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

NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Amended.html
BILL NUMBER: AB 381	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 1, 2013

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 amended, 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.  Existing law provides that this remedy is additional
to any other remedy available at law. 
   This bill would also provide for this person's liability for
reasonable attorney's fees and costs.  The bill would
specifically apply these provisions to property belonging to an elder
or a dependent adult. 
   (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,   a  conservatee,  a
 minor,  or   an elder, a dependent adult,
a  trust, or  the estate of a decedent, 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 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  , or a person authorized t   o bring an
action pursuant to the Elder Abuse and Dependent Adult Civil
Protection Act (Chapter 11 (commencing with Section 15600) of Part 3
of Division 9 of the Welfare and Institutions Code)  .
  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 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.                                           
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