BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 354
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          Date of Hearing:   March 15, 2011

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                  AB 354 (Silva) - As Introduced:  February 10, 2011

                    PROPOSED CONSENT (As Proposed to be Amended)

           SUBJECT  :  Trusts and Estates: Wrongful taking

           KEY ISSUE  :  IN ORDER TO HELP PREVENT FINANCIAL ABUSE AND, IN THE 
          EVENT THAT SUCH ABUSE DOES OCCUR, TO ALLEVIATE HARM TO THE 
          VICTIM, SHOULD THE LAW BE CLARIFIED TO REQUIRE THAT FINANCIAL 
          ABUSE OF ELDER AND DEPENDENT ADULTS BE SUBJECT TO DOUBLE 
          DAMAGES? 

           FISCAL EFFECT  :   As currently in print this bill is keyed 
          non-fiscal.

                                      SYNOPSIS
          
          This bill, sponsored by the Conference of California Bar 
          Associations, seeks to clarify that a person who takes someone's 
          property in bad faith through undue influence or through 
          financial abuse under the Elder Abuse and Dependent Adult 
          Protection Act (EADACPA) is liable for twice the value of the 
          property taken.  The author states that this change is necessary 
          because at least one court, in an unpublished opinion, has held 
          that a taking of property through undue influence was not 
          sufficient to allow a court to order double damages.  This bill 
          will ensure that bad faith takings by undue influence, as well 
          as financial abuse under EADACPA, can result in double damages.  
          There is no known opposition.
           
            SUMMARY  :  Provides that damages of twice the value of the 
          property is available if property is wrongfully taken.  
          Specifically,  this bill  provides that if a person takes, 
          conceals or disposes of property by the use of undue influence 
          committed in bad faith or through the commission of financial 
          abuse under EADACPA, that person will be liable for the value of 
          twice the property taken.

           EXISTING LAW  :

          1)Provides, through EADACPA, civil remedies to victims of elder 








                                                                  AB 354
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            or dependent adult abuse, neglect, or abduction, including 
            recovery of damages and attorney's fees.  (Welfare & 
            Institutions Code Section 15600 et seq.)

          2)Provides that "financial abuse" under EADACPA occurs when a 
            person takes, secretes, appropriates, obtains, or retains real 
            or personal property of an elder or dependent adult by undue 
            influence, as defined.  Also defines assisting another in such 
            conduct as financial abuse.  (Welfare & Institutions Code 
            Section 15610.30.)

          3)Provides that remedies for financial abuse under EADACPA 
            include compensatory damages, attorney's fees and costs, and 
            all other remedies otherwise provided by law.  (Welfare & 
            Institutions Code Section 15657.5.)

          4)Provides that if a court finds that an individual has in bad 
            faith wrongfully taken, concealed or disposed of property 
            belonging to a decedent, conservatee, minor or trust, that 
            individual shall be liable for twice the value of the property 
            recovered.  Provides that this remedy is in addition to any 
            other remedy available.  (Probate Code Section 859.)  
           
          COMMENTS  :  The Elder Abuse and Dependent Adult Civil Protection 
          Act was enacted in 1991 to protect elder and dependent adults 
          from abuse and exploitation.  EADACPA recognizes that elders and 
          dependent adults may have disabilities and cognitive 
          impairments, such as Alzheimer's disease and other dementia 
          disorders, which often leave them incapable of seeking help and 
          protection from others; and that elders and dependent adults 
          suffer physical impairments and poor health, conditions that 
          place them in a dependent and vulnerable position.  Further, 
          legislative findings codified in EADACPA state that cases of 
          elder and dependent adult abuse are seldom prosecuted as 
          criminal matters, and few civil cases are brought in connection 
          with this abuse due to problems of proof, court delays, and the 
          lack of incentives to prosecute these suits.

          Under EADACPA, an elder or dependent adult whose property is 
          wrongfully taken by another may bring a civil action for 
          financial abuse to recover the loss of the property and the 
          expense of hiring an attorney to bring the action, along with 
          all other remedies otherwise allowed by law.  This remedy is 
          available to the elder or dependent adult when a person takes 
          their property for a wrongful use or with intent to defraud or 








                                                                  AB 354
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          both.  Under EADACPA, wrongful use is defined as retaining 
          possession of property where the person taking it knew, or 
          should have known, that the elder or dependent adult had the 
          right to have the property made readily available to him or her 
          or representative.  

          This bill clarifies that damages of twice the value of the 
          property taken are available when property is taken in bad faith 
          by undue influence or through elder financial abuse, to ensure 
          that double damages are available in these instances.

          According to the author:

               Current law is unclear as to whether a person who uses 
               elder abuse or intentional undue influence to steal from an 
               elder or dependent adult is liable for the same 
               double-damages that he or she would be liable for if the 
               wrongful taking had been directly from the elder's estate 
               or trust.  Although there are no reported cases 
               interpreting this provision, there has been at least one 
               unreported appellate opinion that holds that the bad faith 
               action of an individual, using undue influence on an 
               elderly parent, is not sufficient to allow a trial court to 
               award double damages. 

               If the appellate court's view is embraced in other cases, 
               it would threaten to undercut the broad protections the 
               Legislature has consistently intended by enacting a series 
               of statutes dating back to 1851 to put potential wrongdoers 
               on notice of their exposure to double liability for bad 
               faith taking of estate property in all trust, guardianship, 
               and conservatorship cases.

          Existing law allows for double damages under the Probate Code 
          when a court finds that property belonging to a decedent, 
          conservatee, minor or trust has, in bad faith, been wrongfully 
          taken, concealed or disposed of property and this is 
          specifically in addition to any other remedy provided by law.  
          An unpublished appellate court decision from 2000 refused to 
          award double damages when the taking involved undue influence of 
          a frail elder committed in bad faith.  This bill clarifies that 
          double damages are available when, in bad faith, property is 
          taken by undue influence and when property is taken through 
          financial abuse under EADACPA. 









                                                                 AB 354
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           Author's Amendments  :  In order to clarify that the bill applies 
          specifically to financial abuse under EADACPA, the author has 
          appropriately requested that the bill be amended as follows:

          On page 2, line 1, after "adult" insert:  financial

          On page 2, lines 2 and 3, strike out "Chapter 11 (commencing 
          with Section 15600) of Part 3 of Division 9" and insert:  
          Section 15610.30
           
            REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Conference of California Bar Associations (sponsor) 

           Opposition 
           
          None on file
           

          Analysis Prepared by  :    Leora Gershenzon / JUD. / (916) 
          319-2334