BILL ANALYSIS Ó
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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:
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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,
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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
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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.
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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
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