BILL ANALYSIS Ó
AB 140
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Date of Hearing: May 8, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 140 (Dickinson) - As Amended: May 6, 2013
Policy Committee: JudiciaryVote:7-2
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill modifies the definition of undue influence as it
applies to financial abuse of elders. Specifically, this bill:
1)Defines undue influence, for purposes of the Elder and
Dependent Adult Civil Protection Act (EDACPA) and the Probate
Code, as excessive persuasion that causes another person to
act or refrain from action and results in inequity.
2)Requires the court, in determining whether a result was
produced by undue influence, to consider all of the following:
a) The vulnerability of the victim.
b) The influencer's apparent authority, and whether the
influencer knew the victim's vulnerability.
c) The actions or tactics used by the influencer.
d) The equity of the result.
3)Stipulates that the above shall not be construed to imply that
an inequitable result, in and of itself, establishes the
element of undue influence or excessive persuasion.
FISCAL EFFECT
To the extent the bill leads to additional civil actions
claiming undue influence in elder financial abuse cases there
will be an impact on court costs and/or court case backlogs.
Associated costs will likely be absorbable, as will the costs
for courts to consider the specified factors in determining
whether undue influence was present.
AB 140
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COMMENTS
Purpose . This bill seeks to modify the definition of undue
influence and apply that definition to actions brought under
EDACPA and the Probate Code. By its own terms, the bill would
not alter the common law definition of undue influence, but
rather purports to supplement it. While undue influence is
defined under the Civil Code, the author notes that this
definition dates back to 1872 and has not been updated since
then. The author asserts that this existing statutory scheme
does not take account of contemporary understandings of
financial elder abuse. Moreover, there is no definition of undue
influence in the Probate Code, even though the Probate Code
provides that the execution or revocation of a will is
ineffective if it was procured by undue influence.
The sponsor, California Advocates for Nursing Home Reform
(CANHR) notes that undue influence under the existing statute
must be predicated on the existence of a "confidential
relationship," the victim's "weakness of mind," and "grossly
oppressive" conduct that takes unfair advantage of another's
"necessities or distress." According to CANHR, this terminology
does not describe the kinds of situations constituting elder
financial abuse. For example, the perpetrators of elder abuse
are not always in a "confidential relationship" with the elder.
In addition, the unfair advantage does not always arise out of
"necessities or distress," because "predators prefer to target
victims with readily available liquid assets." In short, under
the current definition "elders who have capacity and resources
and who are exploited by persons who are not confidants cannot
recover."
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081