AB 381, as amended, Chau. Estates and trusts: undue influence and elder abuse.
(1) Existing law provides that a person found liable for taking, concealing, or disposing of property belonging to the estate of a decedent, conservatee, minor, or trust through the use of undue influence in bad faith, or through the commission of elder or dependent adult financial abuse, is liable for twice the value of the property.begin insert Existing law provides that this remedy is additional to any other remedy available at law.end insert
This bill would also provide for this person’s liability for reasonable attorney’s fees and costs.begin insert The bill would specifically apply these provisions to property belonging to an elder or a dependent adult.end insert
(2) Existing law provides that a person who, in bad faith, wrongfully takes, conceals, or disposes of property belonging to a principal under a power of attorney is liable for twice the value of the property recovered by an action to recover the property or for surcharge.
This bill would extend this liability to a person who has taken, concealed, or disposed of property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined. The bill would also provide for liability for reasonable attorney’s fees and costs under these provisions and those described above.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 859 of the Probate Code is amended to
2read:
If a court finds that a person has in bad faith wrongfully
4taken, concealed, or disposed of property belonging tobegin delete the estate begin insert aend insert conservatee,begin insert aend insert minor,
5of a decedent,end deletebegin delete orend deletebegin insert an elder, a dependent
6adult, aend insert trust, orbegin insert the estate of a decedent, orend insert has taken,
concealed,
7or disposed of the property by the use of undue influence in bad
8faith or through the commission of elder or dependent adult
9financial abuse, as defined in Section 15610.30 of the Welfare and
10Institutions Code, the person shall be liable for twice the value of
11the property recovered by an action under this part and shall also
12be liable for reasonable attorney’s fees and costs. The
remedies
13provided in this section shall be in addition to any other remedies
14available in law to a trustee, guardian or conservator, begin deleteorend delete personal
15representative or other successor in interest of a decedentbegin insert, or a
16person authorized to bring an action pursuant to the Elder Abuse
17and Dependent Adult Civil Protection Act (Chapter 11
18(commencing with Section 15600) of Part 3 of Division 9 of the
19Welfare and Institutions Code)end insert.
Section 4231.5 of the Probate Code is amended to
21read:
(a) If the attorney-in-fact breaches a duty pursuant to
23this division, the attorney-in-fact is chargeable with any of the
24following, as appropriate under the circumstances:
25(1) Any loss or depreciation in value of the principal’s property
26resulting from the breach of duty, with interest.
27(2) Any profit made by the attorney-in-fact through the breach
28of duty, with interest.
29(3) Any profit that would have accrued to the principal if the
30loss of profit is the result of the breach of duty.
31(b) If the
attorney-in-fact has acted reasonably and in good faith
32under the circumstances as known to the attorney-in-fact, the court,
33in its discretion, may excuse the attorney-in-fact in whole or in
P3 1part from liability under subdivision (a) if it would be equitable
2to do so.
3(c) If a court finds that a person has in bad faith wrongfully
4taken, concealed, or disposed of property belonging to a principal
5under a power of attorney, or has taken, concealed, or disposed of
6property by the use of undue influence in bad faith or through the
7commission of elder or dependent adult financial abuse, as defined
8in Section 15610.30 of the Welfare and Institutions Code, the
9person shall be liable for twice the value of the property recovered
10by an action to recover the property or for surcharge and shall also
11be liable for reasonable attorney’s fees and
costs. The remedies
12provided in this section shall be in addition to any other remedies
13available in law to the principal or any successor in interest of the
14principal.
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