BILL ANALYSIS
AB 2611
Page 1
Date of Hearing: April 20, 2004
Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2611 (Simitian) - As Amended: April 16, 2004
SUMMARY : Makes various changes to the Elder Abuse and
Dependent Adult Civil Protection Act (EADACPA) relating to
"financial abuse" of an elder or dependent adult. Specifically,
this bill :
1)Deletes the requirement that an abuser have knowledge that the
victim of elder abuse or neglect is an elder or dependent
adult.
2)Adds the offense of failure to report elder abuse to the
statute of limitations subdivision which tolls the statute of
limitations until the offense is discovered, but only allows
the statute of limitation to be tolled for no more than three
years.
3)Adds failure to report an instance of elder abuse to the list
of offenses where the statute of limitation does not commence
to run until the commission of the offense is discovered.
4)Revises the definition of "financial abuse of an elder or
dependent adult" contained in EADACPA by eliminating the
intent to defraud requirement, replaces the term "bad faith"
with the term "wrongfully", and adds a reasonableness standard
to the definition of the term "wrongfully".
5)Makes the following financial institutions mandated financial
abuse reporters for the purposes of EADACPA:
a) Institutions subject to regulation by the Commissioner
of Financial Institutions (depository institutions doing
business in California); and,
b) Federally chartered financial institutions subject to
regulation by:
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i) The Comptroller of the Currency (federally chartered
banks);
ii) The Office of Thrift Supervision (federally charter
thrifts); and,
iii) The National Credit Union Administration (credit
unions).
6)Lowers the evidentiary standard from "clear and convincing
evidence" to "a preponderance of the evidence" for determining
if the defendant is liable for financial abuse and has
demonstrated or exhibited recklessness, oppression, fraud, or
malice in the commission of the abuse which allows for the
imposition of punitive damages.
EXISTING LAW :
1)Provides that an elder is any person who is 65 years of age or
older. [Penal Code Section 368(h).]
2)Defines "dependent adult" as any person between the ages of 18
and 64 who has physical or mental limitations which restrict
his or her ability to carry out normal activities or to
protect his or her rights including, but not limited to,
persons who have physical or developmental disabilities or
whose physical or mental abilities have diminished because of
age. [Penal Code Section 368(h).]
3)States that a "caretaker" is any person who has the care,
custody, or control of, or who stands in a position of trust
with, an elder or a dependent adult. [Penal Code Section
368(i).]
4)Provides that any person who is not a caretaker who violates
any provision of law proscribing theft or embezzlement with
respect to the property of an elder or dependent adult and who
knows, or reasonably should know, that the victim is an elder
or dependent adult is punishable as follows [Penal Code
Section 368(d)]:
a) When the money, labor, or real or personal property
taken is of a value exceeding $400, the crime is punishable
by imprisonment in the county jail not exceeding one year
or in the state prison for two, three, or four years; or,
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b) When the money, labor, or real or personal property
taken is of a value not exceeding $400, the crime is
punishable by a fine not exceeding $1,000; by imprisonment
in the county jail not exceeding one year; or by both that
fine and imprisonment.
5)States that any caretaker of an elder or a dependent adult who
violates any provision of law proscribing theft or
embezzlement with respect to the property of that elder or
dependent adult is punishable as follows [Penal Code Section
368(e)]:
a) When the property taken is of a value exceeding $400,
the crime is punishable by imprisonment in the county jail
not exceeding one year or in the state prison for two,
three, or four years; or,
b) When the property taken is of a value not exceeding
$400, the crime is punishable by a fine not exceeding
$1,000; by imprisonment in the county jail not exceeding
one year; or by both that fine and imprisonment.
6)Requires any mandated reporter under EADACPA who, within the
scope of his or her employment, observes, has knowledge of
physical abuse, financial abuse or neglect, or is told by an
elder or dependent adult that he or she has experienced abuse,
or reasonably suspects abuse, to immediately report the known
or suspected abuse, as specified. [Welfare and Institutions
Code Section 15630(b)(1).]
7)Defines a "mandated reporter" as any person who has assumed
the care or custody of an elder or dependent adult, including
administrators, supervisors, or licensed staff of a public or
private facility that provides care to elder or dependent
adults, elder or dependent adult care custodian, health
practitioner, clergy member, employee of county adult
protective services, or a local law enforcement agency.
[Welfare and Institutions and Code Section 15630(a)(1).]
8)Provides that failure to report elder abuse under the mandated
reporting requirements, is a misdemeanor, punishable by
imprisonment in the county jail not to exceed six months; by a
fine of not more than $1,000; or by both. Failure to report
abuse that results in a death or great bodily injury shall be
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punished by imprisonment in the county jail not to exceed one
year; by a fine not to exceed $5,000; or by both. [Welfare
and Institutions Code Section 15630(h).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill is an
omnibus bill package designed to combat the growing problem of
elder abuse in California. The provisions in this bill came
from people on the front lines of elder abuse. County
counsels, district attorneys, adult protective services, the
Bureau of Medi-Cal Fraud and Abuse all gave more than six
hours of testimony in hearings held in San Jose and Santa
Cruz.
"This bill toughens the law with respect to reporting and
prosecuting elder abuse. This bill requires financial
institutions to report suspected cases of financial abuse to
local law enforcement authorities and gives prosecutors
stronger tools to go after elder abusers and recoup financial
losses to an elder."
2)Statute of Limitations : This bill adds the offense of failure
to report abuse of an elder or dependent adult [Welfare and
Institutions Code Section15630(h)] to the list of
theft-related offenses for which the statute of limitations
does not commence to run until discovery of the offense [Penal
Code Section 803(c).] Penal Code Section 803(c) states in
pertinent part, "This subdivision applies to an offense
punishable by imprisonment in the state prison (felony), a
material element of which is fraud or breach of a fiduciary
obligation". Failure to report elder or dependent abuse
[Welfare and Institutions Code Section 15630(h)] is a
misdemeanor punishable by imprisonment in the county jail and
is not fraud or theft related. The rationale behind Penal
Code Section 803(c) is that fraud and theft-related offenses
are often not committed in the presence of the victim and not
discovered until after the statute of limitations has run. A
mandated reporter of physical elder abuse or neglect is aware
of his or her duty to report at the time the offense is
committed. The addition of the crime of failing to report
elder abuse to the list of offenses that toll the statute of
limitations is clearly inappropriate as it is not a felony,
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not fraud related, and not the type of crime typically
discovered after the statute has run.
Further, the addition of failure to report abuse of an elder or
dependent adult [Welfare and Institutions Code Section
15630(h)] is unnecessary because it is a "continuing offense"
to which the statute of limitations does not apply. In the
case of In People v. Wright (1997) 15 Cal.4th 521, the court
held that "a continuing offense is marked by a continuing duty
in the defendant to do an act which he fails to do. The
offense continues as long as the duty persists and there is a
failure to perform that duty. . . . Thus, when the law
imposes a duty to act, the violation is complete at the first
instance the elements are met. It is nevertheless not
completed as long as the duty remains unfulfilled. . . .
This construction avoids statute of limitation problems". In
the case of In Re Parks (1986) 184 Cal. App.3d 476, the court
held that failure to register as a convicted sex offender
pursuant to Penal Code 290 is a continuing offense even though
the statute does not explicitly state it is a continuing
offense nor does it have an express provision defining a
violation as a continuing offense, but the "explicit language
of the statute compels the conclusion it is a continuing
offense to which the statute of limitations does not apply."
Otherwise, a person who fails to register as a sex offender
could avoid law enforcement authorities for one year and avoid
prosecution. Under Welfare and Institutions Code Section
15630, a mandated reporter who observes or reasonably suspects
elder abuse has a duty to report the suspected abuse within
two working days to specified agencies. This duty to report
continues as long as the mandated reporter fails to report the
suspected abuse and, thus, the offense is not completed and
the statute of limitations does not commence to run. It is
unnecessary, as well as inappropriate, to amend Penal Code
Section 803(c) by adding the crime of failing to report elder
abuse. This provision of the bill should be deleted.
3)Technical Correction : The most recent amendments to this bill
state the statute of limitations "shall not commence to run
until one year after the discovery of the violation". This
provision should correctly read, "shall not commence to run
until after the discovery of the violation".
4)Knowledge Requirement : For the purpose of the elder abuse
statute, this bill deletes the requirement that the abuser
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have knowledge that the victim is an elder or dependent adult.
According to the author's office, there are inconsistencies in
the elder abuse law which create confusion. Penal Code
Section 368 (b) and (c) require the perpetrator to have
knowledge that the elder victim was in fact an elder. Penal
Code 368(d) also requires the abuser to "know" the victim is
an elder. Penal Code 368(f) does not require the perpetrator
to know the victim was an elder. It would be simpler and
avoid confusion to amend Penal Code Section 368(f) to require
that the abuser have knowledge of the victim's status as an
elder or dependent adult.
2)Definition of "Financial Abuse" : According to the author, the
current definition of "elder financial abuse" is a confusing
four-step process. Under the current statute, "financial
abuse" is defined by wrongful use and/or intent to defraud.
"Wrongful use" is then defined by bad faith. "Bad faith" is
then defined by knew or should have known about a right. The
knew or should have known standard is then further qualified
by an obvious reference to a reasonable person standard. The
purpose of this provision is to streamline the definition so
the definition is simpler and easier to understand. However,
it should be noted that this revised definition deletes the
element of "intent to defraud", which requires the specific
intent to commit theft and would exclude a person who
unintentionally engaged in financial abuse.
3)Burden of Proof : This bill lowers the burden of proof for
civil liability against a person who has committed financial
abuse of an elder from "clear and convincing" to a
"preponderance of the evidence" making it easier to recover
punitive damages. However, the burden remains by "clear and
convincing" evidence in the case of physical abuse.
Clear and convincing evidence denotes proof that is clear,
explicit, and unequivocal and leaves no substantial doubt.
[ People v. Yovanov (1999) 69 Cal.App. 4th 392, 402.]
The standard of clear and convincing evidence is used in a
number of different contexts - establishing the grounds for
withdrawing a guilty plea [ People v. Cruz (1974) 12 Cal.3d
562, 566; People v. Castaneda (1995) 37 Cal.App.4th 1612,
1617]; overcoming the presumption that a minor under the age
of 14 did not appreciate the wrongfulness of the charged
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conduct at the time of the offense and thus is incapable of
committing a crime [ In Re Manuel L. (1994) 7 Cal.4th 229];
terminating parental rights [ In Re Angelina P. (1981) 28
Cal.3d 908]; permitting the government to recover expenses for
drug eradication from an aider and abettor, Health and Safety
Code Section 11470.1 [ People v. Narron (1987) 192 Cal.App. 3d
724.]
The phrase "preponderance of evidence" is usually defined in
terms of probability of truth, e.g., "such evidence as, when
weighed with that opposed to it, has more convincing force and
the greater probability of truth. [Citations.]" [1 Witkin,
Cal. Evidence (3d ed. 1986) Burden of Proof and Presumptions,
Subsection 157, p. 135.] The standard jury instruction
defines "preponderance of the evidence" as ". . . evidence
that has more convincing force than that opposed to it. If
the evidence is so evenly balanced that you are unable to find
that the evidence of either side of an issue preponderates,
your findings on that issue must be against the party who had
the burden of proving it." (CALJIC 2.50.2). Should the
burden of burden of proof be lowered in cases of financial
abuse? Will the lowering of the burden of proof to a
preponderance in cases of financial abuse, while the standard
remains clear and convincing in cases of physical abuse create
equal protection problems causing the statute to be found to
be unconstitutional?
4)Related Legislation : AB 2253 (Jackson) of the 1999-2000
Legislative Session, would have authorized employees or agents
of financial institutions to report suspected financial abuse
against an elder or dependent adult. AB 2253 was placed on
the Assembly Inactive File by the author.
AB 2474 (Wolk), scheduled for hearing by this Committee on April
20, requires accountants, bankers, credit union officers,
insurance agents, investment officers, loan officers, real
estate brokers or agents, stockbrokers, and title insurance
company officers to report financial abuse of elder and
dependent adults.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Senior Legislature (Sponsor)
Alzeimer's Association, California Council
California Geriatric Education Center
Congress of California Seniors
Gray Panthers
Older Women's League of California
Peace Officers Research Association of California
Sonoma County Area Agency on Aging
Opposition
California Association of Health Facilities
California Association of Homes and Services for the Aging
California Bankers Association
California Healthcare Association
Cooperative of American Physicians, Inc. - Mutual Protection
California Financial Services Association
First American Corporation
Insurance Agents and Brokers Legislative Council
The Doctors Company
Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744