Bill Text: CA SB278 | 2023-2024 | Regular Session | Amended

California Senate Bill 278

Bill Title: Elder abuse.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Engrossed) 2023-07-06 - July 10 hearing postponed by committee. [SB278 Detail]

Download: California-2023-SB278-Amended.html

Amended IN Senate May 16, 2023

Amended IN Senate May 04, 2023

Amended IN Senate April 10, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 278

Introduced by Senator Dodd
(Coauthors: Senators Min and Skinner)
(Coauthors: Assembly Members Bonta, Gipson, Muratsuchi, and Quirk-Silva)

February 01, 2023

An act to amend Section 15610.30 of the Welfare and Institutions Code, relating to elder abuse.

LEGISLATIVE COUNSEL'S DIGEST

SB 278, as amended, Dodd. Elder abuse.

Existing law, the Elder Abuse and Dependent Adult Civil Protection Act, establishes various procedures for the reporting, investigation, and prosecution of elder and dependent adult abuse. Existing law defines financial abuse for those purposes and provides that it occurs when, among other instances, a person or entity 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 for a wrongful use or with intent to defraud, or both. Existing law requires a person or entity to be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes the property and the person or entity knew or should have known that the conduct is likely to be harmful to the elder or dependent adult. Existing law requires the court to award specified costs if a defendant is found liable for financial abuse, as specified.

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.

This bill would add to the definition of “financial abuse” knowingly aiding and abetting in the taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. The bill would also define “assists” for those purposes. The bill would also specifically state that the above-described provision regarding when a person or entity is deemed to have taken property for a wrongful use includes when a person or entity assisted in taking, secreting, appropriating, obtaining, or retaining property for a wrongful use. The changes made by this bill would not apply to criminal prosecutions and, therefore, the bill would not expand the above-described crime. The bill would make the provisions severable.

Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO

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 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 for a wrongful use or with intent to defraud, or both.

(3) Knowingly aids and abets in the taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(4) 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 by undue influence, as defined in Section 15610.70.

(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use or assisted in taking, secreting, appropriating, obtaining, or retaining property for a wrongful use, if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property or assists in taking, secreting, appropriating, obtaining, or retaining the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.

(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, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a 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.

(e) (1) For the purposes of this section, when the person or entity is a mandatory reporter pursuant to this chapter, “assists” means to engage in either of the following:

~~(1)If a person is a mandated reporter pursuant to~~

(A) For a person or entity described in Section 15630.1 or 15630.2, executing a transaction with or processing a transaction on behalf of an elder or dependent adult for which both of the following apply:

~~(A)~~

(i) The elder or dependent adult interacts with ~~the person who is a mandated reporter~~ one or more employees of the entity described in subdivision (b) of Section 15630.1 or a person listed in subdivision (a) of Section 15630.2 in the process of requesting, initiating, or completing the transaction.

~~(B)(i)The mandated reporter fails~~

(ii) (I) The person or entity fails to act as a reasonable person or entity in a like position would, considering the surrounding facts and circumstances, including the transaction history of the elder or dependent adult, whether the transaction is aligned with prevailing business practices, and whether the elder or dependent adult exhibits multiple red flags, in executing the transaction with or processing the transaction on behalf of the elder or dependent adult.

~~(ii)~~

(II) For the purposes of this subparagraph, “red flags” refers to the behavioral and financial red flags enumerated in Elder Financial Exploitation Advisory in FinCEN Advisory FIN-2022-A002 by the United States Department of the Treasury.

~~(2)If a person is a mandated report~~

(B) For a mandated reporter pursuant to Section 15630, the mandated reporter fails to act as a reasonable person in a like position would, considering the surrounding facts and circumstances, including, but not limited to, any of the following:

~~(A)~~

(i) The vulnerability of the elder or dependent adult, taking into account the evidence described in paragraph (1) of subdivision (a) of Section 15610.70.

~~(B)~~

(ii) The extent to which the elder or dependent adult relied on the mandated reporter to handle their finances or for financial advice or financial decisions.

~~(C)~~

(iii) Any information the elder or dependent adult provided to the mandated reporter about the situation.

~~(D)~~

(iv) The mandated reporter’s past interactions with the elder or dependent adult and whether the elder or dependent adult’s behavior was markedly different than in their prior interactions with the mandated reporter.

~~(E)~~

(v) Whether the mandated reporter has a fiduciary duty to the elder or dependent adult.

~~(F)~~

(vi) Any instructions or information the mandated reporter has been given about the elder or dependent adult’s capacity or ability to make decisions.

~~(G)~~

(vii) Any trainings the mandated reporter has taken or should have taken, or information the mandated reporter has received or should have received, on the subjects of elder or dependent adult abuse and financial abuse.

(2) This subdivision does not affect the reporting requirements set forth in Sections 15630 to 15630.2, inclusive.
(f) (1) For purposes of subparagraph (A) of paragraph (1) of subdivision (e), a person or entity shall be deemed to have acted reasonably if the person or entity proves that, at the time that the transaction was requested, the person or entity gave the elder or dependent adult an explanation and warning, verbally and in writing, regarding the person’s or entity’s knowledge of, or suspicion of, financial abuse occurring with respect to that transaction, and if either of the following is met:
(A) If the elder or dependent adult has designated a trusted contact person to receive notification of any known or suspected financial abuse, or there is a joint holder on the account for which the transaction is requested, the person or entity contacted the trusted contact person or joint account holder and obtained their consent for the transaction.
(B) (i) If the person or entity was unable to communicate with and obtain the consent of a secondary authorized account holder or trusted contact person, or there was no joint account holder or designated trusted contact person, the person or entity refused the transaction, or notified the local adult protective services agency and law enforcement and held the transaction for 15 business days or until the local adult protective services agency or law enforcement informed the person or entity that the transaction should be completed. If, at any time during the 15-day period, the elder or dependent adult informs the person or entity that they do not wish to complete the transaction, the person or entity does not act reasonably if they complete the transaction anyway.
(ii) Notwithstanding any other law, for the purposes of clause (i), a person or entity is authorized to delay or refuse a requested transaction if the person or entity notified the local adult protective services agency and law enforcement.
(2) For the purposes of subparagraph (A) of paragraph (1) of subdivision (e), a nonsupervisory employee of an entity listed in subdivision (b) of Section 15630.1 may not be held personally liable in their individual capacity for violations of this section. However, this section does not affect the liability of the entity for its own acts or under the theory of respondeat superior.
~~(f)~~

(g) The changes made by the act that added this subdivision do not apply to criminal prosecutions pursuant to Section 15630.

~~(g)~~

(h) Nothing in this section is intended to, nor shall it be construed to, prevent or significantly interfere with any financial institution’s exercise of its powers under federal law.

(i) The provisions of this section are severable. If any provision of this section 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.