaries of the sisters and brothers;
8. If there are no such widowers, widows, or reciprocal beneficiaries, then in the nieces and nephews;
9. If there are no nieces or nephews, then in the widowers, widows, or reciprocal beneficiaries of the nieces and nephews;
10. If there are no such widowers, widows, or reciprocal beneficiaries, then in the grandchildren of the sisters and brothers;
11. If there are no grandchildren of any sister or brother, then in the State.

    All the successors, except the State, shall be subject to the performance of the unperformed conditions of the certificate of occupation, or the homestead lease, in like manner as the decedent would have been subject to the performance if the decedent had continued alive; provided that if a widow, widower, or reciprocal beneficiary, in whom the interest shall have vested, shall thereafter marry again and decease leaving a widower, widow, or reciprocal beneficiary and a child or children of the first marriage surviving, the interest of the deceased shall vest in such child or children; and provided further that in case two or more persons succeed together to the interest of any occupier or lessee, according to the foregoing provisions, they shall hold the same by joint tenancy so long as two or more shall survive, but upon the death of the last survivor, the estate shall descend as provided above.

    (f) Option of cotenant to compel others to buy or sell. In case two or more persons become cotenants under any existing right of purchase lease, certificate of occupation, or homestead lease by inheritance or otherwise, any one or more of such persons less than the whole number may file in the office of the land agent an offer to the remainder of the persons to buy their interest in the premises or to sell them their own interest therein at a stated price according to the proportion of the respective interest in question, and may deposit with the land agent the amount of the offered price in money, with a fee of $10. The land agent shall thereupon notify the persons to whom the offer is made of the nature of the offer and order them to file with the land agent their answer within sixty days whether they will buy or sell according to the offer. If the persons to whom the offer is made file with the land agent within sixty days of the time of their receiving the notification, their answer stating that they will sell their interest according to the terms of the offer, the land agent shall indorse the fact of the sale with the amount of the consideration on the lease and pay to such persons the amount of the consideration deposited with the land agent according to their individual interest; and the interest of such persons shall thereupon vest in the persons making the offer. The fact of the transfer shall be properly recorded in the official records of the land agent and indorsed upon the lease held by the lessee. If, however, the persons to whom the offer is made fail to answer within sixty days from the time of their being notified of the offer or within sixty days from the time the notice of the offer mailed to their last known place or places of abode, or shall answer within sixty days that they will buy the interest of the persons making the offer on the terms offered, but fail within sixty days after the notification to deposit the amount representing the value of the interest according to the terms offered, their interest shall vest in the persons making the offer and the amount of the consideration shall be paid by the land agent of them individually or their respective representatives upon application. In such case the fact of the transfer shall be recorded and indorsed as above provided. In the event that any funds held by the land agent hereunder may not be paid to the persons to whom properly payable, because of the inability of the land agent to locate such persons, the funds shall, after the expiration of one year, be deposited in the department of budget and finance of the State and there abide the claim of any person thereto lawfully entitled; provided that no claim to the funds shall be allowed unless the claim is made within five years after the deposit. Payment of any claim duly filed may be made if the department of budget and finance and the board concur in finding the claim valid and proper, but if the claimant fails to obtain concurrency of the department of budget and finance and the board within sixty days of the filing of the claimant's claim, the claimant may present a petition to the circuit court of the first judicial circuit in that behalf, notice whereof shall be given to the attorney general, who may appear and defend on behalf of the State, and if the court renders a judgment in favor of the claimant, the department of budget and finance shall pay the amount due without interest. But if the persons to whom the offer is made shall, within sixty days from the time of the notification, make answer to the land agent that they will buy the interest of the offering parties and shall deposit within sixty days with the land agent the amount required for the purpose according to the terms of the offer, the land agent shall indorse and record the fact of the sale as above provided, and pay to the offering parties the amount according to their individual interest; and the interest of the offering parties shall thereupon vest in the answering parties. In such case the consideration money deposited by the offering parties shall be returned to them.

    (g) Forfeiture; existing certificate of occupation or homestead lease. The violation of any of the conditions of any existing certificate of occupation or homestead lease shall be sufficient cause for the board upon failure of the occupier or lessee within a reasonable period of time to remedy the default after notice thereof in the manner provided in section 171-20 to take possession of the demised premises without demand or previous entry, with or without legal process, and thereby, subject to section 171-21, terminate the estate created.

    (h) Forfeiture; cash freeholds. In the case of default in the payment of any of the installments due on any cash freehold agreement for thirty days after the same are due, or failure of performance of any other conditions, the board may take possession of the premises, upon failure of the freeholder within a reasonable period of time to remedy the default after notice thereof in the manner provided in section 171-20 without demand or previous entry, with or without legal process, and thereby subject to section 171-21, terminate the estate created.

    [L 1962, c 32, pt of '2; am L 1963, c 114, '1; Supp, '103A-93; HRS '171-99; am L 1980, c 17, '1; am L 1981, c 15, '1; gen ch 1985; am L 1997, c 383, '36]

[[annotations:]]
Case Notes

Fee simple interest may be purchased under subsection (a) by payment of "fair market price", which, under this section and '171-79, requires appraisers to ignore both the value of improvements erected on the premises and the lease encumbrances. 85 H. 217, 941 P.2d 300.

[[Chapter 209, ADisaster Relief and Rehabilitation@]]
[[Part III, ACommercial and Personal Loans@]]

'209-28
Purpose of loans.

    (a) Commercial loans may be made for the following purposes: to purchase inventory, equipment, and machinery; to construct, repair, or restore buildings; to provide operating funds; and to refinance outstanding business loans on equipment and buildings; provided that the loans shall be used to rehabilitate the business of the disaster victim as nearly as possible to its predisaster level; and provided further that the loans shall not be used to begin a business substantially different from the one the disaster victim was engaged in before the state disaster. Business concerns which were nonowners of buildings before the state disaster shall not be precluded from obtaining building loans under this part.

    (b) Personal loans may be made for the purpose of meeting necessary expenses or to satisfy serious needs of individuals and families including reciprocal beneficiaries which arose as an immediate and direct result of a disaster.

    [L 1961, c 189, '14; Supp, '98P-14; HRS '209-28; am L 1976, c 205, '1(2); am L 1997, c 383, '37]

'209-29
Eligibility for loans.

    Loans may be made to individuals, partnerships, corporations, cooperatives, or other business associations, but only if the applicant:

1. Suffered loss of or damage to property in a rehabilitation area as a result of a state disaster;
2. For a commercial loan, had operated an industrial, manufacturing, processing, wholesaling, or retailing business, or professional or service business, or building rental business, immediately before the disaster;
3. Presents a suitable program for:
   1. Rehabilitation or re-establishment of the applicant's business to its predisaster level when applying for a commercial loan; or
   2. Meeting necessary expenses and satisfying the serious needs of the applicant and the applicant's family including reciprocal beneficiary when applying for a personal loan;
4. Has reasonable ability to repay the loan; and
5. For a commercial loan, presents written evidence that the Small Business Administration had declined an application for financial assistance under the Small Business Administration Disaster Loan Program or has reduced the amount of the loan request; provided that the declination was not due to the applicant's having sufficient financial resources to rehabilitate the applicant; or
6. For a commercial loan, cannot secure any loans from the Small Business Administration Disaster Loan Program because the making of the loans is not covered by the program, and the director of business, economic development, and tourism is reasonably satisfied that the applicant is not able to secure loans from private lending institutions and does not have sufficient financial resources to rehabilitate the applicant.

    Paragraph (6) shall be applied in the alternative with respect to paragraph (5) of this section.

    [L 1961, c 189, '15; Supp, '98P-15; HRS '209-29; am L 1976, c 205, '1(2); gen ch 1985; am L 1987, c 336, '7; am L 1990, c 293, '8; am L 1997, c 383, '38]

[[Chapter 247, AConveyance Tax@]]

'247-3
Exemptions.

    The tax imposed by section 247-1 shall not apply to:

1. Any document or instrument that is executed prior to January 1, 1967;
2. Any document or instrument that is given to secure a debt or obligation;
3. Any document or instrument that only confirms or corrects a deed, lease, sublease, assignment, transfer, or conveyance previously recorded or filed;
4. Any document or instrument between husband and wife, reciprocal beneficiaries, or parent and child, in which only a nominal consideration is paid;
5. Any document or instrument in which there is a consideration of $100 or less paid or to be paid;
6. Any document or instrument conveying real property that is executed pursuant to an agreement of sale, and where applicable, any assignment of the agreement of sale, or assignments thereof; provided that the taxes under this chapter have been fully paid upon the agreement of sale, and where applicable, upon such assignment or assignments of agreements of sale;
7. Any deed, lease, sublease, assignment of lease, agreement of sale, assignment of agreement of sale, instrument or writing in which the United States or any agency or instrumentality thereof or the State or any agency, instrumentality, or governmental or political subdivision thereof are the only parties thereto;
8. Any document or instrument executed pursuant to a tax sale conducted by the United States or any agency or instrumentality thereof or the State or any agency, instrumentality, or governmental or political subdivision thereof for delinquent taxes or assessments;
9. Any document or instrument conveying real property to the United States or any agency or instrumentality thereof or the State or any agency, instrumentality, or governmental or political subdivision thereof pursuant to the threat of the exercise or the exercise of the power of eminent domain;
10. Any document or instrument that solely conveys or grants an easement or easements;
11. Any document or instrument whereby owners partition their property, whether by mutual agreement or judicial action; provided that the value of each owner's interest in the property after partition is equal in value to that owner's interest before partition;
12. Any document or instrument between marital partners or reciprocal beneficiaries who are parties to a divorce action or termination of reciprocal beneficiary relationship that is executed pursuant to an order of the court in the divorce action or termination of reciprocal beneficiary relationship;
13. Any document or instrument conveying real property from a testamentary trust to a beneficiary under the trust;
14. Any document or instrument conveying real property from a grantor to the grantor's revocable living trust, or from a grantor's revocable living trust to the grantor as beneficiary of the trust;
15. Any document or instrument conveying real property, or any interest therein, from an entity that is a party to a merger or consolidation under chapter 415, 415A, 415B, 421, 421C, or 428 to the surviving or new entity; and
16. Any document or instrument conveying real property, or any interest therein, from a dissolving limited partnership to its corporate general partner that owns, directly or indirectly, at least a ninety per cent interest in the partnership, determined by applying section 318 (with respect to constructive ownership of stock) of the federal Internal Revenue Code of 1986, as amended, to the constructive ownership of interests in the partnership.

    [L 1966, c 10, pt of '1; HRS '247-3; am L 1968, c 5, ''4 to 8; am L 1993, c 195, '3; am L 1997, c 383, '39; am L 1999, c 295, '1]

[[Chapter 306, AUniversity Projects@]]

'306-1
Definitions.

    Whenever used in this chapter:

    "Board" or "board of regents" means the board of regents of the University of Hawaii, which, for the purposes of this chapter, is declared to be a political corporation within the meaning of that term as used in section 562(d) of title 48 of the United States Code.

    "Construction" includes acquisition, purchase, construction, reconstruction, remodeling, renovation, improvement, betterment, and extension;

    "construct" includes acquire, purchase, construct, reconstruct, remodel, renovate, improve, better and extend.

    "Cost of construction" includes all costs and estimated costs of the preparation and issuance of revenue bonds and the obtaining of a loan, and all costs and estimated costs of construction of a university project, and without limiting the foregoing, includes engineering, architectural, supervisory, inspectional, fiscal, and legal expenses; interest which it is estimated will accrue during the construction period and for six months thereafter on money obtained by loan or through the issuance of revenue bonds, or both; amounts necessary to establish or increase reserves; costs of utilities, equipment, fixtures and apparatus necessary or convenient for the use and occupancy of the university project and, if so determined by the board, the initial furnishings of the university project.

    "Cost of maintenance" includes all costs and estimated costs of the maintenance of a university project or university system, and without limiting the foregoing, includes all salaries, wages, and fees of officers, employees, and contractors of the board engaged in the maintenance of a university project or university system, the cost of all supplies and equipment, and all operational and administrative expenses.

    "Maintenance" includes repairs, upkeep, replacement, renewals, maintenance, operation and administration; "maintain" includes repair, keep up, replace, renew, maintain, operate and administer.

    "Reserves" means reserves required or permitted in the covenants in the resolution or resolutions of the board authorizing the obtaining of loans or issuance of revenue bonds under this chapter.

    "Revenue bonds" mean revenue bonds, interim certificates, notes, debentures, or other evidence of indebtedness of the board authorized by or issued under this chapter.

    "Revenue of the university" means all revenues of whatever nature received by the university, or which it is entitled to receive, other than

1. general appropriations,
2. taxes,
3. tuition fees, and
4. gifts the terms of which preclude their being used for payment of the cost of construction, cost of maintenance, or both, of a university project or university system.

    "Revenue of the university project or university system" means all revenues derived from the rentals, fees and charges imposed for the use or enjoyment of or the services furnished by a particular university project or university system, as the case may be.

    "University" means and includes the University of Hawaii, each community college established and governed by the board pursuant to chapter 305, and any and every other educational institution now or hereafter under the control of or governed by the board.

    "University athletic unit" means athletic facilities of every nature devoted either exclusively to use by the university, including its students, faculties, guests, employees, and their families including reciprocal beneficiaries, or both to university and non-university uses, for the enjoyment or utilization of, or for the privilege of observance of athletic contests or exhibitions conducted in or by means of, which facilities a fee is imposed or a charge made. A university athletic unit includes, but is not limited to, gymnasium, field house, stadium, playing field, baseball diamond, courts suitable for tennis, volleyball, and basketball, swimming and diving pools.

    "University dining unit" means a structure or facility suitable for the feeding and boarding of students enrolled in the university, members of the faculties of the university, guests, employees of the university, and members of the families including reciprocal beneficiaries of any such persons, for the use and services of which a fee is imposed or charge made. A university dining unit may be a separate structure or structures or included in another university project.

    "University health unit" means a facility for the treatment, diagnosing or prevention of illness of students enrolled in the university, members of the faculties of the university, persons temporarily visiting the university, employees of the university, and members of the families including reciprocal beneficiaries of any such persons, for the use and services of which a fee is imposed or charge made. A university health center includes, but is not limited to, health centers, infirmaries and clinics, and may be a separate structure or structures or included in another university project.

    "University housing unit" means a structure or structures suitable for the housing of and use and occupancy as a dwelling by students enrolled in the university, members of the faculties of the university, persons temporarily visiting the university at the invitation or request of the board, employees of the university, and members of the families including reciprocal beneficiaries of any such persons, for the use and occupancy of which a fee or rent is charged. A university housing unit includes, but is not limited to, dormitories, apartments, and other multiple unit buildings, houses and other single unit buildings.

    "University parking unit" means a facility for the parking or storage, or both, of vehicles owned or used by students enrolled in the university, members of the faculties of the university, persons temporarily visiting the university, employees of the university, and members of the families including reciprocal beneficiaries of any such person, for the use, services or occupancy of which a fee is imposed or charge made. A university parking unit includes, but is not limited to, parking spaces on streets, alleys, drives and other roadways under the jurisdiction of the board, paved or unpaved surface areas or lots, and subsurface, surface or above surface structure or structures, and may be a separate structure or structures or included in another university project.

    "University project" means a university athletic unit, university dining unit, university health unit, university housing unit, university parking unit, university student center, and any other undertaking or improvement capable of producing a revenue constructed, maintained, or both, by the board, as furtherance of the purposes of the university, and for the use and services of which fees are imposed or charges made. A university project shall include, but not be limited to, all land, fixtures, appurtenances, improvements, utilities, equipment, and furnishings necessary or convenient for the use and occupancy of a university project for the purposes for which it was constructed or is used. A university project shall be a public improvement or public undertaking within the meaning of section 562(d) of title 48 of the United States Code.

    "University student center" means a structure or structures suitable for student activities or endeavors, such as, but not limited to, meetings, organizations, publications, and recreation, for the use and services of which a fee is imposed or a charge made. A university student center includes, but is not limited to, student unions, bookstores and snack bars, and may be a separate structure or structures or included in another university project.

    "University system" means two or more university projects operated and maintained jointly as a system. A university system may include various university projects on any one or more of the areas under the jurisdiction of the board and may include university projects of any one or more of the educational institutions under the control of or governed by the board, including the University of Hawaii.

    [L 1947, c 141, pt of '1; RL 1955, '44-60; HRS '306-1; am L 1971, c 141, '1(a); am L 1997, c 383, '40]

[[Chapter 323, AHospitals and Medical Facilities@]]

['323-2]
Hospital visitation policy and extension of authority to reciprocal beneficiaries.

    A reciprocal beneficiary, as defined in chapter 572C, of a patient shall have the same rights as a spouse with respect to visitation and making health care decisions for the patient.

    [L 1997, c 383, '3]

[[Chapter 324, AMedical Research; Morbidity and Mortality Information@]]

'324-22
Identity of persons studied and material, restrictions.

    (a) The material collected under this part shall be used or published only for the purpose of advancing medical research, medical education, or education of the public in the interest of reducing morbidity or mortality; provided that the Hawaii Tumor Registry may reveal all relevant information to a patient's attending physician.

    (b) The identity, or any group of facts which tends to lead to the identity, of any person whose condition or treatment has been studied shall be confidential and shall not be revealed in any report or any other matter prepared, released, or published. Researchers may, however, use the names of persons when requesting additional information for research studies approved by the cancer commission; provided that when a request for additional information is to be made directly from a patient, the researcher shall first obtain approval for such request from the patient's attending physician.

    (c) The use of such additional information obtained by researchers shall also be governed by subsection (a) and in addition, where the patient is still living and the information is to be obtained directly from the patient, the researcher shall first obtain the approval of the patient, the patient's immediate family including a reciprocal beneficiary, or attending physician, in that order of priority.

    [L 1973, c 25, pt of '1; gen ch 1985; am L 1997, c 383, '41]

[[Chapter 327, AMedical and Research Use of Bodies@]]

'327-3
Making, revoking, and objecting to anatomical gifts, by others.

    (a) Any member of the following classes of persons, in the order of priority listed, may make an anatomical gift of all or a part of the decedent's body for an authorized purpose, unless the decedent, at the time of death, has made an unrevoked refusal to make that anatomical gift:

1. The spouse or reciprocal beneficiary of the decedent;
2. An adult son or daughter of the decedent;
3. Either parent of the decedent;
4. An adult brother or sister of the decedent;
5. A grandparent of the decedent; and
6. A guardian of the person of the decedent at the time of death.

    (b) An anatomical gift may not be made by a person listed in subsection (a) if:

1. A person in a prior class is available at the time of death to make an anatomical gift;
2. The person proposing to make an anatomical gift knows of a refusal or contrary indications by the decedent; or
3. The person proposing to make an anatomical gift knows of an objection to making an anatomical gift by a member of the person's class or a prior class.

    (c) An anatomical gift by a person authorized under subsection (a) shall be made by:

1. A document of gift signed by the person; or
2. The person's telegraphic, recorded telephonic, or other recorded message, or other form of communication from the person that is contemporaneously reduced to writing and signed by the recipient.

    (d) An anatomical gift by a person authorized under subsection (a) may be revoked by any member of the same or a prior class if, before procedures have begun for the removal of a part from the body of the decedent, the physician, surgeon, technician, or enucleator removing the part knows of the revocation.

    (e) A failure to make an anatomical gift under subsection (a) is not an objection to the making of an anatomical gift.

    [L 1988, c 267, pt of '1; am L 1997, c 383, '42]

'327-5
REPEALED.
L 1999, c 88, '4(2).

    [[This law originally dealt with the contacting of the family to see if they would donate the deceased=s body or organs. It looked towards Section 327-3, earlier, for a listing of order of family members who had authority to donate. In 1997 this Section was formally amended so that Afamily@ explicitly included the deceased=s reciprocal beneficiary. In 1999 the Legislature extensively overhauled the whole business concerning donated organs. Part of the overhaul was the repeal of this law and its replacement with the following law which again refers to family, but evidently inadvertently left off an explicit inclusion of the reciprocal beneficiary. This does not mean that reciprocal beneficiaries are now not recognized. That is because this new law again is dependent upon Section 327-3, earlier, for a listing of order of family members who have authority to donate, and reciprocal beneficiaries are at the top of that list.]]

['327-5.5]
Required referral.

    (a) On or before the occurrence of each death in an acute care hospital, the hospital shall report to the local organ procurement organization to determine the suitability of the individual for organ, tissue, and eye donation. This contact shall be noted on the patient's medical record.

    (b) Each acute care hospital shall develop no later than July 1, 2000, with the concurrence of the hospital medical staff, a protocol for identifying potential organ and tissue donors. The protocol shall require that at or near the time of every individual death, the acute care hospital shall contact by telephone the local organ procurement organization to determine suitability for organ, tissue, and eye donation of the individual. Each hospital shall designate a person to contact the local organ procurement organization to provide the appropriate data about the individual necessary to begin assessment for suitability for recovery of anatomical gifts. The acute care hospital's protocol shall specify the kind of information that shall be available prior to making the contact, including the patient's age and cause of death. The local organ procurement organization, in consultation with the patient's attending physician or designee, shall determine the suitability for donation. If the local organ procurement organization in consultation with the patient's attending physician or designee determines that donation is not appropriate based on established medical criteria, this shall be noted by the hospital personnel on the patient's record, and no further action shall be necessary. If the local organ procurement organization in consultation with the patient's attending physician or designee determines that the patient is a suitable candidate for anatomical donation, the acute care hospital and the local organ procurement organization, separately or together, shall initiate a request by a designated requester, who shall be a person trained by the local organ procurement organization. The protocol shall encourage discretion and sensitivity to family circumstances in all discussions regarding donations of tissue or organs. The protocol shall take into account the deceased individual's religious beliefs or nonsuitability for organ and tissue donation.

    (c) The local organ procurement organization shall conduct annual death record reviews at each acute care hospital to determine compliance with required referral. There shall be no cost assessed against a hospital for a review of death records pursuant to this subsection.

    (d) As used in this section:

"Acute care hospital" means a hospital, as defined in section 327-1, other than a nursing facility or other long-term care facility.

"Designated requester" means a person who has completed a course offered by an organ procurement organization on how to approach families and request organ or tissue donation.

"Organ procurement organization" shall have the same meaning as procurement organization in section 327-1.

    [L 1999, c 88, pt of '3]

[[annotations:]]
Note

Hawaii organ and tissue education special fund (effective July 1, 2000 and repealed June 30, 2003). L 1999, c 88, pt of '3.

[[Chapter 327E, AUniform Health-Care Decisions Act (Modified)@]]

[[Note: this Section was not included in the original 1997 package of laws establishing reciprocal beneficiaries. Instead, it was a new law added to the HRS in 1999.]]

['327E-2]
Definitions.

    Whenever used in this chapter, unless the context otherwise requires:

    "Advance health-care directive" means an individual instruction or a power of attorney for health care.

    "Agent" means an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power.

    "Best interest" means that the benefits to the individual resulting from a treatment outweigh the burdens to the individual resulting from that treatment and shall include:

1. The effect of the treatment on the physical, emotional, and cognitive functions of the patient;
2. The degree of physical pain or discomfort caused to the individual by the treatment or the withholding or withdrawal of the treatment;
3. The degree to which the individual's medical condition, the treatment, or the withholding or withdrawal of treatment, results in a severe and continuing impairment;
4. The effect of the treatment on the life expectancy of the patient;
5. The prognosis of the patient for recovery, with and without the treatment;
6. The risks, side effects, and benefits of the treatment or the withholding of treatment; and
7. The religious beliefs and basic values of the individual receiving treatment, to the extent that these may assist the surrogate decision-maker in determining benefits and burdens.

    "Capacity" means an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision.

    "Emancipated minor" means a person under eighteen years of age who is totally self-supporting.

    "Guardian" means a judicially appointed guardian or conservator having authority to make a health-care decision for an individual.

    "Health care" means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual's physical or mental condition, including:

1. Selection and discharge of health-care providers and institutions;
2. Approval or disapproval of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and
3. Direction to provide, withhold, or withdraw artificial nutrition and hydration; provided that withholding or withdrawing artificial nutrition or hydration is in accord with generally accepted health care standards applicable to health-care providers or institutions.

    "Health-care decision" means a decision made by an individual or the individual's agent, guardian, or surrogate, regarding the individual's health care.

    "Health-care institution" means an institution, facility, or agency licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business.

    "Health-care provider" means an individual licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession.

    "Individual instruction" means an individual's direction concerning a health-care decision for the individual.

    AInterested persons" means the patient's spouse, unless legally separated or estranged, a reciprocal beneficiary, any adult child, either parent of the patient, an adult sibling or adult grandchild of the patient, or any adult who has exhibited special care and concern for the patient and who is familiar with the patient's personal values.

    APerson" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

    APhysician" means an individual authorized to practice medicine or osteopathy under chapter 453 or 460.

    APower of attorney for health care" means the designation of an agent to make health-care decisions for the individual granting the power.

    APrimary physician" means a physician designated by an individual or the individual's agent, guardian, or surrogate, to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility.

    AReasonably available" means able to be contacted with a level of diligence appropriate to the seriousness and urgency of a patient's health care needs, and willing and able to act in a timely manner considering the urgency of the patient's health care needs.

    AState" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States.

    ASupervising health-care provider" means the primary physician or the physician's designee, or the health-care provider or the provider's designee who has undertaken primary responsibility for an individual's health care.

    ASurrogate" means an individual, other than a patient's agent or guardian, authorized under this chapter to make a health-care decision for the patient.

    [L 1999, c 169, pt of '1]

[[Chapter 334, AMental Health, Mental Illness, Drug Addiction, and Alcoholism@]]
[[Part I, AGeneral and Administrative Procedures@]]

'334-6
Fees; payment of expenses for treatment services.

    (a) Pursuant to chapter 91, the director shall establish reasonable charges for treatment services and may make collections on such charges. In making the collections on such charges the director shall take into consideration the financial circumstances of the patient and the patient's family including a reciprocal beneficiary, and no collections shall be made where in the judgment of the director, such collections would tend to make the patient or the patient's family including a reciprocal beneficiary, a public charge or deprive the patient and the patient's family including a reciprocal beneficiary, of necessary support.

    (b) Every person hospitalized at a psychiatric facility or receiving treatment services through a community mental health center under the jurisdiction of the State or a county, or at a psychiatric facility or through a community mental health center which derives more than fifty per cent of its revenues from the general fund of the State, or pursuant to contract with the director under section 334-2.5, shall be liable for the expenses attending their reception, maintenance, and treatment and any property not exempt from execution belonging to the person shall be subject to sequestration for the payment of the expenses. Every parent or legal guardian of a patient who is a minor and every spouse or reciprocal beneficiary of a patient shall be liable for the expenses attending the reception, maintenance, and treatment of that minor child or spouse or reciprocal beneficiary who is hospitalized at a psychiatric facility or receiving treatment through a community mental health center under the jurisdiction of the State or a county, or at a psychiatric facility or through a community mental health center which derives more than fifty per cent of its revenues from the general fund of the State, or pursuant to contract with the director under section 334-2.5.

    [L 1967, c 259, pt of '1; HRS '334-6; am L 1971, c 153, '1; am L 1972, c 80, '1; am L 1991, c 243, '2; gen ch 1992; am L 1997, c 383, '44; am L 1999, c 119, '5]

[[Chapter 334, AMental Health, Mental Illness,
Drug Addiction, and Alcoholism@ (continued)]]
[[Part IV, AAdmission to Psychiatric Facility@]]

'334-59
Emergency examination and hospitalization.

    (a) Initiation of proceedings. An emergency admission may be initiated as follows:

1. If a police officer has reason to believe that a person is imminently dangerous to self or others, or is gravely disabled, or is obviously ill, the officer shall call for assistance from the mental health emergency workers designated by the director. Upon determination by the mental health emergency workers that the person is imminently dangerous to self or others, or is gravely disabled, or is obviously ill, the person shall be transported by ambulance or other suitable means, to a licensed psychiatric facility for further evaluation and possible emergency hospitalization. A police officer may also take into custody and transport to any facility designated by the director any person threatening or attempting suicide. The officer shall make application for the examination, observation, and diagnosis of the person in custody. The application shall state or shall be accompanied by a statement of the circumstances under which the person was taken into custody and the reasons therefor which shall be transmitted with the person to a physician or psychologist at the facility.
2. Upon written or oral application of any licensed physician, psychologist, attorney, member of the clergy, health or social service professional, or any state or county employee in the course of employment, a judge may issue an ex parte order orally, but shall reduce the order to writing by the close of the next court day following the application, stating that there is probable cause to believe the person is mentally ill or suffering from substance abuse, is imminently dangerous to self or others, or is gravely disabled, or is obviously ill, and in need of care or treatment, or both, giving the findings on which the conclusion is based, and directing that a police officer or other suitable individual take the person into custody and deliver the person to the nearest facility designated by the director for emergency examination and treatment. The ex parte order shall be made a part of the patient's clinical record. If the application is oral, the person making the application shall reduce the application to writing and shall submit the same by noon of the next court day to the judge who issued the oral ex parte order. The written application shall be executed subject to the penalties of perjury but need not be sworn to before a notary public.
3. Any licensed physician or psychologist who has examined a person and has reason to believe the person is:
   1. Mentally ill or suffering from substance abuse;
   2. Imminently dangerous to self or others, or is gravely disabled, or is obviously ill; and
   3. In need of care or treatment;
   may direct transportation, by ambulance or other suitable means, to a licensed psychiatric facility for further evaluation and possible emergency hospitalization. A licensed physician may administer such treatment as is medically necessary, for the person's safe transportation. A licensed psychologist may administer such treatment as is psychologically necessary.

    (b) Emergency examination. A patient who is delivered for emergency examination and treatment to a facility designated by the director shall be examined by a licensed physician without unnecessary delay, and may be given such treatment as is indicated by good medical practice. A psychiatrist or psychologist may further examine the patient to diagnose the presence or absence of a mental disorder, assess the risk that the patient may be dangerous to self or others, or is gravely disabled, or is obviously ill, and assess whether or not the patient needs to be hospitalized.

    (c) Release from emergency examination. If the physician who performs the emergency examination, in consultation with a psychologist if applicable, concludes that the patient need not be hospitalized, the patient shall be discharged immediately unless the patient is under criminal charges, in which case the patient shall be returned to the custody of a law enforcement officer.

    (d) Emergency hospitalization. If the physician or the psychologist who performs the emergency examination has reason to believe that the patient is:

1. Mentally ill or suffering from substance abuse;
2. Imminently dangerous to self or others, or is gravely disabled, or is obviously ill; and
3. In need of care or treatment, or both; the physician or the psychologist may direct that the patient be hospitalized on an emergency basis or cause the patient to be transferred to another psychiatric facility for emergency hospitalization, or both.

The patient shall have the right immediately upon admission to telephone the patient's guardian or a family member including a reciprocal beneficiary, or an adult friend and an attorney. If the patient declines to exercise that right, the staff of the facility shall inform the adult patient of the right to waive notification to the family including a reciprocal beneficiary, and shall make reasonable efforts to ensure that the patient's guardian or family including a reciprocal beneficiary, is notified of the emergency admission but the patient's family including a reciprocal beneficiary, need not be notified if the patient is an adult and requests that there be no notification. The patient shall be allowed to confer with an attorney in private.

    (e) Release from emergency hospitalization. If at any time during the period of emergency hospitalization the responsible physician concludes that the patient no longer meets the criteria for emergency hospitalization the physician shall discharge the patient. If the patient is under criminal charges, the patient shall be returned to the custody of a law enforcement officer. In any event, the patient must be released within forty-eight hours of the patient's admission, unless the patient voluntarily agrees to further hospitalization, or a proceeding for court-ordered evaluation or hospitalization, or both, is initiated as provided in section 334-60.3. If that time expires on a Saturday, Sunday, or holiday, the time for initiation is extended to the close of the next court day. Upon initiation of the proceedings the facility shall be authorized to detain the patient until further order of the court.

    [L 1976, c 130, pt of '4; am L 1977, c 76, pt of '3; am L 1984, c 188, '1; am L 1985, c 68, '6; am L 1986, c 335, ''2, 3; am L 1992, c 138, '1; gen ch 1993; am L 1994, c 58, '1; am L 1997, c 383, '45]

[[annotations:]]
Case Notes

Several provisions of section held to violate FOURTEENTH Amendment due process rights. 438 F. Supp. 1106.

'334-60.4
Notice; waiver of notice; hearing on petition; waiver of hearing on petition for involuntary hospitalization.

    (a) The court shall set a hearing on the petition and notice of the time and place of such hearing shall be served in accordance with, and to those persons specified in, a current order of commitment. If there is no current order of commitment, notice of the hearing shall be served personally on the subject of the petition and served personally or by certified or registered mail, return receipt requested, deliverable to the addressee only, on the subject's spouse or reciprocal beneficiary, legal parents, adult children, and legal guardian, if one has been appointed. If the subject of the petition has no living spouse or reciprocal beneficiary, legal parent and adult children, or if none can be found, notice of the hearing shall be served on at least one of the subject's closest adult relatives if any can be found. Notice of the hearing shall also be served on the public defender, attorney for the subject of the petition, or other court-appointed attorney as the case may be. If the subject of the petition is a minor, notice of the hearing shall also be served upon the person who has had the principal care and custody of the minor during the sixty days preceding the date of the petition if such person can be found within the State. Notice shall also be given to such other persons as the court may designate.

    (b) The notice shall include the following:

1.  The date, time, place of hearing, a clear statement of the purpose of the proceedings and of possible consequences to the subject; and a statement of the legal standard upon which commitment is authorized;
2. A copy of the petition;
3. A written notice, in plain and simple language, that the subject may waive such a hearing by voluntarily agreeing to hospitalization, or with the approval of the court, to some other form of treatment;
4. A filled-out form indicating such waiver;
5. A written notice, in plain and simple language, that the subject or the subject's guardian or representative may apply at any time for a hearing on the issue of the subject's need for hospitalization, if the subject has previously waived such a hearing;
6. Notice that the subject is entitled to the assistance of an attorney and that the public defender has been notified of these proceedings;
7. Notice that if the subject does not want to be represented by the public defender the subject may contact the subject's own attorney;
8. Notice, if such be the case, that the petitioner intends to adduce evidence to show that the subject of the petition is an incapacitated or protected person, or both, under Article V of chapter 560, and whether or not appointment of a guardian of the person is sought at the hearing. If appointment of a guardian of the person is to be recommended, and a nominee is known at the time the petition is filed, the identity of the nominee shall be disclosed.

    (c) If the subject executes and files a waiver of the hearing, upon acceptance by the court following a court determination that the person understands the person's rights and is competent to waive them, the court shall order the subject to be committed to a facility that has agreed to admit the subject as an involuntary patient or, if the subject is at such a facility, that the subject be retained there.

    [L 1984, c 188, pt of '3; gen ch 1985; am L 1997, c 383, '46]