SB 1140

California Legislature Introduces SB1140, Substantially Expanding the Rights of Financially Exploited Elders

(February 2008; signed into law September 2008, effective 01/01/09)

BILL NUMBER: SB 1140 INTRODUCED
BILL TEXT

INTRODUCED BY Senator Steinberg

FEBRUARY 4, 2008

An act to amend Sections 15610.30 and 15657.5 of, and to add
Section 15657.7 to, the Welfare and Institutions Code, relating to
financial abuse.


LEGISLATIVE COUNSEL'S DIGEST


SB 1140, as introduced, Steinberg. Financial abuse.
(1) Under existing law, financial abuse of an elder or dependent
adult occurs when a person or entity takes, secretes, appropriates,
or retains, or assists in the taking, secreting, appropriating, or
retaining, of real or personal property of an elder or dependent
adult for a wrongful use or with the intent to defraud, or both.
Existing law makes the failure to report, or impeding or
inhibiting a report of, among other things, financial abuse of an
elder or dependent adult, in violation of certain reporting
requirements a misdemeanor.
Existing law makes it a misdemeanor for any caretaker of an elder
or a dependent adult to violate any provision of law proscribing
theft or embezzlement, with respect to the property of that elder or
dependent adult.
This bill would, among other things, add to the definition of
financial abuse, the taking, secreting, appropriating, obtaining, or
retaining, or assisting in the taking, secreting, appropriating,
obtaining, or retaining, of real or personal property of an elder or
dependent adult when the elder or dependent adult lacks capacity, as
defined, or by undue influence, as defined, or both. It would also
make various conforming changes to these provisions.
By changing the definition of a crime, this bill would impose a
state-mandated local program.
(2) Existing law provides that where an elder or dependent adult
proves by a preponderance of the evidence that a defendant is liable
for financial abuse, the elder or dependent adult may bring a civil
action to recover all remedies provided by law and reasonable
attorney's fees and costs.
Existing law requires that specified standards regarding the
imposition of punitive damages on an employer based upon the act of
an employee be satisfied before any damages or attorney's fees are
awarded in a civil action for financial abuse.
The bill would eliminate the requirement that these standards be
satisfied before damages, other than punitive damages, and attorney's
fees are awarded.
(3) Existing law does not provide for a statute of limitations in
which to commence a civil action for financial abuse of an elder or
dependent adult.
This bill would provide for a 4-year statute of limitations in
which to commence a civil action for financial abuse of an elder or
dependent adult.
(4) 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 no reimbursement is required by this
act for a specified reason.
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 15610.30 of the Welfare and Institutions Code
is amended to read:
15610.30. (a) "Financial abuse" of an elder or dependent adult
occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, obtains, or retains
real or personal property of an elder or dependent adult to
for a wrongful use or with intent to defraud, or
both.
(2) Assists in taking, secreting, appropriating, obtaining,
or retaining real or personal property of an elder or dependent
adult to for a wrongful use or with
intent to defraud, or both.
(3) Takes, secretes, appropriates,
obtains, or retains, or assists in taking, secreting, appropriating,
obtaining, or retaining, real or personal property of an elder or
dependent adult when the elder or dependent adult lacks capacity
pursuant to Section 812 of the Probate Code, or by undue
influence, as defined in Section 1575 of the Civil Code, or both.

(b) A person or entity shall be deemed to have taken, secreted,
appropriated, obtained, or retained property for a
wrongful use if, among other things, the person or entity takes,
secretes, appropriates , obtains, or retains
possession of the property in bad faith
and the person or entity knew or should have known
that this conduct is likely to be harmful to
the elder or dependent adult .
(1) A person or entity shall be deemed to have acted in bad faith
if the person or entity knew or should have known that the elder or
dependent adult had the right to have the property transferred or
made readily available to the elder or dependent adult or to his or
her representative.
(2) For purposes of this section, a person or entity should have
known of a right specified in paragraph (1) if, on the basis of the
information received by the person or entity or the person or entity'
s authorized third party, or both, it is obvious to a reasonable
person that the elder or dependent adult has a right specified in
paragraph (1).
(c) For purposes of this section, a person or entity takes,
secretes, appropriates, obtains, or retains real or personal property
when an elder or dependent adult is deprived of any property right
by means of an agreement, donative transfer, or testamentary bequest,
regardless of whether the property is held directly or
by an attorney-in-fact, conservator, trustee, or other
representative of an elder or dependent adult.
(d) For purposes of this section,
"representative" means a person or entity that is either of the
following:
(1) A conservator, trustee, or other representative of the estate
of an elder or dependent adult.
(2) An attorney-in-fact of an elder or dependent adult who acts
within the authority of the power of attorney.
SEC. 2. Section 15657.5 of the Welfare and Institutions Code is
amended to read:
15657.5. (a) Where it is proven by a preponderance of the
evidence that a defendant is liable for financial abuse, as defined
in Section 15610.30, in addition to compensatory damages and
all other remedies otherwise provided by law, the court shall
award to the plaintiff reasonable attorney's fees and costs. The term
"costs" includes, but is not limited to, reasonable fees for the
services of a conservator, if any, devoted to the litigation of a
claim brought under this article.
(b) Where it is proven by a preponderance of the evidence that a
defendant is liable for financial abuse, as defined in Section
15610.30, and where it is proven by clear and convincing evidence
that the defendant has been guilty of recklessness, oppression,
fraud, or malice in the commission of the abuse, in addition to
reasonable attorney's fees and costs set forth in subdivision (a),
and compensatory damages and all other remedies otherwise
provided by law, the following shall apply:
limitations imposed by Section 377.34 of the Code of Civil Procedure
on the damages recoverable shall not apply.
(1) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.

(2)
(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 punitive damages or attorney'
s fees permitted under this section may be imposed against
an employer found liable for financial abuse as defined in
Section 15610.30 . This subdivision shall not apply to the
recovery of damages, other than punitive damages, or attorney's fees
.
(c)
(d) Nothing in this section affects the award of
punitive damages under Section 3294 of the Civil Code.
SEC. 3. Section 15657.7 is added to the Welfare and Institutions
Code, to read:
15657.7. An action for damages pursuant to Section 15657.5 for
financial abuse of an elder or dependent adult, as defined in Section
15610.30, shall be commenced within four years after the plaintiff
discovers or, through the exercise of reasonable diligence, should
have discovered, the facts constituting the financial abuse.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because 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.