Bill Text: CA SB278 | 2023-2024 | Regular Session | Amended

California Senate Bill 278

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

Bill Title: Elder abuse: emergency financial contact program.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Vetoed) 2024-09-28 - In Senate. Consideration of Governor's veto pending. [SB278 Detail]

Download: California-2023-SB278-Amended.html

Amended IN Senate May 04, 2023

Amended IN Senate April 10, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 278

Introduced by Senator Dodd
(Coauthors: Senators Min and Skinner)
(Coauthors: Assembly Members Bonta, Gipson, Muratsuchi, and Quirk-Silva)

February 01, 2023

An act to amend Section 15610.30 of the Welfare and Institutions Code, relating to elder abuse.

LEGISLATIVE COUNSEL'S DIGEST

SB 278, as amended, Dodd. Elder abuse.

Existing law, the Elder Abuse and Dependent Adult Civil Protection Act, establishes various procedures for the reporting, investigation, and prosecution of elder and dependent adult abuse. Existing law defines financial abuse for those purposes and provides that it 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 for a wrongful use or with intent to defraud, or both. Existing law requires a person or entity to be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes the property and the person or entity knew or should have known that the conduct is likely to be harmful to the elder or dependent adult. Existing law requires the court to award specified costs if a defendant is found liable for financial abuse, as specified.

Existing law makes the failure 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.

This bill would add to the definition of “financial abuse” knowingly aiding or and abetting in the 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. The bill would also define “assists” for those purposes. The bill would also specifically state that the above-described provision regarding when a person or entity is deemed to have taken property for a wrongful use includes when a person or entity assisted in taking, secreting, appropriating, obtaining, or retaining property for a wrongful use. The changes made by this bill would not apply to criminal prosecutions and, therefore, the bill would not expand the above-described crime.

Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

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) Knowingly aids or and abets in the 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.

(4) 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 or assisted in taking, secreting, appropriating, obtaining, or retaining property for a wrongful use, if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property or assists in taking, secreting, appropriating, obtaining, or retaining 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.

(e) For the purposes of this section, “assists” means ~~engaging in any of the following acts by a person who is a mandated reporter pursuant to Section 15630, 15630.1, or 15630.2:~~ to engage in either of the following:

(1) ~~Executing~~ If a person is a mandated reporter pursuant to Section 15630.1 or 15630.2, executing a transaction with or processing a transaction on behalf of an elder or dependent adult for which both of the following apply:

(A) The elder or dependent adult interacts with the person who is a mandated reporter in the process of requesting, initiating, or completing the transaction.

(B) (i) The mandated reporter fails to act as a reasonable person in a like position would, considering the surrounding facts and circumstances, including the transaction history of the elder or dependent adult, whether the transaction is aligned with prevailing business practices, and whether the elder or dependent adult exhibits multiple red flags, in executing the transaction with or processing the transaction on behalf of the elder or dependent adult.

(ii) For the purposes of this subparagraph, “red flags” refers to the behavioral and financial red flags enumerated in Elder Financial Exploitation Advisory in FinCEN Advisory FIN-2022-A002 by the United States Department of the Treasury.

(2) ~~The~~ If a person is a mandated report pursuant to Section 15630, the mandated reporter fails to act as a reasonable person in a like position would, considering the surrounding facts and circumstances, including their past interactions with the elder or dependent adult, the degree to which the elder or dependent adult’s behavior appeared different or suspicious, and any information the elder or dependent adult provided to the mandated reporter, as well as any trainings the mandated reporter has taken or should have taken on the subjects of elder or dependent adult abuse and financial abuse. including, but not limited to, any of the following:

(A) The vulnerability of the elder or dependent adult, taking into account the evidence described in paragraph (1) of subdivision (a) of Section 15610.70.
(B) The extent to which the elder or dependent adult relied on the mandated reporter to handle their finances or for financial advice or financial decisions.
(C) Any information the elder or dependent adult provided to the mandated reporter about the situation.
(D) The mandated reporter’s past interactions with the elder or dependent adult and whether the elder or dependent adult’s behavior was markedly different than in their prior interactions with the mandated reporter.
(E) Whether the mandated reporter has a fiduciary duty to the elder or dependent adult.
(F) Any instructions or information the mandated reporter has been given about the elder or dependent adult’s capacity or ability to make decisions.
(G) Any trainings the mandated reporter has taken or should have taken, or information the mandated reporter has received or should have received, on the subjects of elder or dependent adult abuse and financial abuse.

(f) The changes made by the act that added this subdivision do not apply to criminal prosecutions pursuant to Section 15630.

(g) Nothing in this section is intended to, nor shall it be construed to, prevent or significantly interfere with any financial institution’s exercise of its powers under federal law.