BILL ANALYSIS
SB 1742
Page 1
Date of Hearing: June 21, 2000
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Dion Aroner, Chair
SB 1742 (Hughes) - As Amended: June 15, 2000
SENATE VOTE : 38-0
ASSEMBLY JUDICARY COMMITTEE: 9-3
SUBJECT : Financial abuse of elderly persons: asset protection
SUMMARY : Authorizes the public guardian to take control or
possession of an elderly individual's assets, without a court
order, under certain circumstances. Specifically, this bill :
1)Permits a public guardian in a qualified county to take
immediate control of property belonging to a person 65 years
of age or older upon receipt of a signed declaration of a
peace officer if:
a) The peace officer finds probable cause to believe the
elder is unable to manage his or her finances;
b) There is significant danger that the elder person will
lose property as a result of fraud, misrepresentation, or
his or her mental incapacity;
c) There is probable cause to believe a crime is being
committed against the elder person connected to his or her
inability to manage financial resources due to mental
incapacity;
d) The officer has consulted with an individual qualified
to perform a mental status examination; and
e) The declaration has been signed by a member of the
county's financial abuse specialist team, as specified.
1)Defines a qualified county as one that has the following, as
determined by the public guardian:
a) A multi-disciplinary financial abuse specialist team;
b) Sufficient law enforcement personnel with expertise in
the assessment of competence; and
c) A law enforcement unit devoted to investigating elder
financial abuse and enforcing applicable laws.
1)Requires the financial abuse specialist team to include
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individuals trained in prevention, identification and
treatment of financial abuse of elders, and to include, at
least:
a) a mental health professional,
b) a representative of the public guardian,
c) a law enforcement agent,
d) a representative of the district attorney,
e) a medical professional,
f) a social worker,
g) a county adult protective services worker,
h) a representative of the county long-term care ombudsman,
i) a representative of a financial institution, and
j) an attorney specializing in elder law.
1)Requires a peace officer, in order to issue the declaration,
to be part of a financial abuse specialist team and to have
completed, or participated as a lecturer for, a certified
financial abuse training course within the last 36 months, or
to have consulted with a peace officer who meets those
requirements and obtained his or her signature on the
declaration.
1)Requires the declaration to be transmitted to the public
guardian within 24 hours of being signed.
1)Authorizes the public guardian to rely on the information
contained in the declaration in order to issue a written
recordable certification of that fact and take control of the
elder's property.
1)Specifies that the issuance of the declaration does not
require the public guardian to take control of property nor
determine that the elder requires a conservator, and that a
public guardian acting in good faith is not liable when taking
control of the elder person's property.
1)Requires a public guardian who has taken control of a person's
property to:
a) Ensure, as is practical, that reasonable living expenses
and debts of the elder are paid.
b) Attempt to find someone with legal authority to manage
the elder person's estate, or if such a person is not
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available, attempt to find a family member willing to
manage the estate.
c) If no one can be located to manage the person's estate,
proceed with measures for the appointment by the court of a
conservator.
1)Specifies that a public guardian who has taken control of an
elder person's property is entitled to reasonable fees,
payable from the elder person's estate, if certain conditions
are met.
1)Permits an elderly person, who is the subject of a
declaration, to petition the superior court for a petition
quashing it. If the court finds sufficient evidence to
justify the public guardian's taking control of the elder's
property, permits the court to:
a) Order disbursements from the elder's assets as are
reasonably needed to meet his or her needs;
b) Appoint a temporary conservator;
c) Deny the petition; and/or
d) Award reasonable attorney's fees from the elder's
estate.
1)Requires the program established in the bill to be coordinated
with existing county adult protective services programs.
1)Makes a technical change to the definition of "elder abuse" in
the Elder Abuse and Dependent Adult Civil Protection Act for
purposes of clarification.
EXISTING LAW
1)Establishes the Elder Abuse and Dependent Adult Civil
Protection Act which defines abuse of an elder or dependent
adult, including financial abuse, and specifies the
responsibilities of mandated reporters, county adult
protective services agencies, local law enforcement, and other
public and private agencies.
1)Requires the county adult protective services agency and local
law enforcement to investigate known or suspected instances of
abuse, including financial abuse, that occurs outside of a
long-term care facility.
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1)Permits adult protective service agencies to use
multidisciplinary personnel teams, comprised of two or more
persons trained in the prevention, identification, and
treatment of adult abuse, in order to obtain information and
records necessary to provide protective services.
1)Authorizes the public guardian to take possession or control
of a person's property if the public guardian determines that
the person requires a guardian or conservator and the public
guardian intends to apply to the court for appointment.
1)Authorizes a public guardian, when he or she is authorized to
take control of an individual's property, to issue and record
a written certification of that fact which remains in effect
for five days. Requires financial institutions to surrender to
the public guardian the property of the proposed ward or
conservatee during the time the certification is in effect.
FISCAL EFFECT : No effect on the General Fund
COMMENTS :
1)According to the author, as the aging population increases,
the number of individuals with age-related dementia who are
vulnerable to financial abuse is growing. Con-artists
routinely prey on individuals who cannot understand that they
are in danger. The public guardian currently investigates
cases of abuse and can take control of an elder or dependent
adult's assets for five days, but only if the public guardian
intends to apply for appointment as the person's conservator.
The five-day freeze allows the assets to be protected while
the public guardian pursues the appointment by the court.
However, if the public guardian lacks resources to become the
conservator and is unable to take control of the property,
even if other legal action is eventually taken, it is often
too late to safeguard the estate. This bill is intended to
provide an alternative means of offering immediate protection
for an elder person's property.
The sponsor of the bill, the California Commission on Aging,
believes current law is not sufficient to protect a victim
against asset loss during the time an investigation is in
progress. According to the Commission, the bill will give law
enforcement a tool it needs to "prosecute the most frequent
instances of financial abuse of the elderly, those of the
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career criminal who specifically targets the most vulnerable
of our elderly."
1)Advocates for the bill point to findings from a hearing held
November 18, 1997, by the Assembly Committee on Public Safety,
called "Invisible Crimes: What Can the Legislature Do to
Prevent the Physical and Financial Abuse of the Elderly?"
Among the findings:
a) A Virginia study of elder financial abuse that found
that 70% of victims suffered from mental disabilities, of
which 24% suffered from severe mental disabilities, and 60%
suffered from some form of physical incapacity.
b) The San Francisco District Attorney reported that the
elderly are at an increased risk of financial victimization
because they tend to be trusting and trustworthy, often
live alone, are isolated and lonely, may be unsophisticated
in money matters, may be unaware of the true value of
assets acquired years earlier, are easily identifiable, and
rarely report their victimization.
1)Protection and Advocacy, Inc., (PAI) and California Advocates
for Nursing Home Reform (CANHR) are opposed to the bill,
arguing it deprives elderly persons of due process by
permitting them to be treated as mentally incompetent without
their having been adjudicated incompetent, and by allowing the
public guardian to seize their assets without due process.
CANHR asserts that fraud, conservatorship and elder abuse laws
are already in place, as is the adult protective services
system, to protect vulnerable elders against fiduciary abuse.
If the problem is that the judicial process is not timely
enough, that problem should be addressed, rather than
disposing of the rights of elderly persons.
PAI and CANHR also raise concerns over provisions in the bill
that permit costs related to taking control of an elderly
person's assets to be paid from those assets without court
process, which they argue "adds insult to injury."
Currently, county adult protective service agencies are
responsible for investigating all cases of abuse outside of
long-term care facilities. Under this bill, a public guardian
could receive a declaration from a police officer and proceed
to freeze a person's assets without Adult Protective Services
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(APS) even knowing about the case. APS sits on the financial
abuse specialist team, but is not required to be a signatory
on, or even to be aware of, the declaration. The author may
wish to amend the bill to require the concurring signature on
the declaration to be from an APS supervisor, rather than a
member of the financial abuse specialist team, who may be a
private citizen, such as a banker or therapist. APS is the
publicly accountable agency with responsibility for the
investigation of abuse and the care of victims and would seem
to be an appropriate and necessary participant in the process.
1)The bill requires a public guardian who takes possession or
control of an elder's assets to seek a legally responsible
party, if one exists, or to proceed to have one named by the
court. The author may wish to specify the timeframe in which
this is to take place to avoid a situation in which an elderly
person's assets are held indefinitely without court oversight.
1)This bill is substantially similar to the author's SB 1868 of
1998 and SB 163 of 1999, both of which were passed by the
Legislature, but vetoed by the governor. Both bills, unlike
this bill, would have set up pilot projects. In his veto of
SB 163, Governor Davis stated. "The 1999-2000 Budget Act
included a $34.9 million augmentation for the Adult Protective
Services program to allow for enhanced investigation of
reports of elder and dependent abuse, including financial
abuse?In addition, public guardians have the existing legal
authority to avail themselves of the courts to temporarily
freeze the assets of potential victims. If there is a
demonstrated need for further legislation to facilitate
appropriate action at the county level, I will entertain it."
Because this bill does not impose new costs on the state, the
author believes the Governor will be more favorably disposed
toward it.
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General Lockyer
California Long Term Care Ombudsman Association
California Senior Legislature
Congress of California Seniors
SB 1742
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County of Sacramento
San Bernardino County
Santa Clara County Board of Supervisors
Commission on Aging
Opposition
California Advocates for Nursing Home Reform
Protection and Advocacy, Inc.
Analysis Prepared by : Sherry Novick / HUM. S. / (916)
319-2247