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 actingbegin insert by overcoming that person’s free willend insert 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 authority, the actions or tactics used by the influencer, and the equity of the result to be considered. The bill would specify that an inequitable result, without more, is not sufficient to prove undue influence.
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 meaning of undue influence without superseding or interfering
6with the operation 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:
P3 1(1) Takes, secretes, appropriates, obtains, or retains real or
2personal property of an elder or dependent adult for a wrongful
3use or with intent to defraud, or both.
4(2) Assists in taking, secreting, appropriating, obtaining, or
5retaining real or personal property of an elder or dependent adult
6for a wrongful use or with intent to defraud, or both.
7(3) Takes, secretes, appropriates, obtains, or retains, or assists
8in
taking, secreting, appropriating, obtaining, or retaining, real or
9personal property of an elder or dependent adult by undue
10influence, as defined in Section 15610.70.
11(b) A person or entity shall be deemed to have taken, secreted,
12appropriated, obtained, or retained property for a wrongful use if,
13among other things, the person or entity takes, secretes,
14appropriates, obtains, or retains the property and the person or
15entity knew or should have known that this conduct is likely to be
16harmful to the elder or dependent adult.
17(c) For purposes of this section, a person or entity takes, secretes,
18appropriates, obtains, or retains real or personal property when an
19elder or dependent adult is deprived of any property right, including
20by means of an agreement, donative transfer, or
testamentary
21bequest, regardless of whether the property is held directly or by
22a representative of an elder or dependent adult.
23(d) For purposes of this section, “representative” means a person
24or entity that is either of the following:
25(1) A conservator, trustee, or other representative of the estate
26of an elder or dependent adult.
27(2) An attorney-in-fact of an elder or dependent adult who acts
28within the authority of the power of attorney.
Section 15610.70 is added to the Welfare and
30Institutions Code, to read:
(a) “Undue influence” means excessive persuasion
32that causes another person to act or refrain from actingbegin insert by
33overcoming that person’s free willend insert and results in inequity. In
34determining whether a result was produced by undue influence,
35all of the following shall be considered:
36(1) The vulnerability of the victim. Evidence of vulnerability
37may include, but is not limited to, incapacity, illness, disability,
38injury, age, education, impaired cognitive function, emotional
39distress, isolation, or dependency, and whether the influencer knew
40or should have known of the alleged
victim’s vulnerability.
P4 1(2) The influencer’s apparent authority. Evidence of apparent
2authority may include, but is not limited to, status as a fiduciary,
3family member, care provider, health care professional, legal
4professional, spiritual adviser, expert, or other qualification.
5(3) The actions or tactics used by the influencer. Evidence of
6actions or tactics used may include, but is not limited to, all of the
7following:
8(A) Controlling necessaries of life, medication, the victim’s
9interactions with others, access to information, or sleep.
10(B) Use of affection, intimidation, or coercion.
11(C) Initiation of changes in personal or property rights, use of
12haste or secrecy in effecting those changes, effecting changes at
13inappropriate times and places, and claims of expertise in effecting
14changes.
15(4) The equity of the result. Evidence of the equity of the result
16may include, but is not limited to, the economic consequences to
17the victim, any divergence from the victim’s prior intent or course
18of conduct or dealing, the relationship of the value conveyed to
19the value of any services or consideration received, or the
20appropriateness of the change in light of the length and nature of
21the relationship.
22(b) Evidence of an inequitable result, without more, is not
23sufficient to prove undue influence.
No reimbursement is required by this act pursuant to
25Section 6 of Article XIII B of the California Constitution because
26the only costs that may be incurred by a local agency or school
27district will be incurred because this act creates a new crime or
28infraction, eliminates a crime or infraction, or changes the penalty
29for a crime or infraction, within the meaning of Section 17556 of
30the Government Code, or changes the definition of a crime within
31the meaning of Section 6 of Article XIII B of the California
32Constitution.
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