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

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-Amended.html

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BILL NUMBER: AB 381	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 24, 2013
	AMENDED IN ASSEMBLY  APRIL 11, 2013
	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  permit a court to award  
provide that a person may, in the court's discretion, be liable for
 reasonable attorney's fees and costs in these actions, except
as specified. The bill would specifically apply these provisions to
property belonging to an elder or a dependent adult. The bill would
make technical changes with regard to the nonexclusive character of
the remedy provided.
   (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  permit a court
to award   provide that a person may,  in the
court's discretion, be liable for  reasonable attorney's fees
and costs under these provisions and those described above, except as
specified.
   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 a conservatee,
a minor, 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.  Except   In addition, except
 as otherwise required by law, including Section 15657.5 of the
Welfare and Institutions Code,  a court may, in its 
 the person may, in the court's  discretion,  award
  be liable for  reasonable attorney's fees and
costs  to the prevailing party  . The remedies
provided in this section shall be in addition to any other remedies
available in law to a person authorized to bring an action pursuant
to this part.
  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
  that belongs  to a principal under a power of
attorney, or has taken, concealed, or disposed of property  that
belongs to a principal under a power of attorney  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. Except   surcharge.
In addition, except  as otherwise required by law, including
Section 15657.5 of the Welfare and Institutions Code,  a
court may, in its discretion, award   the person may, in
the court's discretion, be liable for  reasonable attorney's
fees and costs to the prevailing party. 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.