Statutory text on this page is current through the 2025 Regular Session (Stats. 2025). Verify the operative text against the Legislature’s official version at leginfo.legislature.ca.gov before relying on it. Commentary or annotations are from Schwartz & Schwartz, and are not statutory language.
Statutes on This Page
- Undue influence
- Protective orders
- “Double damages” and other enhanced remedies
- Fiduciary duties
Looking for the definitions?The key EADACPA provisions defining and explaining elder abuse — including financial abuse — are reproduced on the Statutory Definitions of Elder Abuse page.
Undue Influence
California Welfare & Institutions Code § 15610.70. Undue influence
In practiceThis is the controlling definition, and the four factors in subdivision (a) function as a checklist for building or defending a case. Subdivision (a)(3) is the most useful of them: it itemizes the tactics that recur in these matters, including control of information, medication, contact with others or sleep, use of affection or intimidation, and haste or secrecy in effecting changes to personal or property rights. Note subdivision (b) — an inequitable result on its own proves nothing.
(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:
(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:
(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
(B) Use of affection, intimidation, or coercion.
(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.
Amendment historyAdded by Stats. 2013, Ch. 668, Sec. 3. (AB 140) Effective January 1, 2014. Never amended since. See AB 140 for the bill that created it.
California Civil Code § 1575. Undue influence
In practiceThe older, contract-law formulation, and still on the books. It was the definition cross-referenced by Welf. & Inst. Code § 15610.30(a)(3) between 2009 and 2013, before AB 140 substituted § 15610.70 — which matters when the conduct at issue predates 2014. Because Prob. Code § 86 preserves the common law rather than displacing it, this formulation also remains available alongside the statutory one.
Undue influence consists:
- In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;
- In taking an unfair advantage of another’s weakness of mind; or,
- In taking a grossly oppressive and unfair advantage of another’s necessities or distress.
California Probate Code § 86. Undue influence
In practiceCarries the § 15610.70 definition into wills, trusts and conservatorship matters. The second sentence is the one to read closely: the definition supplements the common law without superseding it, so both frameworks remain available and the statutory factors have not displaced the older judicial indicia.
“Undue influence” has the same meaning as defined in Section 15610.70 of the Welfare and Institutions Code. It is the intent of the Legislature that this section supplement the common law meaning of undue influence without superseding or interfering with the operation of that law.
Amendment historyAdded by Stats. 2013, Ch. 668, Sec. 1. (AB 140) Effective January 1, 2014. Never amended since.
California Probate Code § 21380. Presumption of fraud or undue influence for certain enumerated transfers, etc.
In practiceThree key points: The care custodian presumption in (a)(3) applies only where the transferor is a dependent adult, and only to instruments executed during the service period or within 90 days either side; the presumption is rebuttable by clear and convincing evidence under (b) — except as to the drafter and those associated with the drafter, where (c) makes it conclusive; and, under (d) a beneficiary who fails to rebut bears all costs of the proceeding, including fees.
(a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:
(1) The person who drafted the instrument.
(2) A person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed.
(3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.
(4) A care custodian who commenced a marriage, cohabitation, or domestic partnership with a transferor who is a dependent adult while providing services to that dependent adult, or within 90 days after those services were last provided to the dependent adult, if the donative transfer occurred, or the instrument was executed, less than six months after the marriage, cohabitation, or domestic partnership commenced.
(5) A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive.
(6) A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive.
(7) A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.
(b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.
(c) Notwithstanding subdivision (b), with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in paragraph (5), (6), or (7) of subdivision (a), the presumption created by this section is conclusive.
(d) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees.
Amendment history and cross-referencesAmended by Stats. 2019, Ch. 10, Sec. 1. (AB 328) Effective January 1, 2020 — the amendment that added paragraph (a)(4), closing the loophole by which a care custodian who married a dependent adult escaped the presumption. See AB 328. Note the exclusions in Prob. Code § 21382, which AB 328 also amended so that the relative-and-cohabitant exclusion expressly yields to paragraph (a)(4). See also § 21384 on the certificate of independent review and § 21386 on the effect of an invalid transfer. This part replaced former § 21350 et seq., repealed effective January 1, 2014.
Protective Orders
California Welfare & Institutions Code § 15657.03. Elder abuse restraining orders
In practiceSometimes emergency intervention is requried, and a protective order can be the first (best) step in a financial abuse matter. The threshold under subdivision (c) is relatively low — just reasonable proof of a past act or acts of abuse, demonstrated by a preponderance of evidence. Standing under (a)(2) extends beyond the elder to a conservator, trustee, attorney-in-fact, guardian ad litem or other legally authorized person, and under (a)(3) to a county adult protective services agency. The scope of available orders in (b)(5) is broad, and under (i)(1) an order may run five years (and may be renewed for five years or permanently without any showing of further abuse).
Abridged — administrative provisions omittedThe text below reproduces the substantive provisions of a long section. Subdivisions governing continuances, service mechanics, Department of Justice and CLETS transmission, filing and service fees, electronic filing, remote appearances, adult protective services procedure, support persons at the hearing, Judicial Council forms and self-help center requirements are omitted, and marked accordingly. Read the complete section at leginfo.legislature.ca.gov before filing.
(a) (1) An elder or dependent adult who has suffered abuse, as defined in Section 15610.07, may seek protective orders as provided in this section.
(2) (A) A petition may be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or dependent adult who acts within the authority of a power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek the relief.
(B) (i) Subject to clause (ii), if the petition alleges abuse of an elder or dependent adult in the form of isolation, the term “other person legally authorized to seek the relief” as used in subparagraph (A) includes an interested party as defined in paragraph (3) of subdivision (b).
(ii) Clause (i) shall apply only for the purpose of seeking an order enjoining isolation under subparagraph (E) of paragraph (5) of subdivision (b).
(3) (A) A petition under this section may be brought on behalf of an elder or dependent adult by a county adult protective services agency in either of the following circumstances:
(i) If the elder or dependent adult has suffered abuse as defined in subdivision (b) and has an impaired ability to appreciate and understand the circumstances that place the elder or dependent at risk of harm.
(ii) If the elder or dependent adult has provided written authorization to a county adult protective services agency to act on that person’s behalf.
(B) In the case of a petition filed pursuant to clause (i) of subparagraph (A) by a county adult protective services agency, a referral shall be made to the public guardian consistent with Section 2920 of the Probate Code prior to or concurrent with the filing of the petition, unless a petition for appointment of a conservator has already been filed with the probate court by the public guardian or another party.
[Subdivision (a)(3)(C), governing confidentiality restrictions on adult protective services agencies, is omitted.]
(b) For purposes of this section:
(1) “Abuse” has the meaning set forth in Section 15610.07.
(2) “Conservator” means the legally appointed conservator of the person or estate of the petitioner, or both.
(3) “Interested party” means an individual with a personal, preexisting relationship with the elder or dependent adult. A preexisting relationship may be shown by a description of past involvement with the elder or dependent adult, time spent together, and any other proof that the individual spent time with the elder or dependent adult.
(4) “Petitioner” means the elder or dependent adult to be protected by the protective orders and, if the court grants the petition, the protected person.
(5) “Protective order” means an order that includes any of the following restraining orders, whether issued ex parte, after notice and hearing, or in a judgment:
(A) An order enjoining a party from abusing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner, and, in the discretion of the court, on a showing of good cause, of other named family or household members or a conservator, if any, of the petitioner. On a showing of good cause, in an order issued pursuant to this subparagraph in connection with an animal owned, possessed, leased, kept, or held by the petitioner, or residing in the residence or household of the petitioner, the court may do either or both of the following:
(i) Grant the petitioner exclusive care, possession, or control of the animal.
(ii) Order the respondent to stay away from the animal and refrain from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.
(B) An order excluding a party from the petitioner’s residence or dwelling, except that this order shall not be issued if legal or equitable title to, or lease of, the residence or dwelling is in the sole name of the party to be excluded, or is in the name of the party to be excluded and any other party besides the petitioner.
(C) An order enjoining a party from specified behavior that the court determines is necessary to effectuate orders described in subparagraph (A) or (B).
(D) (i) After notice and a hearing only, a finding that specific debts were incurred as the result of financial abuse of the elder or dependent adult by the respondent. For purposes of this subparagraph, the acts that may support this order include, but are not limited to, the crimes proscribed by Section 530.5 of the Penal Code.
(ii) The finding pursuant to clause (i) shall not entitle the petitioner to any remedies other than those actually set forth in this section. The finding pursuant to clause (i) shall not affect the priority of any lien or other security interest.
(E) (i) After notice and a hearing only, an order enjoining a party from abusing an elder or dependent adult by isolating them. An order may be issued under this subparagraph to restrain the respondent for the purpose of preventing a recurrence of isolation if the court finds by a preponderance of the evidence, to the satisfaction of the court, that the following requirements are met:
(I) The respondent’s past act or acts of isolation of the elder or dependent adult repeatedly prevented contact with the interested party.
(II) The elder or dependent adult expressly desires contact with the interested party. A court shall use all means at its disposal to determine whether the elder or dependent adult desires contact with the person and has the capacity to consent to that contact.
(III) The respondent’s isolation of the elder or dependent adult from the interested party was not in response to an actual or threatened abuse of the elder or dependent adult by the interested party or the elder or dependent adult’s desire not to have contact with the interested party.
(ii) The order may specify the actions to be enjoined, including enjoining the respondent from preventing the interested party from in-person or remote online visits with the elder or dependent adult, including telephone and online contact.
(iii) An order enjoining isolation under this section is not required for an elder or dependent adult to visit with anyone with whom the elder or dependent adult desires visitation.
(iv) An order enjoining isolation shall not be issued under this section if the elder or dependent adult resides in a long-term care facility, as defined in Section 9701, or a residential facility, as defined in Section 1502 of the Health and Safety Code. In those cases, action may be taken under appropriate federal law.
(v) An order enjoining isolation shall not be issued under this section if the elder or dependent adult is a patient of a health facility as defined in subdivision (a), (b), or (f) of Section 1250 of the Health and Safety Code. In those cases, action may be taken under other appropriate state or federal law.
(6) “Respondent” means the person against whom the protective orders are sought and, if the petition is granted, the restrained or enjoined person.
(c) Except as provided in subdivision (b), an order may be issued under this section, with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or dependent adult.
(d) Upon filing a petition for protective orders under this section, the petitioner may obtain a temporary restraining order in accordance with Section 527 of the Code of Civil Procedure, except to the extent this section provides a rule that is inconsistent. The temporary restraining order may include any of the protective orders described in paragraph (5) of subdivision (b). However, the court may issue an ex parte order excluding a party from the petitioner’s residence or dwelling only on a showing of all of the following:
(1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.
(2) That the party to be excluded has assaulted or threatens to assault the petitioner, other named family or household member of the petitioner, or a conservator of the petitioner.
(3) That physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or a conservator of the petitioner.
(e) A request for the issuance of a temporary restraining order without notice under this section shall be granted or denied on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be granted or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court.
(f) Within 21 days, or, if good cause appears to the court, 25 days, from the date that a request for a temporary restraining order is granted or denied, a hearing shall be held on the petition. If no request for temporary orders is made, the hearing shall be held within 21 days, or, if good cause appears to the court, 25 days, from the date that the petition is filed.
(g) The respondent may file a response that explains or denies the alleged abuse.
(h) The court may issue, upon notice and a hearing, any of the orders set forth in paragraph (5) of subdivision (b). The court may issue, after notice and hearing, an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner.
(i) (1) In the discretion of the court, an order issued after notice and a hearing under this section may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. The request for renewal may be brought at any time within the three months before the expiration of the order.
(2) The failure to state the expiration date on the face of the form creates an order with a duration of three years from the date of issuance.
[Subdivision (i)(3), governing notice to the protected party where another party seeks to modify or terminate the order, and subdivision (j), governing support persons at the hearing, are omitted.]
(k) (1) Except as provided in paragraph (2), upon the filing of a petition for protective orders under this section, the respondent shall be personally served with a copy of the petition, notice of the hearing or order to show cause, temporary restraining order, if any, and any declarations in support of the petition. Service shall be made at least five days before the hearing. The court may, on motion of the petitioner or on its own motion, shorten the time for service on the respondent.
(2) Commencing January 1, 2027, if the court determines at the hearing that, after a diligent effort, the petitioner has been unable to accomplish personal service, and that there is reason to believe that the respondent is evading service or cannot be located, then the court may specify another method of service that is reasonably calculated to give actual notice to the respondent and may prescribe the manner in which proof of service shall be made.
(l) A notice of hearing under this section shall notify the respondent that if the respondent does not attend the hearing, the court may make orders against the respondent that could last up to five years.
[Subdivisions (m) and (n), governing continuances; (o), governing service of orders where the respondent appeared or failed to appear; (p), governing transmission of order information to the Department of Justice and entry into CLETS; (q), preserving the right to counsel or self-representation; (r), governing filing fees and, from January 1, 2027, free electronic filing; and (s), governing law enforcement service fees, are omitted.]
(t) The prevailing party in an action brought under this section may be awarded court costs and attorney’s fees, if any.
(u) (1) A person subject to a protective order under this section shall not own, possess, purchase, receive, or attempt to receive a firearm or ammunition while the protective order is in effect.
(2) The court shall order a person subject to a protective order issued under this section to relinquish any firearms that the person owns or possesses pursuant to Section 527.9 of the Code of Civil Procedure.
(3) Every person who owns, possesses, purchases, or receives, or attempts to purchase or receive a firearm or ammunition while subject to a protective order issued under this section is punishable pursuant to Section 29825 of the Penal Code.
(4) This subdivision does not apply in a case in which a protective order issued under this section was made solely on the basis of financial abuse or isolation unaccompanied by force, threat, harassment, intimidation, or any other form of abuse.
[Subdivision (v), governing procedure where the petition is brought by a county adult protective services agency, and (w), governing remote appearances from January 1, 2027, are omitted.]
(x) Willful disobedience of a temporary restraining order or restraining order after hearing granted under this section is punishable pursuant to Section 273.6 of the Penal Code.
(y) This section does not apply to any action or proceeding governed by Title 1.6C (commencing with Section 1788) of Part 4 of Division 3 of the Civil Code, Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, or Division 10 (commencing with Section 6200) of the Family Code. This section does not preclude a petitioner’s right to use other existing civil remedies.
[Subdivision (z), governing Judicial Council forms, is omitted.]
(aa) When issuing a protective order pursuant to this section for abuse involving acts described in paragraph (1) or (2) of subdivision (a) of Section 15610.07, after notice and a hearing, the court may, if appropriate, also issue an order requiring the restrained party to participate in mandatory clinical counseling or anger management courses provided by a counselor, psychologist, psychiatrist, therapist, clinical social worker, or other mental or behavioral health professional licensed in the state to provide those services.
[Subdivision (ab), governing electronic filing information and self-help center resources from January 1, 2027, is omitted.]
Amendment historyAmended by Stats. 2025, Ch. 267, Sec. 5. (AB 561) Effective January 1, 2026. Several provisions added by that amendment do not commence until January 1, 2027 — alternative service where the respondent is evading service under (k)(2), free electronic filing under (r)(2), remote appearances under (w), and the self-help center requirements under (ab). See also § 15657.04, which requires the court to prohibit a restrained party from taking any action to obtain the protected person’s address or location absent good cause.
Case lawOn the standard for issuance, Gdowski v. Gdowski (2009) 175 Cal.App.4th 128 holds an order may issue on evidence of past abuse alone, proved by a preponderance, with no showing that the conduct will be repeated. On renewal, Gordon B. v. Gomez (2018) 22 Cal.App.5th 92 holds the protected party need show only a reasonable apprehension of future abuse. On what an order may reach, White v. Wear (2022) 76 Cal.App.5th 24 upheld an order restraining the respondent from making or facilitating any further change to the elder’s estate plan — while striking the firearms component, consistent with the carve-out in subdivision (u)(4). On the outer limit, Newman v. Casey (2024) 99 Cal.App.5th 359 holds the section does not authorize an order voiding a completed deed. And Herren v. George S. (2025) 109 Cal.App.5th 410 holds no adjudication of the elder’s capacity is required before an order may issue. All are summarized on the Notable Case Law page.
“Double Damages” — and Other Enhanced Remedies
California Probate Code § 859. Wrongful taking, concealment or disposition of property; liability; remedies
In practiceThree separate paths to liability: a bad faith wrongful taking, a taking by undue influence in bad faith, or a taking through the commission of financial elder abuse. Taken together with Prob. Code § 856, which orders the property returned, the § 859 penalty imposed on top of that order makes the practical recovery triple the amount taken.
If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part. In addition, except as otherwise required by law, including Section 15657.5 of the Welfare and Institutions Code, the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs. The remedies provided in this section shall be in addition to any other remedies available in law to a person authorized to bring an action pursuant to this part.
Amendment history and case lawAmended by Stats. 2013, Ch. 99, Sec. 1. (AB 381) Effective January 1, 2014 — the amendment that added the attorney’s fees sentence and extended the section to property of an elder or a dependent adult. Never amended since. See AB 381 and, for the earlier amendment that first added the undue influence and financial abuse triggers, AB 354. On how the penalty combines with § 856, see Asaro v. Maniscalco (2024) 103 Cal.App.5th 717; on bad faith, Keading v. Keading (2021) 60 Cal.App.5th 1115 and Kerley v. Weber (2018) 27 Cal.App.5th 1187; on survival against a deceased wrongdoer’s estate, Hill v. Superior Court (Staggers) (2016) 244 Cal.App.4th 1281. All are summarized on the Notable Case Law page.
California Probate Code § 4231.5. Breach of duty; chargeability; excuse; additional remedy for bad faith
In practiceThe power of attorney analogue to § 859, and the measure of damages in an action against an attorney-in-fact. Subdivision (b) gives the court discretion to excuse an agent who acted reasonably and in good faith, which is where the well-meaning family member is dealt with. Note that since SB 1038 took effect on January 1, 2011 an uncompensated agent is held to the same prudent person standard as a paid one; the former exemption for unpaid agents was deleted. The duties themselves are at §§ 4231, 4232, 4233 and 4236 below.
(a) If the attorney-in-fact breaches a duty pursuant to this division, the attorney-in-fact is chargeable with any of the following, as appropriate under the circumstances:
(1) Any loss or depreciation in value of the principal’s property resulting from the breach of duty, with interest.
(2) Any profit made by the attorney-in-fact through the breach of duty, with interest.
(3) Any profit that would have accrued to the principal if the loss of profit is the result of the breach of duty.
(b) If the attorney-in-fact has acted reasonably and in good faith under the circumstances as known to the attorney-in-fact, the court, in its discretion, may excuse the attorney-in-fact in whole or in part from liability under subdivision (a) if it would be equitable to do so.
(c) If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property that belongs to a principal under a power of attorney, or has taken, concealed, or disposed of property that belongs to a principal under a power of attorney by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action to recover the property or for surcharge. In addition, except as otherwise required by law, including Section 15657.5 of the Welfare and Institutions Code, the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs to the prevailing party. The remedies provided in this section shall be in addition to any other remedies available in law to the principal or any successor in interest of the principal.
Amendment historyAdded by Stats. 2010, Ch. 48, Sec. 2. (SB 1038) Effective January 1, 2011; subdivision (c) amended by Stats. 2013, Ch. 99, Sec. 2. (AB 381) Effective January 1, 2014, which added the undue influence and financial abuse triggers and the attorney’s fees sentence. See SB 1038 and AB 381. The standard of care itself is at Prob. Code § 4231.
California Civil Code § 3345. Unfair or deceptive practices against senior citizens, disabled persons, or veterans; treble damages
In practiceThis operates on top of other statutes; where some other provision authorizes a discretionary fine, civil penalty or punitive remedy, this section lets the trier of fact treble it on an affirmative finding under any one of the three factors in subdivision (b). Since AB 1730 a veteran under 65 who is not a dependent adult (who otherwise would fall outside the Elder Abuse Act) may still come within this section.
(a) This section shall apply only in actions brought by, on behalf of, or for the benefit of those individuals specified in paragraphs (1) to (3), inclusive, to redress unfair or deceptive acts or practices or unfair methods of competition.
(1) Senior citizens, as defined in subdivision (f) of Section 1761.
(2) Disabled persons, as defined in subdivision (g) of Section 1761.
(3) Veterans, as defined in Section 18540.4 of the Government Code.
(b) Whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider the factors set forth in paragraphs (1) to (3), inclusive, in addition to other appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. Whenever the trier of fact makes an affirmative finding in regard to one or more of the factors set forth in paragraphs (1) to (3), inclusive, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:
(1) Whether the defendant knew or should have known that their conduct was directed to one or more senior citizens, disabled persons, or veterans.
(2) Whether the defendant’s conduct caused one or more senior citizens, disabled persons, or veterans to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen, disabled person, or veteran.
(3) Whether one or more senior citizens, disabled persons, or veterans are substantially more vulnerable than other members of the public to the defendant’s conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct.
Amendment history and case lawAmended by Stats. 2022, Ch. 78, Sec. 1. (AB 1730) Effective January 1, 2023 — the amendment adding veterans as a third protected category and conforming all three factors. Never amended since. See AB 1730. Clark v. Superior Court (2010) 50 Cal.4th 605 held that § 3345 is not confined to Consumers Legal Remedies Act claims, but that because it trebles only remedies in the nature of a penalty, restitution under the Unfair Competition Law is not subject to trebling.
California Welfare & Institutions Code § 15657.5. Attorney’s fees and costs; defendant liable for financial abuse; limits on damages; punitive damages
In practiceThe fee award under subdivision (a) is mandatory on a preponderance showing of financial abuse. It is worth pleading a financial abuse count even where the recoverable damages are nominal or nonexistent, because liability alone triggers the award.
(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, and where it is proven by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse, in addition to reasonable attorney’s fees and costs set forth in subdivision (a), compensatory damages, and all other remedies otherwise provided by law, the limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any punitive damages may be imposed against an employer found liable for financial abuse as defined in Section 15610.30. This subdivision shall not apply to the recovery of compensatory damages or attorney’s fees and costs.
(d) Nothing in this section affects the award of punitive damages under Section 3294 of the Civil Code.
(e) Any money judgment in an action under this section shall include a statement that the damages are awarded based on a claim for financial abuse of an elder or dependent adult, as defined in Section 15610.30. If only part of the judgment is based on that claim, the judgment shall specify what amount was awarded on that basis.
Amendment history and case lawAmended (as amended by Stats. 2010, Ch. 64, Sec. 5) by Stats. 2011, Ch. 296, Sec. 336. (AB 1023) Effective January 1, 2012 — but AB 1023 was the Legislature’s annual “maintenance of the codes” measure, a technical bill that resolved a chaptering conflict rather than changing this section’s substance. Subdivisions (a) through (d) took their present form in Stats. 2008, Ch. 475 (SB 1140), which removed the requirement that the Civ. Code § 3294(b) employer standards be met before compensatory damages or fees could be awarded — see SB 1140. On the mandatory character of the fee award, see Arace v. Medico Investments (2020) 48 Cal.App.5th 977, which upheld a fee award where the jury found liability on the financial abuse count but awarded damages only on another.
California Welfare & Institutions Code § 15657. Defendant liable for physical abuse, neglect or abandonment; attorney’s fees and costs; limits on damages; punitive damages
In practiceThe heightened remedies provision for physical abuse, neglect and abandonment — the counterpart to § 15657.5 for financial abuse. Two thresholds must be met: liability for one of the three predicate forms of abuse, and recklessness, oppression, fraud or malice in its commission. Note the opening words as amended for 2026: the standard is clear and convincing evidence, or a preponderance where § 15657.02 applies.
If it is proven by clear and convincing evidence, or by a preponderance of the evidence pursuant to Section 15657.02, that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.
(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.
Amendment history and case lawAmended by Stats. 2025, Ch. 433, Sec. 1. (AB 251) Effective January 1, 2026 — the amendment inserting the preponderance alternative by reference to the new § 15657.02. On the distinction between neglect under this section and professional negligence, see Delaney v. Baker (1999) 20 Cal.4th 23 and Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771.
The § 377.34 window has now closedCode of Civil Procedure § 377.34(b), which allowed recovery of a decedent’s predeath pain, suffering or disfigurement in survival actions, applied only to actions granted trial preference before January 1, 2022, or filed on or after January 1, 2022 and before January 1, 2026. The window expired by its own terms: subdivision (b) was not repealed and remains in the code text, but it no longer reaches any newly filed action. Legislation to extend it (SB 29, Laird) was ordered inactive in September 2025, and no extension had been enacted as of August 2026. For actions filed on or after January 1, 2026 the § 377.34(a) bar applies again — which makes the exceptions in §§ 15657(b) and 15657.5(b) substantially more important than they were. Subdivision (f) is the other half of the point: nothing in § 377.34 affects claims brought under Chapter 11 (commencing with § 15600) of the Welfare and Institutions Code, so a qualifying Elder Abuse Act claim is untouched by the sunset — subject, where a health care provider is the defendant, to the Civ. Code § 3333.2 cap carried in by § 15657(b).
A restructured cross-referenceSubdivision (b) above caps recovery by reference to subdivision (b) of Civ. Code § 3333.2. AB 35 (Stats. 2022, Ch. 17) replaced the former flat $250,000 MICRA limit with escalating caps and restructured that section: § 3333.2(b) now governs actions not involving wrongful death, with separate collective caps for health care providers and health care institutions, while wrongful death moved to subdivision (c). The applicable dollar amount is the one in effect at the time of judgment, arbitration award or settlement.
California Welfare & Institutions Code § 15657.02. Standard of evidence; spoliation of evidence by long-term care facility
In practiceNew for 2026, and a significant lever in facility cases: where the defendant has committed spoliation, the court may drop the § 15657 standard from clear and convincing evidence to a preponderance. Note the limits. It reaches only the facility types listed in subdivision (b), with hospital-operated facilities expressly excluded; the spoliation must be intentional and must have materially prejudiced the plaintiff; the evidence destroyed must have been evidence the defendant was specifically required to maintain; and the court must issue written findings. It does not affect the standard under § 15657.03.
(a) (1) Notwithstanding any other law, the court may determine the standard of evidence in any claim for remedies sought under Section 15657 to be a preponderance of the evidence under either of the following circumstances:
(A) The plaintiff prevails on a discovery motion pursuant to subdivision (b) of Section 2023.030 of the Code of Civil Procedure due to spoliation of evidence by the defendant.
(B) A judge or arbitrator determines at any point during litigation or arbitration that spoliation of evidence has been committed by the defendant.
(2) The court shall issue its findings under this subdivision in writing.
(b) (1) This section applies only to claims brought against a residential care facility licensed pursuant to the California Residential Care Facilities for the Elderly Act (Chapter 3.2 (commencing with Section 1569) of Division 2 of the Health and Safety Code), an adult community care facility licensed pursuant to the California Community Care Facilities Act (Chapter 3 (commencing with Section 1500) of Division 2 of the Health and Safety Code), or a skilled nursing facility as defined in subdivision (c) of Section 1250 of the Health and Safety Code, except as otherwise provided in paragraph (2).
(2) This section does not apply to either of the following:
(A) A facility owned or operated by a general acute care hospital, as defined in subdivision (a) of, an acute psychiatric hospital, as defined in subdivision (b) of, or a special hospital, as defined in subdivision (f) of, Section 1250 of, and licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of, the Health and Safety Code.
(B) A facility that holds a valid license issued pursuant to subdivision (b) or (c) of Section 1254 of the Health and Safety Code.
(c) (1) For purposes of this section, “spoliation of evidence” means the intentional improper alteration of evidence or the intentional concealment or destruction of records, documents, or other evidence that is done by a party, with the intent of preventing the evidence from being produced, and that has materially prejudiced the other party.
(2) In determining whether spoliation of evidence has occurred, a judge shall consider whether records, documents, or other evidence is intentionally destroyed in any of the following manners:
(A) Prior to the expiration of a legally required time period for holding the records, documents, or other evidence.
(B) In contravention of the party’s written records retention policy.
(C) After receipt of a written directive to preserve relevant records, documents, or other evidence.
(d) For purposes of this section, the records, documents, or other evidence that is the subject of the spoliation shall be material to the claim brought under this article and specifically required to be maintained or preserved by the defendant.
(e) This section does not modify the standard of evidence for cases brought under Section 15657.03.
(f) The remedy provided in this section is cumulative with any other remedy available by law.
(g) The Legislature hereby finds and declares that facilities described in subdivision (b) have an existing duty to refrain from committing spoliation of evidence in actions brought pursuant to Section 15657 and, therefore, this section does not impose a new requirement on those facilities that is reimbursable pursuant to Article 3.8 (commencing with Section 14126), any other law or regulation governing Medi-Cal ratesetting, or the California Medicaid State Plan.
(h) If there is a final judicial determination in any action by any party, or a final determination by the Centers for Medicare and Medicaid Services, that the state is required by state or federal law or regulation to provide reimbursement under the Medi-Cal program to the health care facilities described in subdivision (b) for costs associated with this section, and the Legislature does not appropriate sufficient funds to pay for those costs, this section shall become inoperative.
Amendment historyAdded by Stats. 2025, Ch. 433, Sec. 2. (AB 251) Effective January 1, 2026. Note the contingent inoperability clause in subdivision (h).
California Welfare & Institutions Code § 15657.01. Writ of attachment; action for damages for financial abuse of elderly and dependent adults
In practiceThe power of this section is in its exemption from Code of Civil Procedure § 483.010, which limits attachment to claims on an express or implied contract in a fixed or readily ascertainable amount and, against a natural person, to claims arising out of a trade, business or profession. Normally, then, a financial elder abuse claim would not be eligible — but exempting elder financial abuse actions from § 483.010 makes attachment available. Everything else in the Attachment Law still applies, so probable validity under § 484.090 and an undertaking under § 489.210 remain necessary. And note the mandatory pleading requirement: the application must refer to this section.
Notwithstanding Section 483.010 of the Code of Civil Procedure, an attachment may be issued in any action for damages pursuant to Section 15657.5 for financial abuse of an elder or dependent adult, as defined in Section 15610.30. The other provisions of the Code of Civil Procedure not inconsistent with this article shall govern the issuance of an attachment pursuant to this section. In an application for a writ of attachment, the claimant shall refer to this section. An attachment may be issued pursuant to this section whether or not other forms of relief are demanded.
Amendment historyAdded by Stats. 2007, Ch. 45, Sec. 1. (SB 611) Effective January 1, 2008. Never amended since. See SB 611.
California Welfare & Institutions Code § 15657.6. Return of property taken from elder or dependent adult lacking capacity; remedies
In practiceA demand-and-return remedy that does not require proof of wrongful intent — it turns on the elder’s capacity at the time, measured by Prob. Code § 812 or Civ. Code § 39. A demand is the trigger, and it should be made in writing; failure to return then opens the § 15657.5 remedies, including mandatory fees. Note the closing sentence: it does not reach an agreement made while the elder had capacity.
A person or entity that takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining the real or personal property of an elder or dependent adult when the elder or dependent adult lacks capacity pursuant to Section 812 of the Probate Code, or is of unsound mind, but not entirely without understanding, pursuant to Section 39 of the Civil Code, shall, upon demand by the elder or dependent adult or a representative of the elder or dependent adult, as defined in subdivision (d) of Section 15610.30, return the property and if that person or entity fails to return the property, the elder or dependent adult shall be entitled to the remedies provided by Section 15657.5, including attorney’s fees and costs. This section shall not apply to any agreement entered into by an elder or dependent adult when the elder or dependent adult had capacity.
Amendment historyAdded by Stats. 2008, Ch. 475, Sec. 3. (SB 1140) Effective January 1, 2009. Never amended since. See SB 1140.
California Welfare & Institutions Code § 15657.7. Statute of limitations; financial abuse
In practiceFour years, running from discovery or from when reasonable diligence should have produced discovery — not from the conduct. Before 2009 the Act had no limitations provision of its own. Note that this section governs actions under §§ 15657.5 and 15657.6; claims pleaded under other statutes carry their own periods, and a trust contest remains subject to the 120-day period in Prob. Code § 16061.8.
An action for damages pursuant to Sections 15657.5 and 15657.6 for financial abuse of an elder or dependent adult, as defined in Section 15610.30, shall be commenced within four years after the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse.
Amendment historyAdded by Stats. 2008, Ch. 475, Sec. 4. (SB 1140) Effective January 1, 2009. Never amended since.
California Probate Code § 259. Predeceasing a decedent
In practiceAn abuser is deemed to have predeceased the decedent and is barred from receiving any property, damages or costs awarded to the decedent’s estate in the abuse action, whether their entitlement arises under a will, a trust or intestacy, and may not serve as fiduciary. The four elements in subdivision (a) are cumulative and demanding — note especially (a)(4), which requires that the decedent have been substantially unable to manage their finances or resist undue influence from the time of the abuse until death. Subdivision (b) supplies a shortcut: a conviction under Penal Code § 236 or § 368 triggers the same consequence without the subdivision (a) findings.
(a) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) where all of the following apply:
(1) It has been proven by clear and convincing evidence that the person is liable for physical abuse, neglect, or financial abuse of the decedent, who was an elder or dependent adult.
(2) The person is found to have acted in bad faith.
(3) The person has been found to have been reckless, oppressive, fraudulent, or malicious in the commission of any of these acts upon the decedent.
(4) The decedent, at the time those acts occurred and thereafter until the time of his or her death, has been found to have been substantially unable to manage his or her financial resources or to resist fraud or undue influence.
(b) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) if that person has been convicted of a violation of Section 236 of the Penal Code or any offense described in Section 368 of the Penal Code.
(c) Any person found liable under subdivision (a) or convicted under subdivision (b) shall not (1) receive any property, damages, or costs that are awarded to the decedent’s estate in an action described in subdivision (a) or (b), whether that person’s entitlement is under a will, a trust, or the laws of intestacy; or (2) serve as a fiduciary as defined in Section 39, if the instrument nominating or appointing that person was executed during the period when the decedent was substantially unable to manage his or her financial resources or resist fraud or undue influence. This section shall not apply to a decedent who, at any time following the act or acts described in paragraph (1) of subdivision (a), or the act or acts described in subdivision (b), was substantially able to manage his or her financial resources and to resist fraud or undue influence within the meaning of subdivision (b) of Section 1801 of the Probate Code and subdivision (b) of Section 39 of the Civil Code.
(d) For purposes of this section, the following definitions shall apply:
(1) “Physical abuse” as defined in Section 15610.63 of the Welfare and Institutions Code.
(2) “Neglect” as defined in Section 15610.57 of the Welfare and Institutions Code.
(3) “False imprisonment” as defined in Section 368 of the Penal Code.
(4) “Financial abuse” as defined in Section 15610.30 of the Welfare and Institutions Code.
(e) Nothing in this section shall be construed to prohibit the severance and transfer of an action or proceeding to a separate civil action pursuant to Section 801.
Amendment historyAmended by Stats. 2011, Ch. 308, Sec. 9. (SB 647) Effective January 1, 2012. Never amended since. SB 647 was the Senate Judiciary Committee’s omnibus civil law bill for that session.
California Penal Code § 368. Crimes against elder or dependent adults
In practiceA conviction under this section triggers forfeiture under Prob. Code § 259(b) without the four findings otherwise required, and can establish the elements of a Prob. Code § 850 taking by collateral estoppel — see Kerley v. Weber (2018) 27 Cal.App.5th 1187. Note the distinct treatment of caretakers in subdivision (e) and non-caretakers in subdivision (d), and the restraining order authority of up to ten years in subdivision (l).
(a) The Legislature finds and declares that elders, adults whose physical or mental disabilities or other limitations restrict their ability to carry out normal activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.
(b) (1) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which their person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.
(2) If, in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If, in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which their person or health may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(d) A person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable as follows:
(1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).
(2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).
(e) A caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows:
(1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).
(2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).
(f) A person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(g) As used in this section, “elder” means a person who is 65 years of age or older.
(h) As used in this section, “dependent adult” means a person, regardless of whether the person lives independently, who is between the ages of 18 and 64, who has physical or mental limitations which restrict their ability to carry out normal activities or to protect their rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. “Dependent adult” includes a person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(i) As used in this section, “caretaker” means a person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both this section and Section 187 or 12022.7 or any other provision of law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for a single offense, nor shall a person receive an additional term of imprisonment under both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for a single offense.
(k) In any case in which a person is convicted of violating these provisions, the court may require them to receive appropriate counseling as a condition of probation. A defendant ordered to be placed in a counseling program shall be responsible for paying the expense of participation in the counseling program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of the inability to pay.
(l) Upon conviction for a violation of subdivision (b), (c), (d), (e), or (f), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, the safety of the victim and their immediate family, and the information provided to the court pursuant to Section 273.75. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.
Amendment historyAmended by Stats. 2024, Ch. 538, Sec. 5. (AB 2907) Effective January 1, 2025.
Fiduciary Duties
California Probate Code § 16002. Duty of loyalty
In practiceThe duty of undivided loyalty, and the source of most breach claims. Subdivision (b) is worth knowing: a trustee administering two trusts may transact between them without breaching subdivision (a), but only on both conditions — the transaction must be fair and reasonable to the beneficiaries of both trusts, and the trustee must give the beneficiaries of both notice of all material facts the trustee knows or should know. Where the same fiduciary serves two trusts with adverse interests, see Städel Art Museum v. Mulvihill (2023) 96 Cal.App.5th 283, which holds that discretion must be exercised for the beneficiary of the trust in question and not in the interests of the other trust’s beneficiaries. For the agent’s counterpart duty, see § 4232 below.
(a) The trustee has a duty to administer the trust solely in the interest of the beneficiaries.
(b) It is not a violation of the duty provided in subdivision (a) for a trustee who administers two trusts to sell, exchange, or participate in the sale or exchange of trust property between the trusts, if both of the following requirements are met:
(1) The sale or exchange is fair and reasonable with respect to the beneficiaries of both trusts.
(2) The trustee gives to the beneficiaries of both trusts notice of all material facts related to the sale or exchange that the trustee knows or should know.
Amendment historyEnacted by Stats. 1990, Ch. 79. Never amended since.
California Probate Code § 16003. Multiple beneficiaries; impartiality
In practiceThis arises frequently when the trustee also is a beneficiary, or is aligned with one branch of a family against another. See Terry v. Conlan (2005) 131 Cal.App.4th 1445, where a trustee who abandoned neutrality could not have her attorney’s fees paid from the trust.
If a trust has two or more beneficiaries, the trustee has a duty to deal impartially with them and shall act impartially in investing and managing the trust property, taking into account any differing interests of the beneficiaries.
Amendment historyAmended by Stats. 1995, Ch. 63, Sec. 1. Effective January 1, 1996.
California Probate Code § 16004. Conflicts of interest
In practicePay close attention to subdivision (c). A transaction between trustee and beneficiary, occurring during the trust or while the trustee’s influence persists, by which the trustee obtains an advantage, is presumed a breach — a presumption affecting the burden of proof, so it shifts the burden to the trustee.
(a) The trustee has a duty not to use or deal with trust property for the trustee’s own profit or for any other purpose unconnected with the trust, nor to take part in any transaction in which the trustee has an interest adverse to the beneficiary.
(b) The trustee may not enforce any claim against the trust property that the trustee purchased after or in contemplation of appointment as trustee, but the court may allow the trustee to be reimbursed from trust property the amount that the trustee paid in good faith for the claim.
(c) A transaction between the trustee and a beneficiary which occurs during the existence of the trust or while the trustee’s influence with the beneficiary remains and by which the trustee obtains an advantage from the beneficiary is presumed to be a violation of the trustee’s fiduciary duties. This presumption is a presumption affecting the burden of proof. This subdivision does not apply to the provisions of an agreement between a trustee and a beneficiary relating to the hiring or compensation of the trustee.
Amendment historyEnacted by Stats. 1990, Ch. 79. Never amended since.
California Probate Code § 17211. Contest of trustee’s account; costs and attorney’s fees
In practiceThis is cost-shifting that runs in both directions, and it’s worth noting before an account is contested. Both elements must be present — the contest, or the opposition to it, must be both without reasonable cause and in bad faith. Note the asymmetry in where the money comes from: a beneficiary’s exposure is charged first against their interest in the trust, with personal liability for any shortfall, while a trustee’s is charged against their compensation or interest, with personal liability and recourse to the bond.
(a) If a beneficiary contests the trustee’s account and the court determines that the contest was without reasonable cause and in bad faith, the court may award against the contestant the compensation and costs of the trustee and other expenses and costs of litigation, including attorney’s fees, incurred to defend the account. The amount awarded shall be a charge against any interest of the beneficiary in the trust. The contestant shall be personally liable for any amount that remains unsatisfied.
(b) If a beneficiary contests the trustee’s account and the court determines that the trustee’s opposition to the contest was without reasonable cause and in bad faith, the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney’s fees, incurred to contest the account. The amount awarded shall be a charge against the compensation or other interest of the trustee in the trust. The trustee shall be personally liable and on the bond, if any, for any amount that remains unsatisfied.
Amendment history and case lawAdded by Stats. 1996, Ch. 563, Sec. 31. Never amended since. On the standards, Pizarro v. Reynoso (2017) 10 Cal.App.5th 172 construes subdivision (a) alongside the court’s general equitable power, building on Rudnick v. Rudnick (2009) 179 Cal.App.4th 1328; Leader v. Cords (2010) 182 Cal.App.4th 1588 treats subdivision (b) as a remedial provision protecting beneficiaries. Read this section with the burden of proof on an account, which falls on the fiduciary: a trustee must prove that the charges it has made are proper, and doubts arising from a failure to keep proper records are resolved against it. Purdy v. Johnson (1917) 174 Cal. 521, 527; see also McKay v. McKay (1920) 184 Cal. 742, 746 and Estate of Bissinger (1964) 60 Cal.2d 756, 771. Contrast the position on an inventory and appraisal. Court-supervised administrations file one — a conservator or guardian under Prob. Code § 2610, a personal representative under § 8800 et seq. — and the statutes governing objections to the appraised values, §§ 2614 and 8906, place the burden on the objector rather than on the fiduciary. See In re Conservatorship of Hume (2006) 140 Cal.App.4th 1385, construing § 2614 and summarized on the Notable Case Law page. The distinction is therefore between contesting appraised values in a filed inventory and settling a fiduciary’s account, rather than between conservatorships and other fiduciaries: a trust has no inventory and appraisal at all, and a trustee’s obligation is to account. Note also that under § 8908(b) the probate referee who set a contested value must justify it.
California Probate Code § 4231. Standard of care of attorney-in-fact
In practiceThe agent’s standard of care, and the counterpart to a trustee’s. Subdivision (b) raises it where the agent has special skills or was chosen because of claimed expertise. Note what is no longer here: until SB 1038 took effect on January 1, 2011, a former subdivision exempted an uncompensated agent from liability absent bad faith, intentional wrongdoing or gross negligence. It was deleted, so an unpaid agent now is held to the same prudent person standard as a paid one.
(a) Except as provided in subdivision (b), in dealing with property of the principal, an attorney-in-fact shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries.
(b) An attorney-in-fact who has special skills or expertise or was designated as an attorney-in-fact on the basis of representations of special skills or expertise shall observe the standard of care that would be observed by others with similar skills or expertise.
Amendment history and related provisionsAmended by Stats. 2010, Ch. 48, Sec. 1. (SB 1038) Effective January 1, 2011 — the amendment that deleted the exemption for uncompensated agents. See SB 1038. The remedy for breach is at § 4231.5 above. Section 4237 adds that an attorney-in-fact with special skills has a duty to apply the full extent of those skills.
California Probate Code § 4232. Duty of loyalty; conflicts of interest
In practiceThe agent’s duty of loyalty, and the direct analogue of § 16002 for trustees. Subdivision (b) is the qualification that matters on the defense side: an agent does not breach subdivision (a) solely because they also benefit, hold conflicting interests, or act inconsistently as between themselves and the principal. Something more than the existence of a conflict is required.
(a) An attorney-in-fact has a duty to act solely in the interest of the principal and to avoid conflicts of interest.
(b) An attorney-in-fact is not in violation of the duty provided in subdivision (a) solely because the attorney-in-fact also benefits from acting for the principal, has conflicting interests in relation to the property, care, or affairs of the principal, or acts in an inconsistent manner regarding the respective interests of the principal and the attorney-in-fact.
California Probate Code § 4233. Duty to keep the principal’s property separate
In practiceCommingling is the most readily provable breach in a power of attorney case, because it appears on the face of the bank records without any need to reconstruct intent.
(a) The attorney-in-fact shall keep the principal’s property separate and distinct from other property in a manner adequate to identify the property clearly as belonging to the principal.
(b) An attorney-in-fact holding property for a principal complies with subdivision (a) if the property is held in the name of the principal or in the name of the attorney-in-fact as attorney-in-fact for the principal.
California Probate Code § 4236. Duty to keep records; accounting; right to examine
In practiceRecords of all transactions must be kept, without exception. A duty to account arises in five enumerated circumstances, including on request by a conservator while the principal lives and by the personal representative or successor after death — which is how a family ordinarily gets access. Note subdivision (d); this section is not subject to limitation in the power of attorney, so an instrument purporting to excuse the agent from record-keeping or accounting provides no exemption.
(a) The attorney-in-fact shall keep records of all transactions entered into by the attorney-in-fact on behalf of the principal.
(b) The attorney-in-fact does not have a duty to make an account of transactions entered into on behalf of the principal, except in the following circumstances:
(1) At any time requested by the principal.
(2) Where the power of attorney requires the attorney-in-fact to account and specifies to whom the account is to be made.
(3) On request by the conservator of the estate of the principal while the principal is living.
(4) On request by the principal’s personal representative or successor in interest after the death of the principal.
(5) Pursuant to court order.
(c) The following persons are entitled to examine and copy the records kept by the attorney-in-fact:
(1) The principal.
(2) The conservator of the estate of the principal while the principal is living.
(3) The principal’s personal representative or successor in interest after the death of the principal.
(4) Any other person, pursuant to court order.
(d) This section is not subject to limitation in the power of attorney.
Related provisionsSections 4230 through 4238 comprise Article 2 of the Power of Attorney Law, Division 4.5. Also within it: § 4230 (no duty to act until the agent acts, but a duty to complete a transaction once commenced, and an express written agreement to act enforceable as a fiduciary obligation without consideration), § 4234 (regular contact, communication and following the principal’s instructions), § 4235 (consultation where the principal becomes incapacitated), § 4237 (an agent with special skills must apply the full extent of them) and § 4238 (delivery of property on termination, and the duty to account surviving termination). On the burden of proof for a fiduciary’s account generally, see the note to § 17211 above.
Statutory text on this page is current through the 2025 Regular Session. It is reproduced as a convenience and is not legal advice. Commentary or annotations are from Schwartz & Schwartz, and are not statutory language. Verify the operative text against the Legislature’s official version at leginfo.legislature.ca.gov before relying on it.