Bill Text: CA AB381 | 2013-2014 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Estates and trusts: undue influence and elder abuse.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2013-08-13 - Chaptered by Secretary of State - Chapter 99, Statutes of 2013. [AB381 Detail]

Download: California-2013-AB381-Introduced.html

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BILL NUMBER: AB 381	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Chau

                        FEBRUARY 14, 2013

   An act to amend Sections 859 and 4231.5 of the Probate Code,
relating to estates and trusts.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 381, as introduced, Chau. Estates and trusts: undue influence
and elder abuse.
   (1) Existing law provides that a person found liable for taking,
concealing, or disposing of property belonging to the estate of a
decedent, conservatee, minor, or trust through the use of undue
influence in bad faith, or through the commission of elder or
dependent adult financial abuse, is liable for twice the value of the
property.
   This bill would also provide for this person's liability for
reasonable attorney's fees and costs.
   (2) Existing law provides that a person who, in bad faith,
wrongfully takes, conceals, or disposes of property belonging to a
principal under a power of attorney is liable for twice the value of
the property recovered by an action to recover the property or for
surcharge.
   This bill would extend this liability to a person who has taken,
concealed, or disposed of property by the use of undue influence in
bad faith or through the commission of elder or dependent adult
financial abuse, as defined. The bill would also provide for
liability for reasonable attorney's fees and costs under these
provisions and those described above.
   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 859 of the Probate Code is amended to read:
   859.  If a court finds that a person has in bad faith wrongfully
taken, concealed, or disposed of property belonging to the estate of
a decedent, conservatee, minor, or trust, or has taken, concealed, or
disposed of the property by the use of undue influence in bad faith
or through the commission of elder or dependent adult financial
abuse, as defined in Section 15610.30 of the Welfare and Institutions
Code, the person shall be liable for twice the value of the property
recovered by an action under this part  and shall also be liable
for reasonable attorney's fees and costs  . The  remedy
  remedies  provided in this section shall be in
addition to any other remedies available in law to a trustee,
guardian or conservator, or personal representative or other
successor in interest of a decedent.
  SEC. 2.  Section 4231.5 of the Probate Code is amended to read:
   4231.5.  (a) If the attorney-in-fact breaches a duty pursuant to
this division, the attorney-in-fact is chargeable with any of the
following, as appropriate under the circumstances:
   (1) Any loss or depreciation in value of the principal's property
resulting from the breach of duty, with interest.
   (2) Any profit made by the attorney-in-fact through the breach of
duty, with interest.
   (3) Any profit that would have accrued to the principal if the
loss of profit is the result of the breach of duty.
   (b) If the attorney-in-fact has acted reasonably and in good faith
under the circumstances as known to the attorney-in-fact, the court,
in its discretion, may excuse the attorney-in-fact in whole or in
part from liability under subdivision (a) if it would be equitable to
do so.
   (c) If a court finds that a person has in bad faith wrongfully
taken, concealed, or disposed of property belonging to a principal
under a power of attorney,  or has taken, concealed, or disposed
of property by the use of undue influence in bad faith or through the
commission of elder or dependent adult financial abuse, as defined
in Section 15610.30 of the Welfare and Institutions Code,  the
person shall be liable for twice the value of the property recovered
by an action to recover the property or for surcharge  and shall
also be liable for reasonable   attorney's fees and costs
 . The  remedy   remedies  provided in
this section shall be in addition to any other remedies available in
law to the principal or any successor in interest of the principal.