Amended in Senate June 14, 2013

Amended in Assembly May 6, 2013

Amended in Assembly April 15, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 477

Introduced by Assembly Member Chau

February 19, 2013

An act to begin delete amend end delete begin insert add Section 1208 to the Civil Code, to add Section 8215 to the Government Code, and to add end insert Section begin delete 15630.1 of end delete begin insert 15630.2 to end insert the Welfare and Institutions Code, relating to elder and dependent adult abuse.

LEGISLATIVE COUNSEL’S DIGEST

AB 477, as amended, Chau. Elder and dependent adult abuse: mandated reporting.

Existing law, the Financial Elder Abuse Reporting Act of 2005, establishes procedures for the reporting of suspected financial abuse of an elder or dependent adult, as defined. These procedures require mandated reporters of suspected financial abuse of an elder or dependent adult, as defined, to report known or suspected instances of financial abuse of an elder or dependent adult, as specified. Existing law makes a violation of the reporting requirements subject to a civil penalty.

This bill would include notaries public in the definition of mandated reporters of suspected financial abuse of an elder or dependent adult and would require a notary public, except as provided, to report known or suspected instances of financial abuse of an elder or dependent adult if the notary public has observed or has knowledge of suspected financial abuse in connection with providing notary services. begin insert The bill would also prohibit a notary public from performing a notarial act for an elder or dependent adult under specified circumstances, including when, in the notary public’s judgment, the elder or dependent adult end insert begin insert is not acting of his or her own free will. 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:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1208 is added to the end insert begin insert Civil Code end insert begin insert , to read: end insert

begin insert

begin insert 1208. end insert   

A notary public performing services under this article
shall comply with the reporting mandate specified in Section
15630.2 of the Welfare and Institutions Code.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 8215 is added to the end insert begin insert Government Code end insert begin insert , to
read: end insert

begin insert

begin insert 8215. end insert   

A notary public shall comply with the reporting mandate
specified in Section 15630.2 of the Welfare and Institutions Code.
Any violation of that reporting mandate shall be punished pursuant
to that section.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 15630.2 is added to the end insert begin insert Welfare and Institutions
Code end insert begin insert , to read: end insert

begin insert

begin insert 15630.2. end insert   

(a) As used in this section, “mandated reporter of
suspected financial abuse of an elder or dependent adult” or
“mandated reporter” means notaries public.

(b) As used in this section, “financial abuse” has the same
meaning as in Section 15610.30.

(c) (1) Any notary public who, in connection with providing
notary services, has observed or has knowledge of suspected
financial abuse of an elder or dependent adult shall report the
known or suspected instance of financial abuse by telephone or
through a confidential Internet reporting tool, as authorized
pursuant to Section 15658, immediately, or as soon as practicably
possible. If reported by telephone, a written report shall be sent,
or an Internet report shall be made through the confidential
Internet reporting tool established in Section 15658, within two
working days to the local adult protective services agency or the
local law enforcement agency.

(2) A notary public who is also an officer or employee of a
financial institution is subject to the reporting requirement under
Section 15630.1 and not the reporting requirement under this
section.

(3) When two or more mandated reporters jointly have
knowledge or reasonably suspect that financial abuse of an elder
or a dependent adult for which the report is mandated has
occurred, and when there is an agreement among them, the
telephone report or Internet report, as authorized by Section 15658,
may be made by a member of the reporting team who is selected
by mutual agreement. A single report may be made and signed by
the selected member of the reporting team. Any member of the
team who has knowledge that the member designated to report
has failed to do so shall thereafter make that report.

(4) If the mandated reporter knows that the elder or dependent
adult resides in a long-term care facility, as defined in Section
15610.47, the report shall be made to the local ombudsman or
local law enforcement agency.

(d) An allegation by the elder or dependent adult, or any other
person, that financial abuse has occurred is not sufficient to trigger
the reporting requirement under this section if both of the following
conditions are met:

(1) The mandated reporter of suspected financial abuse of an
elder or dependent adult is aware of no other corroborating or
independent evidence of the alleged financial abuse of an elder or
dependent adult. The mandated reporter of suspected financial
abuse of an elder or dependent adult is not required to investigate
any accusations.

(2) In the exercise of his or her professional judgment, the
mandated reporter of suspected financial abuse of an elder or
dependent adult reasonably believes that financial abuse of an
elder or dependent adult did not occur.

(e) Failure to report financial abuse under this section shall be
subject to a civil penalty not exceeding one thousand dollars
($1,000) or if the failure to report is willful, a civil penalty not
exceeding five thousand dollars ($5,000), which shall be paid by
the mandated reporter to the party bringing the action. Subdivision
(h) of Section 15630 shall not apply to violations of this section.

(f) (1) The civil penalty provided for in subdivision (e) shall be
recovered only in a civil action brought against the mandated
reporter by the Attorney General, district attorney, or county
counsel. No action shall be brought under this section by any
person other than the Attorney General, district attorney, or county
counsel. Multiple actions for the civil penalty shall not be brought
for the same violation.

(2) Nothing in the Financial Elder Abuse Reporting Act of 2005
shall be construed to limit, expand, or otherwise modify any civil
liability or remedy that may exist under this or any other law.

(g) As used in this section, “suspected financial abuse of an
elder or dependent adult” occurs when a person who is required
to report under subdivision (c) observes or has knowledge of
behavior or unusual circumstances or transactions, or a pattern
of behavior or unusual circumstances or transactions, that would
lead an individual with like training or experience, based on the
same facts, to form a reasonable belief that an elder or dependent
adult is the victim of financial abuse as defined in Section
15610.30.

(h) Reports of suspected financial abuse of an elder or dependent
adult made by a mandated reporter pursuant to this section are
covered under subdivision (b) of Section 47 of the Civil Code.

(i) A notary public shall not perform a notarial act for an elder
or dependent adult in the either of following circumstances:

(1) The elder or dependent adult has a demeanor that causes
the notary public to have a compelling doubt about whether the
elder or dependent adult understands the consequences of the
transaction or document requiring the notarial act.

(2) In the notary public’s judgment, the elder or dependent adult
is not acting of his or her own free will.

end insert

begin delete

SECTION 1.  

Section 15630.1 of the Welfare and Institutions
Code is amended to read:

15630.1.  

(a) As used in this section, “mandated reporter of
suspected financial abuse of an elder or dependent adult” or
“mandated reporter” means all officers and employees of financial
institutions and notaries public.

(b) As used in this section, the term “financial institution” means
any of the following:

(1) A depository institution, as defined in Section 3(c) of the
Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)).

(2) An institution-affiliated party, as defined in Section 3(u) of
the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)).

(3) A federal credit union or state credit union, as defined in
Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752),
including, but not limited to, an institution-affiliated party of a
credit union, as defined in Section 206(r) of the Federal Credit
Union Act (12 U.S.C. Sec. 1786(r)).

(c) As used in this section, “financial abuse” has the same
meaning as in Section 15610.30.

(d) (1) Any officer or employee of a financial institution who
has direct contact with the elder or dependent adult or who reviews
or approves the elder or dependent adult’s financial documents,
records, or transactions, in connection with providing financial
services with respect to an elder or dependent adult, and who,
within the scope of his or her employment or professional practice,
has observed or has knowledge of an incident, that is directly
related to the transaction or matter that is within that scope of
employment or professional practice, that reasonably appears to
be financial abuse, or who reasonably suspects that abuse, based
solely on the information before him or her at the time of reviewing
or approving the document, record, or transaction in the case of
mandated reporters who do not have direct contact with the elder
or dependent adult, shall report the known or suspected instance
of financial abuse by telephone or through a confidential Internet
reporting tool, as authorized pursuant to Section 15658,
immediately, or as soon as practicably possible. If reported by
telephone, a written report shall be sent, or an Internet report shall
be made through the confidential Internet reporting tool established
in Section 15658, within two working days to the local adult
protective services agency or the local law enforcement agency.

(2) (A) Any notary public who, in connection with providing
notary services, has observed or has knowledge of suspected
financial abuse of an elder or dependent adult shall report the
known or suspected instance of financial abuse by telephone or
through a confidential Internet reporting tool, as authorized
pursuant to Section 15658, immediately, or as soon as practicably
possible. If reported by telephone, a written report shall be sent,
or an Internet report shall be made through the confidential Internet
reporting tool established in Section 15658, within two working
days to the local adult protective services agency or the local law
enforcement agency.

(B) A notary public who is also an officer or employee of a
financial institution is subject to the reporting requirement under
paragraph (1) and not the reporting requirement under this
paragraph.

(C) The requirement of a notary public to report suspected
financial abuse of an elder or dependent adult pursuant to this
paragraph does not apply if the information to be reported is
protected from disclosure by the attorney-client privilege or the
notary public is subject to the duty under paragraph (1) of
subdivision (e) of Section 6068 of the Business and Professions
Code.

(3) When two or more mandated reporters jointly have
knowledge or reasonably suspect that financial abuse of an elder
or a dependent adult for which the report is mandated has occurred,
and when there is an agreement among them, the telephone report
or Internet report, as authorized by Section 15658, may be made
by a member of the reporting team who is selected by mutual
agreement. A single report may be made and signed by the selected
member of the reporting team. Any member of the team who has
knowledge that the member designated to report has failed to do
so shall thereafter make that report.

(4) If the mandated reporter knows that the elder or dependent
adult resides in a long-term care facility, as defined in Section
15610.47, the report shall be made to the local ombudsman or local
law enforcement agency.

(e) An allegation by the elder or dependent adult, or any other
person, that financial abuse has occurred is not sufficient to trigger
the reporting requirement under this section if both of the following
conditions are met:

(1) The mandated reporter of suspected financial abuse of an
elder or dependent adult is aware of no other corroborating or
independent evidence of the alleged financial abuse of an elder or
dependent adult. The mandated reporter of suspected financial
abuse of an elder or dependent adult is not required to investigate
any accusations.

(2) In the exercise of his or her professional judgment, the
mandated reporter of suspected financial abuse of an elder or
dependent adult reasonably believes that financial abuse of an
elder or dependent adult did not occur.

(f) Failure to report financial abuse under this section shall be
subject to a civil penalty not exceeding one thousand dollars
($1,000) or if the failure to report is willful, a civil penalty not
exceeding five thousand dollars ($5,000), which shall be paid by
the financial institution that is the employer of the mandated
reporter or the notary public to the party bringing the action.
Subdivision (h) of Section 15630 shall not apply to violations of
this section.

(g) (1) The civil penalty provided for in subdivision (f) shall
be recovered only in a civil action brought against the financial
institution or the notary public by the Attorney General, district
attorney, or county counsel. No action shall be brought under this
section by any person other than the Attorney General, district
attorney, or county counsel. Multiple actions for the civil penalty
may not be brought for the same violation.

(2) Nothing in the Financial Elder Abuse Reporting Act of 2005
shall be construed to limit, expand, or otherwise modify any civil
liability or remedy that may exist under this or any other law.

(h) As used in this section, “suspected financial abuse of an
elder or dependent adult” occurs when a person who is required
to report under subdivision (a) observes or has knowledge of
behavior or unusual circumstances or transactions, or a pattern of
behavior or unusual circumstances or transactions, that would lead
an individual with like training or experience, based on the same
facts, to form a reasonable belief that an elder or dependent adult
is the victim of financial abuse as defined in Section 15610.30.

(i) Reports of suspected financial abuse of an elder or dependent
adult made by an employee or officer of a financial institution
pursuant to this section are covered under subdivision (b) of Section
47 of the Civil Code.

  

  

  

end delete