BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        AB 140|
          |Office of Senate Floor Analyses   |                              |
          |1020 N Street, Suite 524          |                              |
          |(916) 651-1520         Fax: (916) |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 
           
                                           
                                    THIRD READING


          Bill No:  AB 140
          Author:   Dickinson (D), et al.
          Amended:  7/2/13 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  6-1, 6/25/13
          AYES:  Evans, Walters, Corbett, Jackson, Leno, Monning
          NOES:  Anderson

          SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           ASSEMBLY FLOOR  :  57-10, 05/16/13 - See last page for vote


           SUBJECT  :    Undue influence

           SOURCE  :     California Advocates for Nursing Home Reform


           DIGEST  :    This bill provides in the Elder Abuse and Dependent  
          Adult Civil Protection Act (EADACPA) a new definition of undue  
          influence, which focuses on excessive persuasion that causes  
          another person to act or refrain from action, by overcoming that  
          person's free will, resulting in inequity.  This bill provides a  
          list of considerations for a court to utilize in determining  
          whether an action constituted excessive persuasion.  This bill  
          also makes this new definition of undue influence the operative  
          definition under the Probate Code.

           ANALYSIS  :    

          Existing law:
                                                                CONTINUED





                                                                     AB 140
                                                                     Page  
          2

           
           1.Defines "undue influence" to mean using the confidence of or  
            real or apparent authority over another person to obtain an  
            unfair advantage, taking an unfair advantage over another  
            person's weakness of mind, or taking a grossly oppressive and  
            unfair advantage of another person's necessities or distress.

          2.The EADACPA, generally provides civil protections and remedies  
            for victims of elder and dependent adult abuse and neglect.  
           
           3.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, as  
            defined by Civil Code Section 1575. 

          4.In the Probate Code, provides for actions involving "undue  
            influence" of elders, minors, and dependent adults.  
           
           This bill:

          1.Provides, in EADACPA, a new definition of "undue influence" to  
            mean excessive persuasion that causes another person to act or  
            refrain from acting by overcoming that person's free will and  
            results in inequity. 

          2.Requires a court, in determining whether a result was produced  
            by undue influence, to consider all of the following:

             A.   The vulnerability of the alleged victim.  Evidence of  
               vulnerability may include, but is not limited to,  
               incapacity, illness, disability, injury, age, education,  
               impaired cognitive function, emotional distress, isolation,  
               dependency, and whether the influencer knew or should have  
               known of the alleged victim's vulnerability;

             B.   The influencer's apparent authority.  Evidence of  
               apparent authority may include, but is not limited to,  
               status as a fiduciary, family member, care provider, health  
               care professional, legal professional, spiritual adviser,  
               expert, or other special qualification;

             C.   The actions or tactics used by the influencer.  Evidence  
               of actions or tactics may include, but is not limited to,  

                                                                CONTINUED





                                                                     AB 140
                                                                     Page  
          3

               all of the following:  (a) controlling necessities of life,  
               medication, interactions with others, access to  
               information, or sleep; (b) use of affection, intimidation,  
               or coercion; and (c) initiation of changes in personal or  
               property rights, use of haste or secrecy in effecting those  
               changes, effecting changes at inappropriate times and  
               places, and claims of expertise in effecting changes; and

             D.   The equity of the result.  Evidence of the equity of the  
               result may include, but is not limited to, the economic  
               consequences to the alleged victim, any divergence from the  
               alleged 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, and the  
               reasonableness of the change in light of the length and  
               nature of the relationship.

          1.Provides that evidence of an inequitable result, without more,  
            is not sufficient to prove undue influence.

          2.Applies this new definition of "undue influence" to the  
            Probate Code, which is intended to supplement the common law  
            meaning of undue influence without superseding or interfering  
            with the operation of that law.

           Background
           
          In cases brought pursuant to the EADACPA, existing law refers to  
          "undue influence" to mean the definition provided under the  
          Civil Code, which defines undue influence to mean using the  
          confidence of or real or apparent authority over another, taking  
          an unfair advantage over another person's weakness of mind, or  
          taking a grossly oppressive and unfair advantage of another  
          person's necessities or distress.  

          The author argues that the existing definition of undue  
          influence has been utilized since 1872 and focuses primarily on  
          civil contract disputes.  As such, it does not fully provide an  
          adequate definition for probate and EADACPA cases.  Rather,  
          courts have been left to flesh out the elements of undue  
          influence.

           Prior Legislation


                                                                CONTINUED





                                                                    AB 140
                                                                     Page  
          4

           SB 1140 (Steinberg, Chapter 475, Statutes of 2008) established  
          undue influence as a third definition of financial abuse of an  
          elder or dependent adult.

          SB 1018 (Simitian, Chapter 140, Statutes of 2005) enacted the  
          Elder and Dependent Adult Financial Abuse Reporting Act.

          AB 2611 (Simitian, Chapter 886, Statutes of 2004) reduced the  
          standard of proof for financial abuse to preponderance of the  
          evidence, but allowed punitive damages upon clear and convincing  
          evidence of recklessness, oppression, fraud, or malice.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

           SUPPORT  :   (Verified  6/25/13 per Senate Judiciary Committee  
          analysis - unable to reverify at time of writing)

          California Advocates for Nursing Home Reform (source)
          Alzheimer's Association
          California Alliance for Retired Americans
          California Association for Health Services at Home
          California Commission on Aging
          California Police Chiefs Association
          California Senior Legislature
          Center of Excellence on Elder Abuse and Neglect - UC Irvine  
          Program in                                                   
          Geriatrics
          Consumer Federation of California
          County Welfare Directors Association of California
          Institute on Aging
          National Association of Social Workers
          Ohlone/East Bay Older Women's League of California
          Older Women's League of California

           ARGUMENTS IN SUPPORT  :    According to the author:
          
               AB 140 would modernize the definition of undue influence  
               for elder financial abuse and related probate matters, a  
               definition that has not been revised since 1872.  The new  
               definition that AB 140 would create defines undue influence  
               as excessive persuasion that causes an elder to act or  
               refrain from acting and that results in inequity.  


                                                                CONTINUED





                                                                     AB 140
                                                                     Page  
          5

               Modernizing the definition of undue influence so that it is  
               consistent with contemporary views of vulnerability, mental  
               health, and fairness would bring greater clarity to the  
               determination of when excessive persuasion had become  
               exploitative.


           ASSEMBLY FLOOR  :  57-10, 05/16/13
          AYES:  Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,  
            Bonilla, Bonta, Bradford, Brown, Ian Calderon, Campos, Chau,  
            Chávez, Chesbro, Cooley, Daly, Dickinson, Eggman, Fong, Fox,  
            Frazier, Garcia, Gatto, Gomez, Gordon, Gray, Hall, Roger  
            Hernández, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,  
            Maienschein, Medina, Mitchell, Mullin, Muratsuchi, Nazarian,  
            Nestande, Olsen, Pan, Perea, Quirk, Quirk-Silva, Rendon,  
            Salas, Skinner, Ting, Torres, Wagner, Weber, Wieckowski,  
            Williams, Yamada, John A. Pérez
          NOES:  Bigelow, Conway, Dahle, Donnelly, Hagman, Jones, Mansoor,  
            Patterson, Waldron, Wilk
          NO VOTE RECORDED:  Achadjian, Allen, Buchanan, Beth Gaines,  
            Gorell, Grove, Harkey, Holden, Melendez, Morrell, V. Manuel  
            Pérez, Stone, Vacancy


          AL:nl  8/13/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

                                   ****  END  ****
















                                                                CONTINUED