BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1742|
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THIRD READING
Bill No: SB 1742
Author: Hughes (D), et al
Amended: 4/12/00
Vote: 21
SENATE JUDICIARY COMMITTEE : 9-0, 4/4/00
AYES: Burton, Escutia, Haynes, Morrow, O'Connell, Peace,
Sher, Wright, Schiff
SUBJECT : Adult abuse
SOURCE : State of California Commission on Aging; Estate
Planning,
Trust and Probate Law Section of the State Bar
of California
DIGEST : This bill:
1. Authorizes trained peace officers to issue a
declaration, as specified, that an elder person is
unable to manage his or her financial resources or to
resist fraud or undue influence, that there exists
significant danger that the elder person would lose all
or a portion of his/her property as a result of the
fraud or undue influence, and that there is probable
cause to believe a crime is being committed against that
elder person.
2. Authorizes the public guardian to then immediately take
charge of the elder person's property without
determining whether a conservator of the elder's estate
CONTINUED
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should be appointed and whether the public guardian
would apply for the appointment.
3. Establishes a process whereby a person identified as a
victim in the peace officer's declaration may bring an
ex parte petition to quash the certification.
4. Authorizes the court, if it determines that there was
sufficient evidence for the public guardian's
certification, to order disbursements for the elder
person's needs out of the frozen estate, or to appoint a
temporary conservator and to award reasonable attorney's
fees to the elder person's attorney.
ANALYSIS : Existing law provides various criminal and
civil sanctions for offenses involving the abuse of an
elder or independent adult.
Existing law provides for the public guardian of a county
to take possession or control of property that is subject
to loss, injury, waste or misappropriation, if the public
guardian determines the requirements for appointment of a
guardian or conservator of the estate are satisfied and the
public guardian intends to apply for the appointment.
[Probate Code Section 2900.] A written certification to
this effect by the public guardian is effective for five
days when issued, and may be recorded in the county in
which a person's real property is located. A financial
institution receiving the public guardian's written
certification is required to provide to the public guardian
information regarding property it holds in the name of the
proposed ward or conservatee and to surrender property that
is subject to waste, loss, or misappropriation. [Probate
Code Section 2901.]
This bill would authorize the public guardian of a
qualified county to take control of property belonging to
an elder person and to issue a certification of that fact
to a financial institution as provided under Probate Code
Section 2901, without first determining that the
requirements for appointment of a guardian or conservator
of the estate are satisfied and that the public guardian
intended to apply for the appointment as guardian or
conservator of the endangered estate. The bill would
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limit this authority to the public guardian of a county
that has all of the following: a) a financial abuse
specialist team (FAST); b) sufficient law enforcement
trained in assessing competence; c) a law enforcement unit
dedicated to investigation of elder financial abuse and
enforcement of laws applicable to elder abuse. The public
guardian would base the decision to seize the property on a
declaration filed by an authorized peace officer.
This bill would authorize a peace officer, upon completion
of a check-off competence assessment form and signed
concurrence by a member of the FAST, to issue a declaration
to the public guardian stating that:
1. There is probable cause that the mentally impaired elder
is substantially unable to manage his or her financial
affairs or to resist fraud or undue influence; and,
2. There is significant danger that the elder person will
lose all or a portion of his or her property due to
fraud or misrepresentation or the elder's mental
incapacity; and,
3. There is probable cause to believe that a crime is being
committed against the elder person; and,
4. The crime being committed is connected to the mental
impairment of the elder; and,
5. The victim suffers from that inability as a result of
deficits in one or more of specified mental functions.
This bill would then authorize the public guardian to take
immediate possession and control of the elder's property
and to issue a recordable certificate to that effect. An
elder person who is the subject of a certification issued
by the public guardian may petition the court for an order
quashing the certification. The court would be required to
quash the certification if the court finds that there was
insufficient basis for the certification to have been
issued.
This bill would authorize the court hearing a petition to
quash the public guardian's certification to order, if
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sufficient evidence is found to justify the certification,
disbursements from the elder person's estate for his or her
needs, the appointment of a temporary conservator, and an
award of reasonable attorney's fees to the elder person's
attorney from the estate.
Finally, this bill would entitle the public guardian who
has taken possession of property under this bill to
reasonable costs incurred in protecting the property,
including reasonable attorney's fees, if specified
conditions were met.
Under this bill, there would be at least 10 members of a
financial abuse specialist team (FAST), at least one from
each of the following categories:
1. psychiatrists, psychologists, marriage, family and child
counselors, clinical social workers, or other licensed
mental health professional;
2. public guardian;
3. police or other law enforcement agent;
4. district attorney's office;
5. medical personnel with training in health services;
6. social workers with experience in prevention of elder
abuse;
7. member of the county adult protective services program;
8. member of the county long-term care ombudsman program;
9. representative of a financial institution;
10.attorney proficient in the practice of elder abuse.
Further, at least one member of FAST shall be:
1. trained in the prevention of financial abuse of elder
persons;
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2. trained in the identification of financial abuse of
elder persons;
3. trained in the treatment of financial abuse of elder
persons;
4. trained in all of the above.
The FAST would be required to contain members who, in the
aggregate, are qualified to provide a broad range of
services related to the financial abuse of the elder
persons.
Under the provisions of the newly enacted laws relating to
elderly abuse, each county is to establish a
multi-disciplinary team that would respond within 10 days
to reported incidents of elderly abuse, including financial
abuse. These multi-disciplinary teams are to be composed
of 1) psychiatrists, or other trained counseling personnel;
2) police officers; 3) medical personnel with training in
health services; 4) social workers with experience or
training in prevention of abuse of the elderly; and 5)
public guardians. This bill, however, would mandate 10
different classes of persons to be on the FAST.
This bill would make a clarifying amendment to the current
Welfare and Institutions Code definition of "financial
abuse" that affects transfers of property to or from third
parties, where the third party commits acts of bad faith in
regard to such transfers.
Background :
With a few changes, this bill is similar to SB 1868
(Hughes, 1998) and SB 163 (Hughes, 1999). SB 1868 was
vetoed by then-Governor Wilson as unnecessary, as Los
Angeles County had already been operating such a pilot
project for five years and that the 1998-99 Budget Act
appropriated $33.2 million to enhance county adult
protective services.
Governor Davis vetoed SB 163 on the same basis, stating
that the 1999-2000 Budget Act included a $34.9 million
augmentation for Adult Protective Services program "to
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allow for enhanced investigation of reports of elder and
dependent abuse, including financial abuse, and services
for victims including emergency shelter, in-home protective
care, food and transportation. In addition, public
guardians have the existing legal authority to avail
themselves of the courts to temporarily freeze the assets
of potential victims." The message concluded that "[I]f
there is a demonstrated need for further legislation to
facilitate appropriate action at the county level, I will
entertain it."
Governor's objections to SB 163 resolved
Proponents argue that in its present form, the Governor's
objections to the passage of SB 163 (Hughes, 1999) are
overcome. In contrast to what would have been required of
public guardians under SB 163, the public guardian under SB
1742 would not be required to act if a peace officer were
to submit a declaration as defined in this bill. This is
so, even under current law, but at least, proponents state,
more incidents will be brought to the public guardian's
attention because of the involvement of peace officers and
the expanded version of the FAST, and the expedited
handling of potential financial abuse of the elderly will
be promoted.
Prior legislation
SB 1868 (Hughes) passed the Senate Floor 36-0, 8/30/98 and
SB 163 (Hughes) passed the Senate Floor 30-7, 9/9/98.
Noes: Brulte, Haynes, Knight, Leslie, Lewis, Mountjoy,
Poochigian.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/12/00)
State of California Commission on Aging; Estate Planning,
Trust and
Probate Law Section of the State Bar of California
(Source)
Board of Supervisors, County of Santa Clara
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ARGUMENTS IN SUPPORT : In 1998, SB 1780 (Murray), SB 1715
(Calderon) and SB 2199 (Lockyer) were enacted to strengthen
the laws against abuse of the elderly and dependent adults.
These bills redefined financial abuse, broadened mandated
reporting requirements in cases where suspected abuse
(including financial abuse) is being perpetrated on the
elderly and dependent adults, and imposed penalties for
crimes involving financial abuse against the elderly.
Though the results of these three bills have yet to be
measured (two became effective January 1, 1999, and the
other May 1, 1999), proponents of this bill state that they
are not enough, considering the problems encountered daily
in the field of financial abuse of the elderly.
The Commission on Aging and the Senior Legislature report
that cases of fiduciary abuse of the fast-growing elderly
population are multiplying, and that law enforcement
officers and financial institutions have expressed
frustration with the current system of protection given to
the elderly while their cases are being investigated.
According to the sponsor, many people assume that the
public guardian is always available to assist a victim or
potential victim during the course of an investigation.
This is not the case, however, as a public guardian is not
authorized by law to intercede in a situation unless he or
she intends to seek appointment as the conservator or
guardian of the victim. Moreover, the sponsor contends
that the public guardian is inadequately funded and thus
unable to intercede in many cases. This bill would create
pilot programs to reduce incidences of financial abuse of
the elderly and dependent adults by utilizing resources
available to peace officers, and by expanding the public
guardian's authority to issue a five-day hold on vulnerable
accounts and other property.
This bill, according to the sponsor, reflects one of the
recommendations made to the Commission on Aging during a
statewide summit to examine California's responsiveness to
the growing incidence of elder abuse. The California Elder
Abuse Summit for Empowerment (CEASE '97) was attended by
over 300 leaders of state and local social services, law
enforcement, health care providers, and senior
organizations.
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RJG:jk 4/12/00 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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