BILL NUMBER: AB 140 CHAPTERED
BILL TEXT
CHAPTER 668
FILED WITH SECRETARY OF STATE OCTOBER 9, 2013
APPROVED BY GOVERNOR OCTOBER 9, 2013
PASSED THE SENATE SEPTEMBER 11, 2013
PASSED THE ASSEMBLY SEPTEMBER 11, 2013
AMENDED IN SENATE JULY 2, 2013
AMENDED IN SENATE JUNE 14, 2013
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, 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 by overcoming that person's free will 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, the actions or tactics used by the
influencer, and the equity of the result to be considered. The bill
would specify that an inequitable result, without more, is not
sufficient to prove undue influence.
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.
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 by overcoming
that person's free will 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. Evidence of vulnerability may
include, but is not limited to, incapacity, illness, disability,
injury, age, education, impaired cognitive function, emotional
distress, isolation, or dependency, and whether the influencer knew
or should have known of the alleged victim's vulnerability.
(2) The influencer's apparent authority. Evidence of apparent
authority may include, but is not limited to, status as a fiduciary,
family member, care provider, health care professional, legal
professional, spiritual adviser, expert, or other qualification.
(3) The actions or tactics used by the influencer. Evidence of
actions or tactics used may include, but is not limited to, all of
the following:
(A) Controlling necessaries of life, medication, the victim's
interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(C) Initiation of changes in personal or property rights, use of
haste or secrecy in effecting those changes, effecting changes at
inappropriate times and places, and claims of expertise in effecting
changes.
(4) The equity of the result. Evidence of the equity of the result
may include, but is 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) Evidence of an inequitable result, without more, is not
sufficient to prove undue influence.
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.