Amended in Senate August 12, 2013

Amended in Senate June 24, 2013

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 add Section 1208 to the Civil Code, to add Section 8215 to the Government Code, and to amend Sections 15632, 15633, 15634, 15637, 15640, and 15655.5 of, and to add Section 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. begin delete 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. end delete

Existing law makes specified reports, including reports of known or suspected financial abuse of an elder or dependent adult, confidential. Any violation of the confidentiality of these reports is a misdemeanor.

This bill would extend that confidentiality to a notary public’s report of known or suspected financial abuse of an elder or dependent adult. By increasing the scope of a crime, the bill would impose a state-mandated local program.

Existing law authorizes a care custodian, clergy member, health practitioner, and an employee of an adult protective services agency or a law enforcement agency to present a claim to the California Victim Compensation and Government Claims Board for reasonable attorney’s fees incurred in any action against that person for making a report of known or suspected abuse of an elder or dependent adult, as specified.

This bill would additionally authorize a begin delete mandated reporter of known or suspected financial abuse of an elder or dependent adult end delete begin insert notary public end insert to present a claim to the board for reasonable attorney’s fees incurred in an action against that person for making a report pursuant to these provisions.

Existing law requires a county adult protective services agency to report every known or suspected instance of abuse of an elder or dependent adult, as specified, to any public agency given responsibility for investigation in that jurisdiction of cases of elder and dependent adult abuse. Existing law also requires a county adult protective services agency to provide mandated reporters of suspected financial abuse of an elder or dependent adult with instructional materials regarding abuse and neglect of an elder or dependent adult and their obligation to report under these provisions.

The bill would require a county adult protective services agency to additionally report a known or suspected instance of abuse reported by a notary public and to additionally provide instructional materials to notaries public. By increasing the duties of local agencies, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

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

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) 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.

(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.

begin delete

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

end delete begin delete

(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.

end delete begin delete

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

end delete

SEC. 4.  

Section 15632 of the Welfare and Institutions Code is
amended to read:

15632.  

(a) In any court proceeding or administrative hearing,
neither the physician-patient privilege nor the
psychotherapist-patient privilege applies to the specific information
reported pursuant to this chapter.

(b) Nothing in this chapter shall require the disclosure of
information protected by the attorney-client privilege or the duty
under subdivision (e) of Section 6068 of the Business and
Professions Code.

SEC. 5.  

Section 15633 of the Welfare and Institutions Code is
amended to read:

15633.  

(a) The reports made pursuant to Sections 15630,
15630.1, 15630.2, and 15631 shall be confidential and may be
disclosed only as provided in subdivision (b). Any violation of the
confidentiality required by this chapter is a misdemeanor
punishable by not more than six months in the county jail, by a
fine of five hundred dollars ($500), or by both that fine and
imprisonment.

(b) Reports of suspected abuse of an elder or dependent adult
and information contained therein may be disclosed only to the
following:

(1) Persons or agencies to whom disclosure of information or
the identity of the reporting party is permitted under Section
15633.5.

(2) (A) Persons who are trained and qualified to serve on
multidisciplinary personnel teams may disclose to one another
information and records that are relevant to the prevention,
identification, or treatment of abuse of elderly or dependent
persons.

(B) Except as provided in subparagraph (A), any personnel of
the multidisciplinary team or agency that receives information
pursuant to this chapter, shall be under the same obligations and
subject to the same confidentiality penalties as the person
disclosing or providing that information. The information obtained
shall be maintained in a manner that ensures the maximum
protection of privacy and confidentiality rights.

(c) This section shall not be construed to allow disclosure of
any reports or records relevant to the reports of abuse of an elder
or dependent adult if the disclosure would be prohibited by any
other provisions of state or federal law applicable to the reports or
records relevant to the reports of the abuse, nor shall it be construed
to prohibit the disclosure by a financial institution of any reports
or records relevant to the reports of abuse of an elder or dependent
adult if the disclosure would be required of a financial institution
by otherwise applicable state or federal law or court order.

SEC. 6.  

Section 15634 of the Welfare and Institutions Code is
amended to read:

15634.  

(a) A care custodian, clergy member, health
practitioner, mandated reporter of suspected financial abuse of an
elder or dependent adult, or employee of an adult protective
services agency or a local law enforcement agency who reports a
known or suspected instance of abuse of an elder or dependent
adult shall not be civilly or criminally liable for any report required
or authorized by this chapter. Any other person reporting a known
or suspected instance of abuse of an elder or dependent adult shall
not incur civil or criminal liability as a result of any report
authorized by this chapter, unless it can be proven that a false
report was made and the person knew that the report was false. A
person required to make a report pursuant to this chapter, or any
person taking photographs at his or her discretion, shall not incur
any civil or criminal liability for taking photographs of a suspected
victim of abuse of an elder or dependent adult or causing
photographs to be taken of a suspected victim or for disseminating
the photographs with the reports required by this chapter. However,
this section shall not be construed to grant immunity from this
liability with respect to any other use of the photographs.

(b) A care custodian, clergy member, health practitioner,
mandated reporter of suspected financial abuse of an elder or
dependent adult, or employee of an adult protective services agency
or a local law enforcement agency who, pursuant to a request from
an adult protective services agency or a local law enforcement
agency investigating a report of known or suspected abuse of an
elder or dependent adult, provides the requesting agency with
access to the victim of a known or suspected instance of abuse of
an elder or dependent adult, shall not incur civil or criminal liability
as a result of providing that access.

(c) The Legislature finds that, even though it has provided
immunity from liability to persons required to report abuse of an
elder or dependent adult, immunity does not eliminate the
possibility that actions may be brought against those persons based
upon required reports of abuse. In order to further limit the financial
hardship that those persons may incur as a result of fulfilling their
legal responsibilities, it is necessary that they not be unfairly
burdened by legal fees incurred in defending those actions.
Therefore, a care custodian, clergy member, health practitioner,
begin delete mandated reporter of suspected financial abuse of an elder or
dependent adult, end delete begin insert notary public, end insert or an employee of an adult
protective services agency or a local law enforcement agency may
present to the California Victim Compensation and Government
Claims Board a claim for reasonable attorney’s fees incurred in
any action against that person on the basis of making a report
required or authorized by this chapter if the court has dismissed
the action upon a demurrer or motion for summary judgment made
by that person, or if he or she prevails in the action. The California
Victim Compensation and Government Claims Board shall allow
that claim if the requirements of this subdivision are met, and the
claim shall be paid from an appropriation to be made for that
purpose. Attorney’s fees awarded pursuant to this section shall not
exceed an hourly rate greater than the rate charged by the Attorney
General at the time the award is made and shall not exceed an
aggregate amount of fifty thousand dollars ($50,000). This
subdivision shall not apply if a public entity has provided for the
defense of the action pursuant to Section 995 of the Government
Code.

SEC. 7.  

Section 15637 of the Welfare and Institutions Code is
amended to read:

15637.  

In any court proceeding or administrative hearing,
neither the physician-patient privilege nor the
psychotherapist-patient privilege applies to the specific information
required to be reported pursuant to this chapter. Nothing in this
chapter shall require the disclosure of information protected by
the attorney-client privilege or the duty under subdivision (e) of
Section 6068 of the Business and Professions Code.

SEC. 8.  

Section 15640 of the Welfare and Institutions Code is
amended to read:

15640.  

(a) (1) An adult protective services agency shall
immediately, or as soon as practically possible, report by telephone
to the law enforcement agency having jurisdiction over the case
any known or suspected instance of criminal activity, and to any
public agency given responsibility for investigation in that
jurisdiction of cases of elder and dependent adult abuse, every
known or suspected instance of abuse of an elder or dependent
adult pursuant to Section 15630, 15630.1, or 15630.2. A county
adult protective services agency shall also send a written report
thereof within two working days of receiving the information
concerning the incident to each agency to which it is required to
make a telephone report under this subdivision. Prior to making
any cross-report of allegations of financial abuse to law
enforcement agencies, an adult protective services agency shall
first determine whether there is reasonable suspicion of any
criminal activity.

(2) If an adult protective services agency receives a report of
abuse alleged to have occurred in a long-term care facility, that
adult protective services agency shall immediately inform the
person making the report that he or she is required to make the
report to the long-term care ombudsman program or to a local law
enforcement agency. The adult protective services agency shall
not accept the report by telephone but shall forward any written
report received to the long-term care ombudsman.

(b) If an adult protective services agency or local law
enforcement agency or ombudsman program receiving a report of
known or suspected elder or dependent adult abuse determines,
pursuant to its investigation, that the abuse is being committed by
a health practitioner licensed under Division 2 (commencing with
Section 500) of the Business and Professions Code, or any related
initiative act, or by a person purporting to be a licensee, the adult
protective services agency or local law enforcement agency or
ombudsman program shall immediately, or as soon as practically
possible, report this information to the appropriate licensing
agency. The licensing agency shall investigate the report in light
of the potential for physical harm. The transmittal of information
to the appropriate licensing agency shall not relieve the adult
protective services agency or local law enforcement agency or
ombudsman program of the responsibility to continue its own
investigation as required under applicable provisions of law. The
information reported pursuant to this paragraph shall remain
confidential and shall not be disclosed.

(c) A local law enforcement agency shall immediately, or as
soon as practically possible, report by telephone to the long-term
care ombudsman program when the abuse is alleged to have
occurred in a long-term care facility or to the county adult
protective services agency when it is alleged to have occurred
anywhere else, and to the agency given responsibility for the
investigation of cases of elder and dependent adult abuse every
known or suspected instance of abuse of an elder or dependent
adult. A local law enforcement agency shall also send a written
report thereof within two working days of receiving the information
concerning the incident to any agency to which it is required to
make a telephone report under this subdivision.

(d) A long-term care ombudsman coordinator may report the
instance of abuse to the county adult protective services agency
or to the local law enforcement agency for assistance in the
investigation of the abuse if the victim gives his or her consent. A
long-term care ombudsman program and the Licensing and
Certification Division of the State Department of Public Health
shall immediately report by telephone and in writing within two
working days to the bureau any instance of neglect occurring in a
health care facility that has seriously harmed any patient or
reasonably appears to present a serious threat to the health or
physical well-being of a patient in that facility. If a victim or
potential victim of the neglect withholds consent to being identified
in that report, the report shall contain circumstantial information
about the neglect, but shall not identify that victim or potential
victim. The bureau and the reporting agency shall maintain the
confidentiality of the report until the report becomes a matter of
public record.

(e) When a county adult protective services agency, a long-term
care ombudsman program, or a local law enforcement agency
receives a report of abuse, neglect, or abandonment of an elder or
dependent adult alleged to have occurred in a long-term care
facility, that county adult protective services agency, long-term
care ombudsman coordinator, or local law enforcement agency
shall report the incident to the licensing agency by telephone as
soon as possible.

(f) County adult protective services agencies, long-term care
ombudsman programs, and local law enforcement agencies shall
report the results of their investigations of referrals or reports of
abuse to the respective referring or reporting agencies.

SEC. 9.  

Section 15655.5 of the Welfare and Institutions Code
is amended to read:

15655.5.  

A county adult protective services agency shall
provide the organizations listed in paragraphs (v), (w), and (x) of
Section 15610.17, and mandated reporters of suspected financial
abuse of an elder or dependent adult pursuant to Sections 15630.1
and 15630.2, with instructional materials regarding abuse and
neglect of an elder or dependent adult and their obligation to report
under this chapter. At a minimum, the instructional materials shall
include all of the following:

(a) An explanation of abuse and neglect of an elder or dependent
adult, as defined in this chapter.

(b) Information on how to recognize potential abuse and neglect
of an elder or dependent adult.

(c) Information on how the county adult protective services
agency investigates reports of known or suspected abuse and
neglect.

(d) Instructions on how to report known or suspected incidents
of abuse and neglect, including the appropriate telephone numbers
to call and what types of information would assist the county adult
protective services agency with its investigation of the report.

SEC. 10.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.

However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.