SENIOR ASSEMBLY PROPOSAL NO. 24

INTRODUCED BY SENIOR ASSEMBLY MEMBER LUCERO

LEGISLATIVE COUNSEL'S DIGEST

AP 24: DURABLE POWER OF ATTORNEY.

UNDER EXISTING LAW, THERE ARE VARIOUS PROVISIONS FOR AUTHORIZING A PERSON TO ACT ON BEHALF OF ANOTHER PERSON THROUGH THE GRANT OF A POWER OF ATTORNEY, INCLUDING A GENERAL POWER OF ATTORNEY AND A DURABLE POWER OF ATTORNEY. GENERALLY, A POWER OF ATTORNEY IS TERMINATED UPON THE DEATH OR THE INCAPACITY OF THE PERSON WHO AUTHORIZES THE POWER OF ATTORNEY ON HIS OR HER BEHALF. A DURABLE POWER OF ATTORNEY IS AN EXCEPTION TO THIS GENERAL RULE IN THAT A DURABLE POWER OF ATTORNEY REMAINS VALID EVEN IF THE PERSON WHO AUTHORIZES THAT POWER BECOMES INCAPACITATED. THERE ARE PROVISIONS FOR FILING AN ACTION WITH A COURT TO REVOKE A POWER OF ATTORNEY IF IT IS DETERMINED THAT THE ATTORNEY-IN-FACT VIOLATED, OR IS UNFIT TO PERFORM, THE FIDUCIARY DUTIES GRANTED UNDER THE POWER OF ATTORNEY. THERE ARE ALSO CIVIL AND CRIMINAL SANCTIONS FOR ABUSES OF A DURABLE POWER OF ATTORNEY FOR FRAUD, EMBEZZLEMENT, AND ELDER ABUSE. HOWEVER, THERE ARE NO SPECIFIC PROVISIONS FOR SEEKING THE REVIEW, REVOCATION, OR TERMINATION OF A DURABLE POWER OF ATTORNEY UNDER CIRCUMSTANCES WHERE THERE IS A THREAT OR LIKELIHOOD THAT THE GRANT OF THE POWER OF ATTORNEY MAY RESULT IN FINANCIAL OR ELDER ABUSE.

THIS MEASURE WOULD MEMORIALIZE THE LEGISLATURE AND THE GOVERNOR TO ENACT LEGISLATION THAT WOULD PROVIDE AN EXPEDITED PROCESS FOR A FAMILY MEMBER OF A SENIOR CITIZEN TO SEEK REVOCATION OR TERMINATION OF A DURABLE POWER OF ATTORNEY UPON A SHOWING THAT THE GRANT OF THE POWER OF A DURABLE POWER OF ATTORNEY MAY RESULT IN FINANCIAL OR ELDER ABUSE.

VOTE: MAJORITY.

AP 24: RELATING TO ABUSE AND MISUSE OF DURABLE POWERS OR ATTORNEY

WHEREAS, SENIOR CITIZENS, OFTEN AGAINST THEIR WILL, SIGN DURABLE POWERS OF ATTORNEY GIVING THE NAMED ATTORNEY-IN-FACT, OFTEN A FAMILY MEMBER, FULL CONTROL OVER THE FINANCIAL AND PERSONAL AFFAIRS OF THAT SENIOR CITIZENS; AND

WHEREAS, IN MANY CASES A GRANT OF DURABLE POWER OF ATTORNEY IS MADE WITHOUT CONSULTATION WITH, OR NOTICE TO, OTHER FAMILY MEMBERS OF THE SENIOR CITIZEN; AND

WHEREAS, THERE ARE MANY REPORTED CASES OF PERSONS, INCLUDING A FAMILY MEMBER, SELLING THE PERSONAL RESIDENCES OF, AND DEPLETING THE BANK ACCOUNTS OF, THE SENIOR CITIZEN THAT GRANTED THAT PERSON A DURABLE POWER OF ATTORNEY; AND

WHEREAS, EXISTING LAW PROVIDES FOR CRIMINAL AND CIVIL PENALTIES AGAINST A PERSON THAT HAS BREACHED HIS OR HER FIDUCIARY DUTY OR HAS COMMITTED ELDER ABUSE UNDER A GRANT OF A DURABLE POWER OF ATTORNEY; AND

WHEREAS, EXISTING LAW DOES NOT PROVIDE FOR AN EXPEDITED PROCEDURE FOR A FAMILY MEMBER, WHO HAS REASON TO BELIEVE THAT THERE IS A THREAT OR LIKELIHOOD THAT A PERSON GRANTED A DURABLE POWER OF ATTORNEY BY A RELATIVE THAT IS A SENIOR CITIZEN, TO SEEK REVIEW, REVOCATION, OR TERMINATION OF THAT GRANT OF A DURABLE POWER OF ATTORNEY; NOW, THEREFORE, BE IT

RESOLVED, BY THE SENIOR ASSEMBLY AND THE SENIOR SENATE, JOINTLY, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA AT ITS 2010 REGULAR SESSION, A MAJORITY OF THE MEMBERS VOTING THEREFOR, HEREBY PROPOSES THAT LEGISLATION BE ENACTED TO PROVIDE FOR AN EXPEDITED PROCEDURE FOR A FAMILY MEMBER, WHO HAS REASON TO BELIEVE THAT THERE IS A THREAT OR LIKELIHOOD THAT A PERSON GRANTED A DURABLE POWER OF ATTORNEY BY A RELATIVE THAT IS A SENIOR CITIZEN, TO SEEK REVIEW, REVOCATION, OR TERMINATION OF THAT GRANT OF A DURABLE POWER OF ATTORNEY; AND BE IT FURTHER

RESOLVED, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA RESPECTFULLY MEMORIALIZES THE LEGISLATURE AND THE GOVERNOR TO ENACT APPROPRIATE LEGISLATION THAT WOULD ADDRESS THE CONCERNS SET FORTH IN THIS MEASURE; AND BE IT FURTHER

RESOLVED, THAT A COPY OF THIS MEASURE BE TRANSMITTED TO THE SPEAKER OF THE ASSEMBLY, THE PRESIDENT PRO TEMPORE OF THE SENATE, AND THE GOVERNOR OF THE STATE OF CALIFORNIA.

RN 10 13835

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