Amended in Assembly April 11, 2013

Amended in Assembly April 1, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 381

Introduced by Assembly Member Chau

February 14, 2013

An act to amend Sections 859 and 4231.5 of the Probate Code, relating to estates and trusts.

LEGISLATIVE COUNSEL’S DIGEST

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. Existing law provides that this remedy is additional to any other remedy available at law.

This bill would begin delete also provide for this person’s liability for end delete begin insert permit a court end insert begin insert to award end insert reasonable attorney’s fees and costs begin insert in these actions, except as specified end insert . The bill would specifically apply these provisions to property belonging to an elder or a dependent adult. begin insert The bill would make technical changes with regard to the nonexclusive character of the remedy provided. 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 begin delete also provide for liability for end delete begin insert permit a court to award end insert reasonable attorney’s fees and costs under these provisions and those described above begin insert , except as specified end insert .

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 859 of the Probate Code is amended to
read:

859.  

If a court finds that a person has in bad faith wrongfully
taken, concealed, or disposed of property belonging to a
conservatee, a minor, an elder, a dependent adult, a trust, or the
estate of a decedent, or has taken, concealed, or disposed of the
property by the use of undue influence in bad faith or through the
commission of elder or dependent adult financial abuse, as defined
in Section 15610.30 of the Welfare and Institutions Code, the
person shall be liable for twice the value of the property recovered
by an action under this part begin delete and shall also be liable for reasonable
attorney’s fees and costs end delete . begin insert Except as otherwise required by law,
including Section 15657.5 of the Welfare and Institutions Code,
a court may, in its discretion, award reasonable attorney’s fees
and costs to the prevailing party end insert begin insert . end insert The remedies provided in this
section shall be in addition to any other remedies available in law
to begin delete a trustee, guardian or conservator, personal representative or
other successor in interest of a decedent, or end delete a person authorized to
bring an action pursuant to begin delete the Elder Abuse and Dependent Adult
Civil Protection Act (Chapter 11 (commencing with Section 15600)
of Part 3 of Division 9 of the Welfare and Institutions Code) end delete begin insert this
part end insert .

SEC. 2.  

Section 4231.5 of the Probate Code is amended to
read:

4231.5.  

(a) If the attorney-in-fact breaches a duty pursuant to
this division, the attorney-in-fact is chargeable with any of the
following, as appropriate under the circumstances:

(1) Any loss or depreciation in value of the principal’s property
resulting from the breach of duty, with interest.

(2) Any profit made by the attorney-in-fact through the breach
of duty, with interest.

(3) Any profit that would have accrued to the principal if the
loss of profit is the result of the breach of duty.

(b) If the attorney-in-fact has acted reasonably and in good faith
under the circumstances as known to the attorney-in-fact, the court,
in its discretion, may excuse the attorney-in-fact in whole or in
part from liability under subdivision (a) if it would be equitable
to do so.

(c) If a court finds that a person has in bad faith wrongfully
taken, concealed, or disposed of property belonging to a principal
under a power of attorney, or 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
in Section 15610.30 of the Welfare and Institutions Code, the
person shall be liable for twice the value of the property recovered
by an action to recover the property or for surcharge begin delete and shall also
be liable for reasonable attorney’s fees and costs end delete . begin insert Except as
otherwise required by law, including Section 15657.5 of the
Welfare and Institutions Code, a court may, in its discretion, award
reasonable attorney’s fees and costs to the prevailing party end insert begin insert . end insert The
remedies provided in this section shall be in addition to any other
remedies available in law to the principal or any successor in
interest of the principal.