AB 140, as introduced, Dickinson. Undue influence.
Existing law provides that financial abuse of an elder or dependent adult 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 by undue influence, as defined.
Existing law makes failing 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. Existing law also makes it a misdemeanor for any caretaker of an elder or dependent adult to violate any provision of law proscribing theft or embezzlement, with respect to the property of that elder or dependent adult.
This bill would change the definition of undue influence to mean excessive persuasion that causes another person to act or refrain from acting and results in inequity. In determining whether the result was produced by undue influence, the vulnerability of the victim, the influencer’s apparent authority, the actions or tactics used by the influencer, and the equity of the result shall be considered.
By changing the definition of a crime, this bill would impose a state-mandated local program.
Existing law prohibits the use of undue influence and establishes protections for individuals unable to resist undue influence in various areas of the law, including wills, trusts, and conservatorships.
This bill would define undue influence for those purposes without superseding or interfering with the common law of undue influence.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 86 is added to the Probate Code, to read:
“Undue influence” has the same meaning as defined in
3Section 15610.70 of the Welfare and Institutions Code. It is the
4intent of the Legislature that this section supplement the common
5law of undue influence without superseding or interfering with the
6operation of that law.
Section 15610.30 of the Welfare and Institutions Code
8 is amended to read:
(a) “Financial abuse” of an elder or dependent adult
10occurs when a person or entity does any of the following:
11(1) Takes, secretes, appropriates, obtains, or retains real or
12personal property of an elder or dependent adult for a wrongful
13use or with intent to defraud, or both.
14(2) Assists in taking, secreting, appropriating, obtaining, or
15retaining real or personal property of an elder or dependent adult
16for a wrongful use or with intent to defraud, or both.
17(3) Takes, secretes, appropriates, obtains, or retains, or assists
18in taking, secreting, appropriating, obtaining, or retaining, real or
19
personal property of an elder or dependent adult by undue
20influence, as defined in Sectionbegin delete 1575 of the Civil Code.end deletebegin insert 15610.70.end insert
21(b) A person or entity shall be deemed to have taken, secreted,
22appropriated, obtained, or retained property for a wrongful use if,
23among other things, the person or entity takes, secretes,
P3 1appropriates, obtains, or retains the property and the person or
2entity knew or should have known that this conduct is likely to be
3harmful to the elder or dependent adult.
4(c) For purposes of this section, a person or entity takes, secretes,
5appropriates, obtains, or retains real or personal property when an
6elder or dependent adult is deprived of any property right, including
7by
means of an agreement, donative transfer, or testamentary
8bequest, regardless of whether the property is held directly or by
9a representative of an elder or dependent adult.
10(d) For purposes of this section, “representative” means a person
11or entity that is either of the following:
12(1) A conservator, trustee, or other representative of the estate
13of an elder or dependent adult.
14(2) An attorney-in-fact of an elder or dependent adult who acts
15within the authority of the power of attorney.
Section 15610.70 is added to the Welfare and
17Institutions Code, to read:
“Undue influence” means excessive persuasion that
19causes another person to act or refrain from acting and results in
20inequity. In determining whether the result was produced by undue
21influence, all of the following shall be considered:
22(a) The vulnerability of the victim, including, but not limited
23to, incapacity, illness, disability, injury, age, education, impaired
24cognitive function, emotional distress, isolation, or dependency.
25(b) The influencer’s apparent authority, including, but not
26limited to, status as a fiduciary, family member, care provider,
27health care professional, legal professional, spiritual adviser, expert,
28or other qualification.
29(c) The actions or tactics used by the influencer, including, but
30not limited to, controlling necessaries, medication, the victim’s
31interactions with others, or access to information, sleep deprivation,
32use of affection, intimidation, or coercion, initiation of changes in
33personal or property rights, use of haste or secrecy in effecting
34those changes, effecting changes at inappropriate times and places,
35or claims of expertise in effecting changes.
36(d) The equity of the result, including, but not limited to, the
37economic consequences to the victim, any divergence from the
38victim’s prior intent or course of conduct or dealing, the
39relationship of the value conveyed to the value of any services or
P4 1consideration received, or the appropriateness of the change in
2light of the length and nature of the relationship.
No reimbursement is required by this act pursuant to
4Section 6 of Article XIII B of the California Constitution because
5the only costs that may be incurred by a local agency or school
6district will be incurred because this act creates a new crime or
7infraction, eliminates a crime or infraction, or changes the penalty
8for a crime or infraction, within the meaning of Section 17556 of
9the Government Code, or changes the definition of a crime within
10the meaning of Section 6 of Article XIII B of the California
11Constitution.
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