Humboldt County residents should be aware of several new pieces of legislation proposed by the California Legislature dealing with undue influence in the area of elder abuse.
Assembly Bill 140 would change the definition of undue influence to mean excessive persuasion that causes another person to act or refrain from acting and results in inequity. This new definition eliminates the requirement that the influence overcome the free will of the alleged victim. In determining whether the result was produced by undue influence factors such as consideration of the victim’s vulnerability, the influencer’s apparent authority, whether the influencer knew or should have known of the victim’s vulnerability, the influencer’s acts or tactics, and the equity of the result will be taken into account.
Changing the definition of undue influence to include the equity of the result as a factor could present some issues. It is argued that this change would allow a disgruntled sibling to bring an action against another if he or she did not inherit equal assets on the death of the parent. Currently, the equity factor alone is not found to be sufficient to bring an action because the law currently provides that an inequitable result, without more, does not establish the element of undue influence or excessive persuasion.
Assembly Bill 381 would also change the remedies available for elder financial abuse. Existing law provides that a person who takes, conceals, or disposes of property belonging to the estate of a decedent, conservatee, minor, or trust by the use of undue influence and bad faith, or by elder or dependent adult financial abuse, is liable for twice the value of the property. This bill would provide that a person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs. This bill would also extend the liability for wrongful taking of property of a principal to those acts taken under a power of attorney.