BILL NUMBER: SB 1742 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 29, 2000
PASSED THE ASSEMBLY AUGUST 25, 2000
AMENDED IN ASSEMBLY AUGUST 23, 2000
AMENDED IN ASSEMBLY JULY 6, 2000
AMENDED IN ASSEMBLY JUNE 15, 2000
AMENDED IN SENATE APRIL 12, 2000
AMENDED IN SENATE MARCH 30, 2000
INTRODUCED BY Senator Hughes
(Principal coauthor: Assembly Member Rod Pacheco)
(Coauthors: Senators Alarcon, Murray, Ortiz, Rainey, Solis, and
Vasconcellos)
(Coauthors: Assembly Members Alquist, Havice, Honda, Kuehl,
Longville, Romero, Strom-Martin, Washington, and Zettel)
FEBRUARY 23, 2000
An act to add Chapter 4 (commencing with Section 2950) to Part 5
of Division 4 of the Probate Code, and to amend Section 15610.30 of
the Welfare and Institutions Code, relating to adult abuse.
LEGISLATIVE COUNSEL'S DIGEST
SB 1742, Hughes. Adult abuse.
Existing law provides for misdemeanor and felony sanctions,
including imprisonment and fines, for offenses involving the abuse of
an elder or dependent adult, depending upon the circumstances.
Existing law provides for various procedures for the protection of
elders and dependent adults by the public guardian and by programs
implemented by the State Department of Social Services.
Existing law authorizes a public guardian who is authorized to
take possession or control of property to issue a written
certification to that effect, and would require a financial
institution or other person to provide the public guardian with
information concerning property of a proposed ward or conservatee and
surrender property of that person to the public guardian that is
subject to loss, injury, waste, or misappropriation.
This bill would authorize certain peace officers to issue a
declaration that an elder person, as defined, is substantially unable
to manage his or her financial resources or to resist fraud or undue
influence, there exists a significant danger that the elder person
will lose all or a portion of his or her property as a result of
fraud or misrepresentation or the mental incapacity of the elder
person, there is probable cause to believe a crime is being committed
against that person, the crime is connected to his or her inability
to manage his or her financial resources or to resist fraud or undue
influence, and he or she suffers from that inability as a result of
deficits in one or more mental functions. Upon receipt of the
declaration, the public guardian would be authorized to rely on the
information contained in the declaration to take immediate possession
and control of the property of the elder person. The bill would
authorize the public guardian to issue a certification of that fact,
which certification would require financial institutions and other
persons to submit information about, and possession of, property of
the victim. This bill would also establish a process whereby a
person identified as a victim in a declaration may bring an ex parte
petition in the superior court for an order quashing the
certification.
The bill would also require the public guardian to seek
individuals to manage the estate of the elder person, under certain
circumstances and in accordance with specified criteria.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 4 (commencing with Section 2950) is added to
Part 5 of Division 4 of the Probate Code, to read:
CHAPTER 4. FINANCIAL ABUSE OF MENTALLY IMPAIRED ELDERS
Article 1. General
2950. (a) It is the intent of the Legislature to do all of the
following:
(1) Reduce the incidence of financial abuse perpetrated against
mentally impaired elder adults.
(2) Minimize monetary losses to mentally impaired elder adults as
a result of financial abuse.
(3) Facilitate timely intervention by law enforcement, in
collaboration with the public guardian, to effectively protect
mentally impaired elder adult victims of financial abuse, and to
recover their assets.
(b) Any peace officer or public guardian of a county that has both
of the following, as determined by the public guardian of that
county, may take the actions authorized by this chapter:
(1) The existence of sufficient law enforcement personnel with
expertise in the assessment of competence.
(2) The existence of a law enforcement unit devoted to
investigating elder financial abuse and the enforcement of laws
applicable to elder abuse.
(c) This chapter shall be coordinated with existing mandated
programs affecting financial abuse of mentally impaired elders that
are administered by the adult protective services agency of the
county.
2951. The definitions contained in this section shall govern the
construction of this chapter, unless the context requires otherwise.
(a) "Declaration" means a document that substantially complies
with the requirements of Section 2954, and is signed by both a peace
officer and a supervisor from the county's adult protective services
agency and provided to the public guardian in accordance with
subdivision (b) of Section 2952.
(b) "Elder person" means any person residing in this state, 65
years of age or older.
(c) "Financial abuse" means a situation described in Section
15610.30 of the Welfare and Institutions Code.
(d) "Financial abuse POST training" means an elder financial abuse
training course certified by the Commission on Peace Officer
Standards and Training.
(e) "Financial institution" means any bank, savings and loan,
thrift, industrial loan company, credit union, or any branch of any
of these institutions doing business in the state, as defined by
provisions of the Financial Code.
(f) "Peace officer" means a sheriff, deputy sheriff, municipal
police officer, or a peace officer authorized under subdivision (b)
of Section 830.1 of the Penal Code, duly sworn under the requirements
of state law, who satisfies any of the following requirements:
(1) The sheriff, deputy sheriff, municipal police officer, or
peace officer authorized under subdivision (b) of Section 830.1 of
the Penal Code has completed or participated as a lecturer in a
financial abuse POST training program within the last 36 months. The
completion of the course may be satisfied by telecourse, video
training tape, or other instruction. The training shall, at a
minimum, address relevant elder abuse laws, recognition of financial
abuse and fraud, assessment of mental competence in accordance with
the standards set forth in Part 17 (commencing with Section 810) of
the Probate Code, reporting requirements and procedures for the
investigation of financial abuse and related crimes, including
neglect, and civil and criminal procedures for the protection of
victims. The course may be presented as part of a training program
that includes other subjects or courses.
(2) The sheriff, deputy sheriff, municipal police officer, or
peace officer authorized under subdivision (b) of Section 830.1 of
the Penal Code, has consulted with a sheriff, deputy sheriff,
municipal police officer, or peace officer authorized under
subdivision (b) of Section 830.1 of the Penal Code, who satisfies the
requirements of paragraph (1) concerning the declaration defined in
subdivision (a) and obtained the signature of that sheriff, deputy
sheriff, municipal police officer, or peace officer authorized under
subdivision (b) of Section 830.1 of the Penal Code on a declaration
that substantially complies with the form described in Section 2954.
(g) "Property" means all personal property and real property of
every kind belonging to, or alleged to belong to, the elder.
Article 2. Estate Protection
2952. (a) A peace officer may issue a declaration, as provided in
Section 2954, concerning an elder person if all of the following
conditions are satisfied:
(1) There is probable cause to believe that the elder person is
substantially unable to manage his or her financial resources or to
resist fraud or undue influence.
(2) There exists a significant danger that the elder person will
lose all or a portion of his or her property as a result of fraud or
misrepresentations or the mental incapacity of the elder person.
(3) There is probable cause to believe that a crime is being
committed against the elder person.
(4) The crime is connected to the inability of the elder person to
manage his or her financial resources or to resist fraud or undue
influence, and that inability is the result of deficits in the elder
person's mental functions.
(5) The peace officer has consulted with an individual qualified
to perform a mental status examination.
(b) If the requirements of subdivision (a) are satisfied, the
peace officer may provide a signed declaration to the public guardian
of the county. The declaration provided by the peace officer under
this subdivision shall be signed by both the peace officer and a
supervisor from the county's adult protective services agency. The
declaration shall be transmitted to the public guardian within 24
hours of its being signed, and may be transmitted by facsimile.
(c) (1) Upon receiving a signed declaration from a peace officer,
the public guardian is authorized to rely on the information
contained in the declaration to take immediate possession or control
of the property of the elder person referred to in the declaration,
and may issue a written recordable certification of that fact as
provided for in Section 2901.
(2) The mere issuance of the declaration provided by this section
shall not require the public guardian to take possession or control
of property and shall not require the public guardian to make a
determination that the requirements for the appointment of a
conservator are satisfied.
(3) A public guardian acting in good faith is not liable when
taking possession or control of property pursuant to this section.
(d) (1) If the public guardian takes possession of an elder person'
s property pursuant to this section, the public guardian shall
attempt to find agents pursuant to the use of durable powers of
attorney or successor trustees nominated in trust instruments, or
other persons having legal authority under existing legal
instruments, to manage the elder person's estate.
(2) If the public guardian is unable to find any appropriate
person to manage the elder person's estate pursuant to paragraph (1),
the public guardian shall attempt to find family members willing to
manage the elder person's estate. If no documents exist appointing
fiduciaries, the public guardian shall follow the priorities set
forth in Article 2 (commencing with Section 1810) of Chapter 1 of
Part 3.
(3) The public guardian shall take the steps described in
paragraphs (1) and (2) within 15 days of taking possession of an
elder person's property pursuant to this section.
2953. (a) (1) A public guardian who has taken possession or
control of the property of an elder person pursuant to this chapter
is entitled to petition a court of competent jurisdiction for the
reasonable costs incurred by the public guardian for the protection
of the person or the property, together with reasonable fees for
services, including, but not limited to, reasonable attorneys' fees.
These fees shall be payable from the estate of the elder person if
the person is not deemed competent by the court and if any of the
following apply:
(A) The public guardian or someone else is appointed as the
temporary or general conservator of the estate.
(B) An attorney-in-fact, under a durable power of attorney, or a
trustee, takes steps, or is notified of the need to take steps, to
protect the estate of the elder person.
(C) An action is brought against the alleged financial abuser by
the elder person, his or her conservator, a trustee, a fiduciary, or
a successor in interest of the elder person, arising from a harm that
the public guardian taking charge was intended to prevent or
minimize.
(2) Any costs incurred by the public guardian pursuant to
paragraph (1) shall be compensable as provided in Section 2902. Fees
collected by the public guardian pursuant to this chapter shall be
used for the activities described in this chapter.
(b) When a public guardian has taken possession or control of the
property of an elder person pursuant to this chapter, the public
guardian shall exercise reasonable care to ensure that the reasonable
living expenses and legitimate debts of the elder person are
addressed as well as is practical under the circumstances.
(c) Any person identified as a victim in a declaration described
in Section 2954 may bring an ex parte petition in the superior court
for an order quashing the certification issued by the public guardian
as provided in subdivision (c) of Section 2952.
(1) Upon request by the petitioner, the court may defer filing
fees related to the petition, and order the public guardian to
authorize the release of funds from a financial institution to
reimburse the petitioner the filing fees from assets belonging to the
petitioner, but shall waive filing fees if the petitioner meets the
standards of eligibility established by subparagraph (A) or (B) of
paragraph (6) of subdivision (a) of Section 68511.3 of the Government
Code for the waiver of a filing fee.
(2) The court shall quash the certification if the court
determines that there is insufficient evidence to justify the
imposition on the alleged victim's civil liberties caused by the
certification.
(3) If the court determines that there is sufficient evidence to
justify the imposition on the alleged victim's civil liberties caused
by the certification, the court may, in its discretion, do one or
more of the following:
(A) Order disbursements from the alleged victim's assets, as are
reasonably needed to address the alleged victim's needs.
(B) Appoint a temporary conservator of the alleged victim's
estate, where the facts before the court would be sufficient for the
appointment of a temporary conservator under Section 2250.
(C) Deny the petition.
(D) Award reasonable attorney's fees to respondent's attorney from
the victim's estate.
(d) The public guardian shall serve or cause to be served a copy
of the certification issued pursuant to Section 2952 on the victim by
mail within 24 hours of the execution of the certification, or as
soon thereafter as is practical, in the manner provided in Chapter 4
(commencing with Section 413.10) of Title 5 of Part 2 of the Code of
Civil Procedure.
2954. A declaration issued by a peace officer under this chapter
shall not be valid unless it substantially complies with the
following form:
DECLARATION
PRINT OR TYPE
1. My name is:
_____________________________________________________.
My badge number is:
_____________________________________________.
My office address and telephone number are:
__________________________________________________________________
__________________________________________________________________
_______________________________________________________________.
2. I am a duly sworn peace officer presently employed by
____________
______________________________, in the County of _____________,
in
the State of California.
3. On ________ (date) I personally interviewed ______________
(victim)
at _____ a.m./p.m. at ________________ (address). The victim
resides at ___________________ (address, telephone number, and
name
of facility, if applicable).
4. There is probable cause to believe that:
(a) ________________________________________________ (Victim)
is substantially unable to manage his or her financial
resources or to resist fraud or undue influence, and
(b) There exists a significant danger the victim will lose all
or
a portion of his or her property as a result of fraud or
misrepresentations or the mental incapacity of the victim, and
(c) There is probable cause to believe that a crime is being
committed against the victim, and
(d) The crime is connected to the victim's inability to manage
his or her financial resources or to resist fraud or undue
influence, and
(e) The victim suffers from that inability as a result of
deficits
in one or more of the following mental functions:
INSTRUCTIONS TO PEACE OFFICER: CHECK ALL BOXES THAT APPLY:
A( ALERTNESS AND ATTENTION
( 1. Levels of arousal. (Lethargic, responds only to
vigorous
and persistent stimulation, stupor.)
( 2. Orientation. Person ____ Time ____ (day, date, month,
season, year), Place ____ (address, town, state),
Situation ____ (why am I here?).
( 3. Ability to attend and concentrate. (Give detailed
answers
from memory, mental ability required to thread a
needle.)
B( INFORMATION PROCESSING
Ability to:
( 1. Remember, i.e., short- and long-term memory, immediate
recall. (Deficits reflected by: forgets question
before
answering, cannot recall names, relatives, past
presidents,
events of past 24 hours.)
( 2. Understand and communicate either verbally or otherwise.
(Deficits reflected by: inability to comprehend
questions,
follow instructions, use words correctly or name
objects;
nonsense words.)
( 3. Recognize familiar objects and persons. (Deficits
reflected
by: inability to recognize familiar faces, objects,
etc.)
( 4. Understand and appreciate quantities. (Perform simple
calculations.)
( 5. Reason using abstract concepts. (Grasp abstract aspects
of
his or her situation; interpret idiomatic expressions or
proverbs.)
( 6. Plan, organize, and carry out actions (assuming physical
ability) in one's own rational self-interest. (Break
complex tasks down into simple steps and carry them
out.)
( 7. Reason logically.
C( THOUGHT DISORDERS
( 1. Severely disorganized thinking. (Rambling, nonsensical,
incoherent, or nonlinear thinking.)
( 2. Hallucinations. (Auditory, visual, olfactory.)
( 3. Delusions. (Demonstrably false belief maintained
without or
against reason or evidence.)
( 4. Uncontrollable or intrusive thoughts. (Unwanted
compulsive
thoughts, compulsive behavior.)
D( ABILITY TO MODULATE MOOD AND AFFECT
Pervasive and persistent or recurrent emotional state which
appears severely inappropriate in degree to the patient's
circumstances.
Encircle the inappropriate mood(s):
Anger Euphoria Helplessness
Anxiety Depression Apathy
Fear Hopelessness Indifference
Panic Despair
5. The property at risk is identified as, but not limited to, the
following:
Bank account located at:________________________________________
(name, telephone number, and address
of the bank branch)
Account number(s):______________________________________________
Securities/other funds located at:______________________________
(name, telephone number,
and address of
financial institution)
Account number(s):______________________________________________
Real property located at:_______________________________________
(address)
Automobile described as: _______________________________________
(make, model/color)
_______________________________________
(license plate number and state)
Other property described as:____________________________________
Other property located at:______________________________________
6. A criminal investigation will ( will not ( be commenced
against ________________________________________________________
(name, address, and telephone number)
for alleged financial abuse.
BLOCKS 1, 2, AND 3 MUST BE CHECKED IN ORDER
FOR THIS DECLARATION TO BE VALID:
( 1. I am a peace officer in the county
identified above.
( 2. I have consulted concerning this case with a supervisor
in the county's adult protective services agency who
has signed below, indicating that he or she concurs
that, based on the information I provided to him
or her, or based on information he or she obtained
independently, this declaration is warranted under
the circumstances.
( 3. I have consulted concerning this case with an
individual qualified to perform a mental status
examination.
_______________________________________________________
Signature of Declarant Peace Officer
_______________________________________________________
Date
_______________________________________________________
Signature of Concurring Adult Protective
Services Supervisor
2955. Nothing in this chapter shall prohibit or restrict a public
guardian from undertaking any other proceeding authorized by law.
SEC. 2. Section 15610.30 of the Welfare and Institutions Code is
amended to read:
15610.30. (a) "Financial abuse" means a situation in which one or
both of the following apply:
(1) A person, including, but not limited to, one who has the care
or custody of, or who stands in a position of trust to, an elder or a
dependent adult, takes, secretes, or appropriates their money or
property, to any wrongful use, or with the intent to defraud.
(2) A situation in which all of the following conditions are
satisfied:
(A) An elder (who would be a dependent adult if he or she were
between the ages of 18 and 64 years) or dependent adult or his or her
representative requests that a third party transfer to the elder or
dependent adult or to his or her representative, or to a court
appointed receiver, property that meets all of the following
criteria:
(i) The third party holds or has control of the property.
(ii) The property belongs to, or is held in express trust,
constructive trust or resulting trust for, the elder or dependent
adult.
(iii) The ownership or control of the property was acquired in
whole or in part by the third party or someone acting in concert with
the third party from the elder or dependent adult at a time when the
elder or dependent adult was a dependent adult or was a person who
would have been a dependent adult if he or she had then been between
the ages of 18 and 64 years.
(B) Despite the request for the transfer of property, the third
party without good cause either continues to hold the property or
fails to take reasonable steps to make the property readily available
to the elder or dependent adult, to his or her representative or to
a court appointed receiver.
(C) The third party committed acts described in this paragraph in
bad faith. A third party shall be deemed to have acted in bad faith
if the third party either knew or should have known that the elder or
dependent adult had the right to have the property transferred or
made readily available. For purposes of this subdivision, a third
party should have known of this right if, on the basis of the
information received by the third party, it is obvious to a
reasonable person that the elder or dependent adult had this right.
(b) For the purpose of this section, the term "third party" means
a person who holds or has control of property that belongs to or is
held in express trust, constructive trust or resulting trust for an
elder or dependent adult.
(c) For the purposes of this section, the term "representative"
means an elder or dependent adult's conservator of the estate, or
attorney-in-fact acting within the authority of the power of
attorney.
SEC. 3. If both this bill and AB 2107 are enacted and both bills
amend Section 15610.30 of the Welfare and Institutions Code, the
amendment to Section 15610.30 made by AB 2107 shall prevail over the
amendment to that section made by this act, whether AB 2107 is
enacted prior to, or subsequent to, the enactment of this act.
SEC. 4. The provisions of this act are severable. If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.