BILL NUMBER: SB 628 CHAPTERED
BILL TEXT
CHAPTER 663
FILED WITH SECRETARY OF STATE OCTOBER 6, 1997
APPROVED BY GOVERNOR OCTOBER 3, 1997
PASSED THE SENATE SEPTEMBER 11, 1997
PASSED THE ASSEMBLY SEPTEMBER 9, 1997
AMENDED IN ASSEMBLY SEPTEMBER 5, 1997
AMENDED IN ASSEMBLY AUGUST 25, 1997
AMENDED IN ASSEMBLY JUNE 24, 1997
AMENDED IN SENATE MAY 15, 1997
INTRODUCED BY Senator Kopp
FEBRUARY 25, 1997
An act to amend Section 1800.3 of the Probate Code, and to amend
Sections 15610.07 and 15657.3 of, and to add Sections 15610.06 and
15657.05 to, the Welfare and Institutions Code, relating to elderly
and dependent adults.
LEGISLATIVE COUNSEL'S DIGEST
SB 628, Kopp. Elders and dependent adults: conservatorships.
Under existing law, a conservatorship of the person of a
nonresident has the same powers and duties as a conservator of the
person of a resident while the nonresident is in this state. A
conservator of the estate of a nonresident has the same powers with
respect to the property of the nonresident within the state as a
conservator of the estate of a resident.
This bill would, until January 1, 2001, prohibit establishing a
conservatorship of the person in this state if the person is a
nonresident and a conservatorship has been established or a
protective order issued in another state with respect to that person,
or a proceeding to establish a conservatorship or obtain a
protective order is pending in another state with respect to that
person, except as specified.
Existing law defines abuse of an elder or dependent adult.
This bill would add abduction, as defined, to the definition of
abuse of an elder or dependent adult.
Existing law imposes liability for the physical or fiduciary abuse
or neglect of an elder or dependent adult.
This bill would impose liability for damages, costs, and attorney'
s fees for the abduction of an elder or dependent adult and would
define the scope of that liability.
Existing law provides that the department of the superior court
having jurisdiction over probate conservatorships shall also have
concurrent jurisdiction over civil actions and proceedings involving
a claim for relief arising out of the abuse of an elderly or
dependent adult, if a conservator has been appointed for plaintiff
prior to the initiation of the action for abuse.
This bill would include civil actions and proceedings involving a
claim for relief arising out of an abduction of an elderly or
dependent adult within the scope of the jurisdiction of that court.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1800.3 of the Probate Code is amended to read:
1800.3. (a) If the need therefor is established to the
satisfaction of the court and the other requirements of this chapter
are satisfied, the court may appoint:
(1) A conservator of the person or estate of an adult, or both.
(2) A conservator of the person of a minor who is married or whose
marriage has been dissolved.
(b) Notwithstanding subdivision (a), a conservatorship of the
person may not be established for a nonresident of this state if a
conservatorship has been established, or a protective court order has
been issued, in another state with respect to that person, or a
proceeding to establish a conservatorship or obtain a protective
court order is pending in another state with respect to that person,
unless both of the following are met:
(1) The person who is or would be protected by the conservatorship
or protective order is in this state.
(2) The out-of-state court in which the conservatorship has been
established or the protective order has been issued, or in which
there is a proceeding to establish a conservatorship or other
protective order, has authorized the permanent removal of the person
described in paragraph (1) to this state.
(c) Subdivision (b) shall be operative only until January 1, 2001.
SEC. 2. Section 15610.06 is added to the Welfare and Institutions
Code, to read:
15610.06. "Abduction" means the removal from this state and the
restraint from returning to this state, or the restraint from
returning to this state, of any elder or dependent adult who does not
have the capacity to consent to the removal from this state and the
restraint from returning to this state, or the restraint from
returning to this state, as well as the removal from this state or
the restraint from returning to this state, of any conservatee
without the consent of the conservator or the court.
SEC. 3. Section 15610.07 of the Welfare and Institutions Code is
amended to read:
15610.07. "Abuse of an elder or a dependent adult" means physical
abuse, neglect, fiduciary abuse, abandonment, isolation, abduction,
or other treatment with resulting physical harm or pain or mental
suffering, or the deprivation by a care custodian of goods or
services that are necessary to avoid physical harm or mental
suffering.
SEC. 4. Section 15657.05 is added to the Welfare and Institutions
Code, to read:
15657.05. Where it is proven by clear and convincing evidence
that an individual is liable for abduction, as defined in Section
15610.06, in addition to all other remedies otherwise provided by
law:
(a) (1) The court shall award to the plaintiff reasonable attorney'
s fees and costs. The term "costs" shall include, but is not limited
to, costs of representing the abductee and his or her family in this
state and any other state in any action related to the abduction and
returning of the abductee to this state, as well as travel expenses
for returning the abductee to this state and reasonable fees for the
services of a conservator, if any, devoted to the litigation of a
claim brought under this article.
(2) The award of attorney's fees shall be governed by the
principles set forth in Section 15657.1.
(b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
SEC. 5. Section 15657.3 of the Welfare and Institutions Code is
amended to read:
15657.3. (a) The department of the superior court having
jurisdiction over probate conservatorships shall also have concurrent
jurisdiction over civil actions and proceedings involving a claim
for relief arising out of the abduction, as defined in Section
15610.06, or the abuse of an elderly or dependent adult, if a
conservator has been appointed for plaintiff prior to the initiation
of the action for abuse.
(b) The department of the superior court having jurisdiction over
probate conservatorships shall not grant relief under this article if
the court determines that the matter should be determined in a civil
action, but shall instead transfer the matter to the general civil
calendar of the superior court. The court need not abate any
proceeding for relief pursuant to this article if the court
determines that the civil action was filed for the purpose of delay.
(c) The death of the elder or dependent adult does not cause the
court to lose jurisdiction of any claim for relief for abuse of an
elder or dependent adult.
(d) Upon petition, after the death of the elder or dependent
adult, the right to maintain an action shall be transferred to the
personal representative of the decedent, or if none, to the person or
persons entitled to succeed to the decedent's estate.