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SB-496 Financial abuse of elder or dependent adults.(2019-2020)

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Date Published: 02/21/2019 09:00 PM
SB496:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill No. 496


Introduced by Senator Moorlach

February 21, 2019


An act to amend Sections 15630.1 and 15633.5 of the Welfare and Institutions Code, relating to elder or dependent adult abuse.


LEGISLATIVE COUNSEL'S DIGEST


SB 496, as introduced, Moorlach. Financial abuse of elder or dependent adults.
Existing law, the Elder Abuse and Dependent Adult Civil Protection Act, establishes procedures and requirements for the reporting, investigation, and prosecution of elder and dependent adult abuse. Existing law imposes various reporting requirements on mandated reporters of suspected financial abuse, as defined, and imposes a civil penalty for a violation of these provisions. Under existing law, all officers and employees of financial institutions, as defined, are mandated reporters of suspected financial abuse.
This bill would expand the category of mandated reporters of suspected financial abuse to include a broker-dealer and an investment adviser, as defined. The bill would authorize a mandated reporter of suspected financial abuse of an elder or dependent adult who makes a report to notify any third party who had previously been designated by the elder or dependent adult of the known or suspected financial abuse, and to temporarily delay a requested disbursement from an account of an elder or dependent adult or an account to which an elder or dependent adult is a beneficiary if specified conditions are met. The bill would provide a mandated reporter with civil and criminal immunity for any notification or temporarily disbursement delay made pursuant to these provisions.
Existing law authorizes information relevant to the incident of elder or dependent adult abuse to be given to specified investigators, including, among others, investigators from an adult protective services agency, a local law enforcement agency, and the probate court.
This bill would instead require information relevant to the incident of elder or dependent adult abuse to be given to those investigators.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 15630.1 of the Welfare and Institutions Code is amended to read:

15630.1.
 (a) As used in this section, “mandated reporter of suspected financial abuse of an elder or dependent adult” means a broker-dealer, an investment adviser, and all officers and employees of financial institutions.
(b) For purposes of this section, the following terms have the following definitions:

(b)As used in this section, the term “financial

(1) “Financial institution” means any of the following:

(1)

(A) A depository institution, as defined in Section 3(c) of the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)).

(2)

(B) An institution-affiliated party, as defined in Section 3(u) of the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)).

(3)

(C) A federal credit union or state credit union, as defined in Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752), including, but not limited to, an institution-affiliated party of a credit union, as defined in Section 206(r) of the Federal Credit Union Act (12 U.S.C. Sec. 1786(r)).

(c)As used in this section, “financial

(2) “Financial abuse” has the same meaning as in Section 15610.30.
(3) “Broker-dealer” has the same meaning as Section 25004 of the Corporations Code.
(4) “Investment adviser” has the same meaning as Section 25009 of the Corporations Code.

(d)

(c) (1) Any mandated reporter of suspected financial abuse of an elder or dependent adult who has direct contact with the elder or dependent adult or who reviews or approves the elder or dependent adult’s financial documents, records, or transactions, in connection with providing financial services with respect to an elder or dependent adult, and who, within the scope of his or her their employment or professional practice, has observed or has knowledge of an incident, that is directly related to the transaction or matter that is within that scope of employment or professional practice, that reasonably appears to be financial abuse, or who reasonably suspects that abuse, based solely on the information before him or her them at the time of reviewing or approving the document, record, or transaction in the case of mandated reporters who do not have direct contact with the elder or dependent adult, shall report the known or suspected instance of financial abuse by telephone or through a confidential Internet internet reporting tool, as authorized pursuant to Section 15658, immediately, or as soon as practicably possible. If reported by telephone, a written report shall be sent, or an Internet internet report shall be made through the confidential Internet internet reporting tool established in Section 15658, within two working days to the local adult protective services agency or the local law enforcement agency.
(2) When two or more mandated reporters jointly have knowledge or reasonably suspect that financial abuse of an elder or a dependent adult for which the report is mandated has occurred, and when there is an agreement among them, the telephone report or Internet internet report, as authorized by Section 15658, may be made by a member of the reporting team who is selected by mutual agreement. A single report may be made and signed by the selected member of the reporting team. Any member of the team who has knowledge that the member designated to report has failed to do so shall thereafter make that report.
(3) If the mandated reporter knows that the elder or dependent adult resides in a long-term care facility, as defined in Section 15610.47, the report shall be made to the local ombudsman ombudsperson or local law enforcement agency.

(e)

(d) An allegation by the elder or dependent adult, or any other person, that financial abuse has occurred is not sufficient to trigger the reporting requirement under this section if both of the following conditions are met:
(1) The mandated reporter of suspected financial abuse of an elder or dependent adult is aware of no other corroborating or independent evidence of the alleged financial abuse of an elder or dependent adult. The mandated reporter of suspected financial abuse of an elder or dependent adult is not required to investigate any accusations.
(2) In the exercise of his or her their professional judgment, the mandated reporter of suspected financial abuse of an elder or dependent adult reasonably believes that financial abuse of an elder or dependent adult did not occur.

(f)

(e) Failure to report financial abuse under this section shall be subject to a civil penalty not exceeding one thousand dollars ($1,000) or if the failure to report is willful, a civil penalty not exceeding five thousand dollars ($5,000), which shall be paid by the financial institution that is the employer of the mandated reporter reporter, the broker-dealer, or the investment adviser to the party bringing the action. Subdivision (h) of Section 15630 shall not apply to violations of this section.

(g)

(f) (1) The civil penalty provided for in subdivision (f) (e) shall be recovered only in a civil action brought against the broker-dealer, investment adviser, or financial institution by the Attorney General, district attorney, or county counsel. No An action shall not be brought under this section by any person other than the Attorney General, district attorney, or county counsel. Multiple actions for the civil penalty may not be brought for the same violation.
(2) Nothing in the The Financial Elder Abuse Reporting Act of 2005 shall be construed to does not limit, expand, or otherwise modify any civil liability or remedy that may exist under this or any other law.

(h)

(g) As used in this section, “suspected financial abuse of an elder or dependent adult” occurs when a person who is required to report under subdivision (a) observes or has knowledge of behavior or unusual circumstances or transactions, or a pattern of behavior or unusual circumstances or transactions, that would lead an individual with like training or experience, based on the same facts, to form a reasonable belief that an elder or dependent adult is the victim of financial abuse as defined in Section 15610.30.

(i)

(h) Reports of suspected financial abuse of an elder or dependent adult made by an employee or officer of a financial institution pursuant to this section are covered under subdivision (b) of Section 47 of the Civil Code.
(i) (1) A mandated reporter of suspected financial abuse of an elder or dependent adult who makes a report pursuant to this section may notify any third party who had previously been designated by the elder or dependent adult of the known or suspected financial abuse, unless the third party is suspected of the financial abuse.
(2) A mandated reporter of suspected financial abuse of an elder or dependent adult shall not be civilly or criminally liable for any notification made pursuant to this subdivision.
(j) (1) A mandated reporter of suspected financial abuse of an elder or dependent adult is authorized to not honor a power of attorney described in Division 4.5 (commencing with Section 4000) of the Probate Code as to an attorney-in-fact, if the mandated reporter of suspected financial abuse of an elder or dependent adult makes a report to an adult protective services agency or a local law enforcement agency of any state that the principal may be subject to financial abuse, as described in this chapter or as defined in similar laws of another state, by that attorney-in-fact or person acting for or with that attorney-in-fact.
(2) If a mandated reporter of suspected financial abuse of an elder or dependent adult does not honor a power of attorney as to an attorney-in-fact pursuant to paragraph (1), the power of attorney shall remain enforceable as to every other attorney-in-fact also designated in the power of attorney about whom a report has not been made.
(3) For purposes of this subdivision, the terms “principal” and “attorney-in-fact” shall have the same meanings as those terms are used in Division 4.5 (commencing with Section 4000) of the Probate Code.
(k) (1) A mandated reporter of suspected financial abuse of an elder or dependent adult may temporarily delay a requested disbursement from an account of an elder or dependent adult or an account to which an elder or dependent adult is a beneficiary if the mandated reporter meets all of following conditions:
(A) They have a reasonable belief, after initiating an internal review of the requested disbursement and the suspected financial abuse, that the requested disbursement may result in the financial abuse of an elder or dependent adult.
(B) Immediately, but no later than two business days after the requested disbursement, they provide written notification of the delay and the reason for the delay to all parties authorized to transact business on the account, unless a party is reasonably believed to have engaged in suspected financial abuse of the elder or dependent.
(C) Immediately, but no later than two business days after the requested disbursement, they notify the local county adult protective services agency and local law enforcement agency.
(D) They continue their internal review of the suspected financial abuse of the elder or dependent adult, as necessary, and report the results of the investigation to the local county adult protective services agency and local law enforcement agency within seven business days after the requested disbursement.
(2) Any delay of a disbursement authorized by this subdivision shall expire upon either of the following, whichever is sooner:
(A) A determination by the mandated reporter that the disbursement will not result in financial abuse of the elder or dependent adult.
(B) Fifteen business days after the date on which the mandated reporter first delayed disbursement of the funds, unless the adult protective services agency or local law enforcement agency requests that the mandated reporter extend the delay, in which case the delay shall expire no more than 25 business days after the date on which the mandated reporter first delayed disbursement of the funds, unless sooner terminated by the adult protective services agency or local law enforcement agency or an order of a court of competent jurisdiction.
(3) A court of competent jurisdiction may enter an order extending the delay of the disbursement of funds or may order other protective relief based on the petition of the adult protective services agency, the mandated reporter who initiated the delay, or any other interested party.
(4) A mandated reporter of suspected financial abuse of an elder or dependent adult shall not be civilly or criminally liable for any temporarily disbursement delay made on an account pursuant to this subdivision.

SEC. 2.

 Section 15633.5 of the Welfare and Institutions Code is amended to read:

15633.5.
 (a) Information relevant to the incident of elder or dependent adult abuse may shall be given to an investigator from an adult protective services agency, a local law enforcement agency, the office of the district attorney, the office of the public guardian, the probate court, the bureau, or an investigator of the Department of Consumer Affairs, Division of Investigation who is investigating a known or suspected case of elder or dependent adult abuse.
(b) The identity of any person who reports under this chapter shall be confidential and disclosed only among the following agencies or persons representing an agency:
(1) An adult protective services agency.
(2) A long-term care ombudsperson program.
(3) A licensing agency.
(4) A local law enforcement agency.
(5) The office of the district attorney.
(6) The office of the public guardian.
(7) The probate court.
(8) The bureau.
(9) The Department of Consumer Affairs, Division of Investigation.
(10) Counsel representing an adult protective services agency.
(c) The identity of a person who reports under pursuant to this chapter may also be disclosed under the following circumstances:
(1) To the district attorney in a criminal prosecution.
(2) When a person reporting waives confidentiality.
(3) By court order.
(d) Notwithstanding subdivisions (a), (b), and (c), any a person reporting pursuant to Section 15631 shall not be required to include his or her their name in the report.