Bill Text: CA AB140 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Undue influence.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2013-10-10 - Chaptered by Secretary of State - Chapter 668, Statutes of 2013. [AB140 Detail]

Download: California-2013-AB140-Amended.html

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BILL NUMBER: AB 140	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 13, 2013
	AMENDED IN ASSEMBLY  MAY 6, 2013
	AMENDED IN ASSEMBLY  APRIL 10, 2013

INTRODUCED BY   Assembly Member Dickinson
    (   Coauthor:   Assembly Member  
Gatto   ) 

                        JANUARY 17, 2013

   An act to add Section 86 to the Probate Code, and to amend Section
15610.30 of, and to add Section 15610.70 to, the Welfare and
Institutions Code, relating to undue influence.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 140, as amended, Dickinson. Undue influence.
   Existing law provides that financial abuse of an elder or
dependent adult occurs when, among other instances, a person or
entity takes, secretes, appropriates, obtains, or retains, or assists
in taking, secreting, appropriating, obtaining, or retaining, real
or personal property of an elder or dependent adult by undue
influence, as defined.
   Existing law makes failing to report, or impeding or inhibiting a
report of, among other things, financial abuse of an elder or
dependent adult, in violation of certain reporting requirements a
misdemeanor. Existing law also makes it a misdemeanor for any
caretaker of an elder or dependent adult to violate any provision of
law proscribing theft or embezzlement, with respect to the property
of that elder or dependent adult.
   This bill would change the definition of undue influence to mean
excessive persuasion that causes another person to act or refrain
from acting and results in inequity. The bill would require, in
determining whether the result was produced by undue influence, the
vulnerability of the victim, the influencer's apparent authority and
whether the influencer knew or should have known of the victim's
vulnerability, the actions or tactics used by the influencer, and the
equity of the result to be considered. The bill would specify that
nothing in these provisions be construed to imply that an inequitable
result, without more, will constitute undue influence or excessive
persuasion.
   By changing the definition of a crime, this bill would impose a
state-mandated local program.
    Existing law prohibits the use of undue influence and establishes
protections for individuals unable to resist undue influence in
various areas of the law, including wills, trusts, and
conservatorships.
   This bill would define undue influence for those purposes without
superseding or interfering with the common law of undue influence.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement. This bill would provide that no reimbursement is
required by this act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 86 is added to the Probate Code, to read:
   86.  "Undue influence" has the same meaning as defined in Section
15610.70 of the Welfare and Institutions Code. It is the intent of
the Legislature that this section supplement the common law meaning
of undue influence without superseding or interfering with the
operation of that law.
  SEC. 2.  Section 15610.30 of the Welfare and Institutions Code is
amended to read:
   15610.30.  (a) "Financial abuse" of an elder or dependent adult
occurs when a person or entity does any of the following:
   (1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful use
or with intent to defraud, or both.
   (2) Assists in taking, secreting, appropriating, obtaining, or
retaining real or personal property of an elder or dependent adult
for a wrongful use or with intent to defraud, or both.
   (3) Takes, secretes, appropriates, obtains, or retains, or assists
in taking, secreting, appropriating, obtaining, or retaining, real
or personal property of an elder or dependent adult by undue
influence, as defined in Section 15610.70.
   (b) A person or entity shall be deemed to have taken, secreted,
appropriated, obtained, or retained property for a wrongful use if,
among other things, the person or entity takes, secretes,
appropriates, obtains, or retains the property and the person or
entity knew or should have known that this conduct is likely to be
harmful to the elder or dependent adult.
   (c) For purposes of this section, a person or entity takes,
secretes, appropriates, obtains, or retains real or personal property
when an elder or dependent adult is deprived of any property right,
including by means of an agreement, donative transfer, or
testamentary bequest, regardless of whether the property is held
directly or by a representative of an elder or dependent adult.
   (d) For purposes of this section, "representative" means a person
or entity that is either of the following:
   (1) A conservator, trustee, or other representative of the estate
of an elder or dependent adult.
   (2) An attorney-in-fact of an elder or dependent adult who acts
within the authority of the power of attorney.
  SEC. 3.  Section 15610.70 is added to the Welfare and Institutions
Code, to read:
   15610.70.  (a) "Undue influence" means excessive persuasion that
causes another person to act or refrain from acting and results in
inequity. In determining whether a result was produced by undue
influence, all of the following shall be considered:
   (1) The vulnerability of the victim, including, but not limited
to, incapacity, illness, disability, injury, age, education, impaired
cognitive function, emotional distress, isolation, or dependency.
   (2) The influencer's apparent authority, including, but not
limited to, status as a fiduciary, family member, care provider,
health care professional, legal professional, spiritual adviser,
expert, or other qualification, and whether the influencer knew or
should have known of the victim's vulnerability.
   (3) The actions or tactics used by the influencer, including, but
not limited to, controlling necessaries, medication, the victim's
interactions with others, or access to information, sleep
deprivation, use of affection, intimidation, or coercion, initiation
of changes in personal or property rights, use of haste or secrecy in
effecting those changes, effecting changes at inappropriate times
and places, or claims of expertise in effecting changes.
   (4) The equity of the result, including, but not limited to, the
economic consequences to the victim, any divergence from the victim's
prior intent or course of conduct or dealing, the relationship of
the value conveyed to the value of any services or consideration
received, or the appropriateness of the change in light of the length
and nature of the relationship.
   (b)  Nothing in this   This  section
shall  not  be construed to imply that an inequitable
result, without more, establishes the element of undue influence or
excessive persuasion.
  SEC. 4.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.