Amended in Senate June 14, 2013

Amended in Assembly May 13, 2013

Amended in Assembly May 6, 2013

Amended in Assembly April 10, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 140

Introduced by Assembly Member Dickinson

(Coauthor: Assembly Member Gatto)

January 17, 2013

An act to add Section 86 to the Probate Code, and to amend Section 15610.30 of, and to add Section 15610.70 to, the Welfare and Institutions Code, relating to undue influence.

LEGISLATIVE COUNSEL’S DIGEST

AB 140, as amended, 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. The bill would require, in determining whether the result was produced by undue influence, the vulnerability of the victim, the influencer’s apparent begin delete authority and whether the influencer knew or should have known of the victim’s vulnerability, end delete begin insert authority, end insert the actions or tactics used by the influencer, and the equity of the result to be considered. The bill would specify that begin delete nothing in these provisions be construed to imply that end delete an inequitable result, without more, begin delete will constitute undue influence or excessive persuasion. end delete begin insert is not sufficient to prove undue influence. end insert

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 1.  

Section 86 is added to the Probate Code, to read:

86.  

“Undue influence” has the same meaning as defined in
Section 15610.70 of the Welfare and Institutions Code. It is the
intent of the Legislature that this section supplement the common
law meaning of undue influence without superseding or interfering
with the operation of that law.

SEC. 2.  

Section 15610.30 of the Welfare and Institutions Code
is amended to read:

15610.30.  

(a) “Financial abuse” of an elder or dependent adult
occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful
use or with intent to defraud, or both.

(2) Assists in 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.

(3) 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 in Section 15610.70.

(b) A person or entity shall be deemed to have taken, secreted,
appropriated, obtained, or retained property for a wrongful use if,
among other things, the person or entity takes, secretes,
appropriates, obtains, or retains the property and the person or
entity knew or should have known that this conduct is likely to be
harmful to the elder or dependent adult.

(c) For purposes of this section, a person or entity takes, secretes,
appropriates, obtains, or retains real or personal property when an
elder or dependent adult is deprived of any property right, including
by means of an agreement, donative transfer, or testamentary
bequest, regardless of whether the property is held directly or by
a representative of an elder or dependent adult.

(d) For purposes of this section, “representative” means a person
or entity that is either of the following:

(1) A conservator, trustee, or other representative of the estate
of an elder or dependent adult.

(2) An attorney-in-fact of an elder or dependent adult who acts
within the authority of the power of attorney.

SEC. 3.  

Section 15610.70 is added to the Welfare and
Institutions Code, to read:

15610.70.  

(a) “Undue influence” means excessive persuasion
that causes another person to act or refrain from acting and results
in inequity. In determining whether a result was produced by undue
influence, all of the following shall be considered:

(1) The vulnerability of the begin delete victim, including, end delete begin insert victim. Evidence
of end insert begin insert vulnerability may include, end insert but begin insert is end insert not limited to, incapacity,
illness, disability, injury, age, education, impaired cognitive
function, emotional distress, isolation, or begin delete dependency. end delete begin insert dependency,
and whether the influencer knew or should have known of the
alleged victim’s vulnerability. end insert

(2) The influencer’s apparent begin delete authority, including, end delete begin insert authority.
Evidence of apparent authority may include, end insert but begin insert is end insert not limited to,
status as a fiduciary, family member, care provider, health care
professional, legal professional, spiritual adviser, expert, or other
begin delete qualification, and whether the influencer knew or should have
known of the victim’s vulnerability. end delete begin insert qualification. end insert

(3) The actions or tactics used by the begin delete influencer, including, end delete
begin insert influencer. Evidence of actions or tactics used may include, end insert but begin insert is end insert
not limited to, begin delete controlling necessaries, end delete begin insert all of the following: end insert

begin insert (A) end insert begin insert   end insert begin insert Controlling necessaries of life, end insert medication, the victim’s
interactions with others, begin delete or end delete access to information, begin delete sleep
deprivation, end delete begin delete use end delete begin insert or sleep. end insert

begin insert (B) end insert begin insert   end insert begin insert Use end insert of affection, intimidation, or begin delete coercion, initiation end delete
begin insert coercion. end insert

begin insert (C) end insert begin insert   end insert begin insert Initiation end insert of changes in personal or property rights, use of
haste or secrecy in effecting those changes, effecting changes at
inappropriate times and places, begin delete or end delete begin insert and end insert claims of expertise in
effecting changes.

(4) The equity of the begin delete result, including, end delete begin insert result. Evidence of the
equity of the result may include, end insert but begin insert is end insert not limited to, the economic
consequences to the victim, any divergence from the victim’s prior
intent or course of conduct or dealing, the relationship of the value
conveyed to the value of any services or consideration received,
or the appropriateness of the change in light of the length and
nature of the relationship.

(b)  begin delete This section shall not be construed to imply that end delete begin insert E end insert begin insert vidence
of end insert an inequitable result, without more, begin delete establishes the element of
undue influence or excessive persuasion. end delete begin insert is not sufficient to prove end insert
begin insert undue influence. end insert

SEC. 4.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.