BILL NUMBER: AB 477 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 14, 2013
AMENDED IN ASSEMBLY MAY 6, 2013
AMENDED IN ASSEMBLY APRIL 15, 2013
INTRODUCED BY Assembly Member Chau
FEBRUARY 19, 2013
An act to amend add Section 1208 to the
Civil Code, to add Section 8215 to the Government Code,
and to add Section 15630.1 of 15630.2 to
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. 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 is not
acting of his or her own free will.
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 1208 is added to the
Civil Code , to read:
1208. 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.
SEC. 2. Section 8215 is added to the
Government Code , to read:
8215. 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.
SEC. 3. Section 15630.2 is added to the
Welfare and Institutions Code , to read:
15630.2. (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.
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.