Amended in Senate May 24, 2013

Amended in Assembly April 11, 2013

Amended in Assembly April 1, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 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 wouldbegin delete permit a court to awardend deletebegin insert provide that a person may, in the court’s discretion, be liable forend insert reasonable attorney’s fees and costs in these actions, except as specified. The bill would specifically apply these provisions to property belonging to an elder or a dependent adult. The bill would make technical changes with regard to the nonexclusive character of the remedy provided.

(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 wouldbegin delete permit a court to awardend deletebegin insert provide that a person may, in the court’s discretion, be liable forend insert reasonable attorney’s fees and costs under these provisions and those described above, except as specified.

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

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

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SECTION 1.  

Section 859 of the Probate Code is amended to
2read:

3

859.  

If a court finds that a person has in bad faith wrongfully
4taken, concealed, or disposed of property belonging to a
5conservatee, a minor, an elder, a dependent adult, a trust, or the
6estate of a decedent, or has taken, concealed, or disposed of the
7property by the use of undue influence in bad faith or through the
8commission of elder or dependent adult financial abuse, as defined
9in Section 15610.30 of the Welfare and Institutions Code, the
10person shall be liable for twice the value of the property recovered
11by an action under this part.begin delete Exceptend deletebegin insert In addition, exceptend insert as otherwise
12required by law, including Section 15657.5 of the Welfare and
13Institutions Code,begin delete a court may, in itsend deletebegin insert the person may, in the court’send insert
14 discretion,begin delete awardend deletebegin insert be liable forend insert reasonable attorney’s fees and costs
15begin delete to the prevailing partyend delete. The remedies provided in this section shall
16be in addition to any other remedies available in law to a person
17authorized to bring an action pursuant to this part.

18

SEC. 2.  

Section 4231.5 of the Probate Code is amended to
19read:

20

4231.5.  

(a) If the attorney-in-fact breaches a duty pursuant to
21this division, the attorney-in-fact is chargeable with any of the
22following, as appropriate under the circumstances:

23(1) Any loss or depreciation in value of the principal’s property
24resulting from the breach of duty, with interest.

25(2) Any profit made by the attorney-in-fact through the breach
26of duty, with interest.

P3    1(3) Any profit that would have accrued to the principal if the
2loss of profit is the result of the breach of duty.

3(b) If the attorney-in-fact has acted reasonably and in good faith
4under the circumstances as known to the attorney-in-fact, the court,
5in its discretion, may excuse the attorney-in-fact in whole or in
6part from liability under subdivision (a) if it would be equitable
7to do so.

8(c) If a court finds that a person has in bad faith wrongfully
9taken, concealed, or disposed of propertybegin delete belongingend deletebegin insert that belongsend insert
10 to a principal under a power of attorney, or has taken, concealed,
11or disposed of propertybegin insert that belongs to a principal under a power
12of attorneyend insert
by the use of undue influence in bad faith or through
13 the commission of elder or dependent adult financial abuse, as
14defined in Section 15610.30 of the Welfare and Institutions Code,
15the person shall be liable for twice the value of the property
16recovered by an action to recover the property or forbegin delete surcharge.
17Exceptend delete
begin insert surcharge. In addition, exceptend insert as otherwise required by
18law, including Section 15657.5 of the Welfare and Institutions
19Code,begin delete a court may, in its discretion, awardend deletebegin insert the person may, in the
20court’s discretion, be liable for end insert
reasonable attorney’s fees and
21costs to the prevailing party. The remedies provided in this section
22shall be in addition to any other remedies available in law to the
23principal or any successor in interest of the principal.



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