In the New Year for 2014 there are four new elder protection laws that will affect elder abuse cases in a positive way in California, AB 140 adds the definition of “undue influence” for the California Probate Code (Prob. Code) which generally governs the process of distributing a decedent’s assets and property. SB 272 limits the ability of non-government entities usage of symbols suggesting an affiliation with or approval from any military veteran entity or Veterans Service Organizations. AB 381 is an addition to the Prob. Code and aims to assist victims of financial abuse who cannot afford legal action. Lastly, AB 937 is also an addition to the Probate Code and provides protection for personal rights of a conservatee.
AB 140: Undue Influence
Under the new law, “undue influence” means excessive persuasion that causes a person to act or to not act in a way that causes an unfair result; the persuasion must overcome a person’s free will meaning that this influence controls a person’s decision-making.
In order to find “undue influence,” the law requires considering 4 things. First, how vulnerable the victim is and whether the influencer knew or should have known of this vulnerability are considered. There are many ways to show vulnerability, including evidence of illness, disability, or dependency. Second, if the influencer had apparent authority over the victim is considered. Some examples of authority status are doctors, lawyers, and family members. Third, the actions or tactics of the influencer are considered; for example, controlling a victim’s necessities, using intimidation, or starting changes to personal or property rights of the victim. Lastly, how unfair the result of this influence was is considered.
The law makes it clear that evidence of an unfair result by itself is not enough to show “undue influence.”
SB 272: Advertising: Military Endorsements
This bill prohibits using any symbol that implies a connection or endorsement of any military veteran entity or Veterans Service Organization (VSO) unless the entity or organization has explicitly approved.
Furthermore, any solicitation that uses a symbol in this manner, but does not have approval, must meet several requirements. First, it must clearly label such solicitation as not being endorsed by any military veteran entity or VSO and label any mailed envelopes as not being government documents. Second, the solicitation cannot use any title that would suggest a connection with any military veteran entity or VSO. Third, if the solicitation requests payment, it cannot also include a deadline for the payment without clearly explaining how the funds will be used and to which government agency the funds will be sent to. Fourth, the solicitation cannot suggest that there will be any form of consequence or penalty if no payment is made.
This law does not apply to any military veteran entity or VSO. Violation of this law is a misdemeanor and a person who is harmed because of violation of this law is entitled to recovery.
AB 381: Estates and Trusts: Undue Influence
This bill now allows attorney fees and costs to be awarded by the court for elders and dependent adults who are victims of bad faith power-of-attorney abuse that results in elder financial abuse; this is in addition to all of the other damages that are awardable to victims. With this bill in place, the ability to get legal help becomes more of a possibility because the courts now have the power to resolve the issue that many victims may be unable to pay for an attorney or legal services.
AB 937: Conservatee Rights
This bill limits a conservator’s control and prohibits control of a conservatee’s personal rights such as right to receive visitors, phone calls, and mail, unless the court has specifically limited a conservatee’s rights. (As a reminder, conservators are court appointed to manage an individual’s financial affairs and/or daily life) Furthermore, the law prohibits a conservator from hiring or referring to any business in which the conservator has a financial interest unless the court approves.
Please contact Evans Law Firm, Inc. if you need assistance with an elder abuse matter in California, call us at 415-441-8669 or email us at info@evanslaw.com
