BILL ANALYSIS
SB 1742
Page 1
SENATE THIRD READING
SB 1742 (Hughes)
As Amended July 6, 2000
Majority vote
SENATE VOTE :38-0
JUDICIARY 9-3 HUMAN SERVICES 5-1
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|Ayes:|Kuehl, Aroner, Bock, |Ayes:|Aroner, Bock, Ducheny, |
| |Corbett, Knox, Longville, | |Dutra, |
| |Shelley, Steinberg, | |Strom-Martin |
| |Wiggins | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Ackerman, House, |Nays:|Ashburn |
| |McClintock | | |
| | | | |
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SUMMARY : Provides new authority to public guardians to reduce
financial abuse perpetrated against mentally impaired elders.
Specifically, this bill :
1)Authorizes the public guardian of a qualified county to take
immediate control of property belonging to an elder person, in
accordance with the following procedures:
a) In order to qualify, each county must have: i)
sufficient law enforcement personnel who have experience
conducting competency assessments; and, ii) a law
enforcement unit devoted to investigating and preventing
elder financial abuse;
b) A specially trained peace officer would be authorized to
issue a specified declaration to a public guardian
concerning an elder person if certain conditions are met,
including a determination by the officer that there exists
a significant danger that the elder person will lose all or
a portion of his or her property as a result of fraud or
misrepresentation or the mental incapacity of the elder
person; and,
c) In response to a peace officer's declaration, the public
guardian would be authorized, but not required, to issue a
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written certification taking immediate control of an elder
person's property, which is effective for five days,
without the need to pursue a conservatorship for the
elder's estate.
2)Provides that a public guardian acting in good faith is not
liable when taking control of property pursuant to this bill.
3)Provides that an elder person who is the subject of a
certification by the public guardian may challenge it in
court.
4)Provides that if the court determines that there is sufficient
evidence to support the certification, the court may: a)
order disbursements from the alleged victim's assets, as are
reasonably needed to address the alleged victim's needs; b)
appoint a temporary conservator of the alleged victim's
estate; c) deny the petition; or, d) award reasonable
attorney's fees to respondent's attorney from the victim's
estate.
5)Provides that a public guardian who has taken control of the
property of an elder person under the provisions of this bill
is entitled to petition the court for the guardian's
reasonable fees and costs, including attorney's fees, if
certain conditions are met.
6)Requires the public guardian in such cases to exercise
reasonable care to see that the reasonable living expenses and
legitimate debts of the elder person are addressed.
7)Makes clarifying amendments to the current definition of
"financial abuse" in the Elder Abuse and Dependent Adult Civil
Protection Act.
FISCAL EFFECT : None
COMMENTS : According to the author, this bill will enhance the
authority of public guardians to reduce financial abuse
perpetrated against mentally impaired elders by allowing them to
take immediate control of the victim's property without the need
to pursue a conservatorship. In support of the bill, the author
states that "there are several tools available to government
entities to address instances of financial abuse, but most
require several days (at a minimum) to be implemented. Under
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current law, the assets of a potential victim can be temporarily
frozen by the Public Guardian under very narrowly defined
circumstances (i.e., the Public Guardian is prohibited from
freezing assets unless he or she personally intends to be
appointed as conservator of the victim's estate). In many
cases, however, other possible remedies exist which are more
appropriate. SB 1742 would allow the Public Guardian to freeze
assets of a vulnerable elder while pursuing one of these
alternate remedies. This bill contains several provisions to
ensure that proper care is exercised whenever an elder's assets
are frozen."
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. The principal
difference between those bills and the present measure is that
the earlier bills were set up as pilot projects.
In addition to the provisions enhancing the authority of public
guardians to take immediate control of the assets of certain
mentally impaired elders, as described above, this bill would
also make a clarifying change to the current definition of
"financial abuse" in Welfare and Institutions Code Section
15610.30, which is contained in the Elder Abuse and Dependent
Adult Civil Protection Act. The proposed changes clarify the
provisions affecting transfers of property to or from third
parties, where the third party commits acts of bad faith in
regard to such transfers. (See Welfare and Institutions Code
section 15610.30(a)(2)(C).)
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334
FN: 0005638