LEGISLATIVE REPORT: An act to add Section 86 to the Probate Code, and to amend Section 15610.30 of, and to add Section 15610.70 to, the Welfare and Institutions Code, relating to undue influence. Introduced by Assemblymember Dickinson (D-Sacramento) on January 17, 2013.
Elder Law & Advocacy strongly supports the passage of Assembly Bill 140.
PURPOSE OF LEGISLATION
AB 140 updates the definition of “undue influence” and provides a concrete list of factors for a court to consider.
The proposed definition would be “excessive persuasion that causes another person to act or refrain from action and results in inequity.”
Currently, the California Civil Code defines “undue influence” as:
- Using confidence of or real or apparent authority over another person to obtain an unfair advantage;
- Taking an unfair advantage over another person’s weakness of mind; or
- Taking a grossly oppressive and unfair advantage of another person’s necessities or distress.
BACKGROUND AND JUSTIFICATION OF POSITION
The current definition of “undue influence,” which has not been updated since 1872, does not adequately describe the nuances and changing faces of elder abuse situations. For instance, the victims would not be protected by the traditional definition in the following scenarios:
- The victim is not in a confidential relationship with the perpetrator;
- The victim’s cognitive vulnerability, while present, does not rise to the level of “weakness of mind.”
- The victim has considerable assets.
Therefore, an updated, modernized definition of “undue influence” will capture these elder abuse situations and provide clear guidelines for judges and juries to determine if the senior has been unduly influenced.
An updated, modernized definition will help combat the elder abuse epidemic. According to the California Department of Justice, an estimated 1 in 20 elders is a victim of neglect or physical, psychological, or financial abuse. The National Center on Elder Abuse estimates that 90% of abusers are family members and other individuals who are close to the victim, such as adult children, spouses, and partners.
Certainly, elder financial abuse will continue to grow as California’s senior population doubles to 6.4 million by 2025, as projected by the United States Census Bureau. In 2000, Adult Protective Service agencies received more than 53,000 reports of elder abuse; by 2006, the reports increased to more than 69,000.
The Senate Appropriations Committee placed the bill in the second reading file pursuant to Senate Rule 28.8. Senate Rule 28.8 states that the bill will move to full floor votes without any further committee action unless a legislator objects. It was passed by the Senate and sent to the Senate Appropriations Committee on June 25, 2013. The bill was passed by the Assembly on April 2, 2013.