BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 354|
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CONSENT
Bill No: AB 354
Author: Silva (R)
Amended: 3/21/11 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/7/11
AYES: Evans, Harman, Blakeslee, Corbett, Leno
ASSEMBLY FLOOR : 71-0, 3/25/11 (Consent) - See last page
for vote
SUBJECT : Estates and trusts: property: wrongful taking
SOURCE : Conference of California Bar Associations
DIGEST : This bill provides that when a person has taken,
concealed, or disposed of the real or personal property of
a conservatee, minor, estate of a decedent, or trust by the
use of undue influence in bad faith or through the
commission of elder or dependent adult financial abuse, the
person is liable for twice the value of the property
recovered in a conservatorship, guardianship, estate, or
trust proceeding.
ANALYSIS : Existing law provides that a guardian,
conservator, claimant, personal representative, or trustee
can file a petition with the court to recover the real or
personal property of a minor, conservatee, estate of a
decedent, or trust held by another. (Probate Code Section
850 et seq)
CONTINUED
AB 354
Page
2
Existing law provides that, if the court finds that a
person has in bad faith wrongfully taken, concealed, or
disposed of property belonging to the estate of a decedent,
conservatee, minor, or trust, the person shall be liable
for twice the value of the property recovered by an action
under this part. This remedy is in addition to any other
remedies available in law to a trustee, guardian or
conservator, or personal representative or other successor
in interest of a decedent. (Probate Code Section 859)
Existing law defines "undue influence" as the use, by one
in whom a confidence is reposed by another, or who holds a
real or apparent authority over him, of such confidence or
authority for the purpose of obtaining an unfair advantage
over him, taking an unfair advantage of another's weakness
of mind, or taking a grossly oppressive and unfair
advantage of another's necessities or distress. (Civil
Code Section 1575)
Existing law defines "financial abuse" as 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 or by undue
influence. (Welfare and Institutions Code Section
15610.30)
This bill provides that when a person has taken, concealed,
or disposed of the real or personal property of a
conservatee, minor, estate of a decedent, or trust by the
use of undue influence in bad faith or through the
commission of elder or dependent adult financial abuse, the
person is liable for twice the value of the property
recovered in a guardianship, conservatorship, estate, or
trust proceeding.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/8/11)
Conference of California Bar Associations (source)
Trusts and Estates Section of the State Bar of California
AB 354
Page
3
ARGUMENTS IN SUPPORT : The Conference of California Bar
Associations, the sponsor of this bill, writes, "AB 354
would eliminate the ambiguity in existing law by amending
Probate Code ŬSection] 859 to specifically include willful
undue influence and elder financial abuse as Ŭthe] bases
for imposing double damages liability on wrongdoers who
prey upon the elderly and infirm."
ASSEMBLY FLOOR : 71-0, 3/25/11
AYES: Achadjian, Alejo, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Galgiani,
Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall,
Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso,
Huffman, Jeffries, Knight, Logue, Bonnie Lowenthal, Ma,
Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell,
Nestande, Olsen, Pan, Perea, V. Manuel Pérez, Portantino,
Silva, Skinner, Smyth, Solorio, Torres, Valadao, Wagner,
Wieckowski, Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Allen, Donnelly, Gorell, Jones, Lara,
Nielsen, Norby, Swanson, Vacancy
RJG:kc 6/8/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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