BILL ANALYSIS Ó
AB 354
Page 1
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because at least one court, in an unpublished opinion, has held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
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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
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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.
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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