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AB-797 Financial abuse of elder adults.(2019-2020)

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Date Published: 03/26/2019 09:00 PM
AB797:v98#DOCUMENT

Amended  IN  Assembly  March 26, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 797


Introduced by Assembly Member Grayson

February 20, 2019


An act to amend Section 15630.1 of add Section 15631.5 to the Welfare and Institutions Code, relating to mandated reporters. financial abuse.


LEGISLATIVE COUNSEL'S DIGEST


AB 797, as amended, Grayson. Mandated reporters: financial 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, of an elder or dependent adult, 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. Existing law, the Money Transmission Act, provides for the licensure and regulation regulation, by the Commissioner of Business Oversight, of certain persons engaged in the business of money transmission.

This bill would expand the category of mandated reporters of suspected financial abuse to include the officers and employees of a business licensed under the Money Transmission Act.

This bill would require a business that is licensed under the Money Transmission Act whose primary business function is transmitting money, that operates out of a physical storefront or location and that does not engage in other transactions, to provide notice to customers who are 65 years of age or older making the customer aware that fraud has been committed in recent years by means of money transmittals. The bill would govern the manner for providing the notice and would require the customer who receives the notice to provide confirmation that the customer has read and understood the notice before proceeding with the transaction. The bill would require the notice to be in a form prescribed by the commissioner and would require the commissioner to prescribe that form. The bill would require a civil penalty in the amount of $5,000 to be imposed for the willful failure to provide this notice.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 15631.5 is added to the Welfare and Institutions Code, to read:

15631.5.
 (a) A business licensed under the Money Transmission Act (Division 1.2 (commencing with Section 2000) of the Financial Code) whose primary business function is transmitting money, that operates out of a physical storefront or location, rather than an online portal, and that does not engage in other transactions, such as the sale of goods and services, shall provide notice regarding the potential for financial elder adult abuse in the manner described in subdivision (b).
(b) A business that is subject to this section shall provide notice to a customer in either electronic or paper form in the following manner:
(1) The business shall ask each customer, before the customer is permitted to initiate a transaction to transmit money, whether the customer is 65 years of age or older.
(2) If the customer responds in the affirmative to the question described in paragraph (1), a notice making the customer aware that fraud has been committed in recent years by means of money transmittals shall appear on screen or the business shall provide the notice to the customer in paper form, as applicable.
(3) At the bottom of the screen or paper form, as applicable, the customer shall be instructed to provide confirmation that the customer has read and understood the notice by clicking on a box onscreen or by signing the form, as applicable. After confirming that the customer has read and understood the notice, the customer may proceed with the transaction.
(c) The notice shall be in a form prescribed by the Commissioner of Business Oversight. The commissioner shall prescribe that form.
(d) A civil penalty in the amount of five thousand dollars ($5,000) shall be imposed for the willful failure to provide notice pursuant to this section. The civil penalty shall be recovered only in a civil action brought against the business by the Attorney General, district attorney, or county counsel. Multiple actions for the civil penalty may not be brought for the same violation.
(e) A business that is subject to this section is not a mandated reporter for purposes of this chapter.
(f) Subdivision (h) of Section 15630 does not apply to a violation of this section.

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 all officers and employees of financial institutions.

(b)As used in this section, the term “financial institution” means any of the following:

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

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

(3)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)).

(4)A business licensed under the Money Transmission Act (Division 1.2 (commencing with Section 2000) of the Financial Code).

(c)As used in this section, “financial abuse” has the same meaning as in Section 15610.30.

(d)(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 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 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 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 report shall be made through the confidential 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 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 ombudsperson or local law enforcement agency.

(e)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 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)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 to the party bringing the action. Subdivision (h) of Section 15630 shall not apply to violations of this section.

(g)(1)The civil penalty provided for in subdivision (f) shall be recovered only in a civil action brought against the financial institution by the Attorney General, district attorney, or county counsel. No action shall 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 Financial Elder Abuse Reporting Act of 2005 shall be construed to limit, expand, or otherwise modify any civil liability or remedy that may exist under this or any other law.

(h)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)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.

(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.