BILL NUMBER: AB 1363 CHAPTERED
BILL TEXT
CHAPTER 493
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2006
APPROVED BY GOVERNOR SEPTEMBER 27, 2006
PASSED THE ASSEMBLY AUGUST 31, 2006
PASSED THE SENATE AUGUST 30, 2006
AMENDED IN SENATE AUGUST 24, 2006
AMENDED IN SENATE AUGUST 22, 2006
AMENDED IN SENATE AUGUST 7, 2006
AMENDED IN SENATE JUNE 26, 2006
AMENDED IN SENATE JUNE 7, 2006
AMENDED IN SENATE MAY 25, 2006
AMENDED IN SENATE MARCH 21, 2006
AMENDED IN ASSEMBLY JANUARY 24, 2006
AMENDED IN ASSEMBLY JANUARY 12, 2006
AMENDED IN ASSEMBLY JANUARY 9, 2006
AMENDED IN ASSEMBLY JANUARY 4, 2006
AMENDED IN ASSEMBLY AUGUST 29, 2005
INTRODUCED BY Assembly Member Jones
(Principal coauthors: Assembly Members Berg, Canciamilla, Frommer,
Karnette, Liu, Montanez, and Nunez)
(Principal coauthors: Senators Chesbro and Figueroa)
(Coauthors: Assembly Members Arambula, Chu, Cohn, Garcia,
Goldberg, Klehs, Koretz, Laird, Leno, Levine, Lieber, Lieu, Parra,
Pavley, Saldana, and Spitzer)
(Coauthors: Senators Kuehl, Ortiz, and Torlakson)
FEBRUARY 22, 2005
An act to amend Sections 1610, 1822, 1826, 1829, 1830, 1850, 1851,
2215, 2250, 2253, 2320, 2321, 2401, 2610, 2620, 2620.2, 2623, 2640,
2640.1, 2641, 2653, 2701, and 2920 of, to add Sections 1456, 1457,
1850.5, 2113, 2250.2, 2250.4, 2250.6, 2250.8, 2410, and 2923 to, and
to add and repeal Section 1458 of, the Probate Code, relating to
conservatorship and guardianship.
LEGISLATIVE COUNSEL'S DIGEST
AB 1363, Jones Omnibus Conservatorship and Guardianship Reform
Act of 2006.
(1) Existing law governs the establishment of conservatorships and
guardianships.
The bill would require the Judicial Council, among other things,
to adopt specified rules of court relating to conservatorships and
guardianships and to develop educational programs for nonlicensed
conservators and guardians. The bill would also require the Judicial
Council to establish qualifications and educational requirements for
any court-employed staff attorney, examiner, and investigator or
court-appointed attorney, to require educational classes for these
attorneys, and probate judges, to report to the Legislature regarding
a study measuring court effectiveness in conservatorship cases, and
to develop forms to provide notice regarding free assistance provided
by the court to conservators and how to file an objection to an
inventory and appraisal of the estate. The bill would require public
guardians to comply with specified continuing education requirements
by January 1, 2008. The bill would revise the notice requirements
regarding a petition for the appointment of a temporary guardian or
temporary conservator, except as specified. The bill would also
require the Judicial Council to adopt a rule of court to implement a
specified provision, effective January 1, 2008, requiring guardians
and conservators to provide a bond.
(2) Existing law requires conservators and guardians to present a
biennial accounting of the assets of the conservatee or ward and
requires a biennial review of each conservatorship.
The bill would require a review of conservatorships at a noticed
hearing, and impose new requirements governing the accounting. The
bill also would prohibit a court from reducing the amount of a bond
in conservatorship proceedings without good cause, impose new duties
on court investigators and prohibit the compensation of a guardian or
conservator from the estate for costs or fees incurred in
unsuccessfully opposing a petition, among other changes. The bill
would also specify the circumstances under which a guardian or
conservator that is a trust company is required to obtain the
authorization of a court prior to exercising its powers.
(3) Existing law authorizes the public guardian to apply for
appointment as guardian or conservator of the person, estate, or
both, of any person domiciled in the county requiring a guardian or
conservator if there is no one else who is qualified and willing to
act and whose appointment would be in the best interest of the
person. The public guardian is required to apply for appointment if
ordered by the court.
This bill additionally would require the public guardian to apply
for appointment as guardian or conservator if there is an imminent
threat to the person's health or safety or the person's estate. The
bill would require the court to order the public guardian to apply
for appointment on behalf of any person domiciled in the county who
appears to require a guardian or conservator, if it appears that
there is no one else who is qualified and willing to act, and if that
appointment as guardian or conservator appears to be in the best
interests of the person, as specified.
Because the bill would impose new duties and educational
requirements on the public guardian, a county officer, the bill would
impose a state-mandated local program.
(4) The bill would incorporate additional changes to Sections 1850
and 1851 of the Probate Code proposed by both this bill and SB 1716,
to take effect only if both bills are enacted and this bill is
enacted last.
(5) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
(6) The bill would become operative only if SB 1116, SB 1550, and
SB 1716 are enacted and become effective on or before January 1,
2007.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act, together with Senate Bill 1116 (Scott),
Senate Bill 1550 (Figueroa), and Senate Bill 1716 (Bowen), shall be
known and may be cited as the Omnibus Conservatorship and
Guardianship Reform Act of 2006.
SEC. 2. The Legislature finds and declares the following:
(a) The rate of increase in the number of Californians who are 65
years of age or older is surpassing that in other states. The number
of people who are 65 years of age will grow from 3.7 million people
in the year 2000, to 6.3 million in the year 2020. The fastest
growing segment of California's population, expected to increase by
148 percent between the years 1990 and 2020, is people who are 85
years of age or older. As many as 10 percent of the population over
65 years of age and almost 50 percent of the population over 85 years
of age will suffer from Alzheimer's disease.
(b) As the population of California continues to grow and age, an
increasing number of persons in the state are unable to provide
properly for their personal needs, to manage their financial
resources, or to resist fraud or undue influence.
(c) One result of these trends is the growing number of persons
acting as conservators on behalf of other persons or their estates.
It is estimated that about 500 professional conservators oversee $1.5
billion in assets. Over 5,000 conservatorship petitions are filed
each year in California.
(d) Probate courts oversee the work of conservators, but, in part
due to a lack of resources and conflicting priorities, courts often
do not provide sufficient oversight in conservatorship cases to
ensure that the best interests of conservatees are protected.
(e) Professional fiduciaries are not adequately regulated at
present. This lack of regulation can result in the neglect, or the
physical or financial abuse, of the clients professional fiduciaries
are supposed to serve.
(f) Public guardians do not have adequate resources to represent
the best interests of qualifying Californians and, therefore, many in
need of the assistance of a conservator go without.
(g) As a result, the conservatorship system in California is
fundamentally flawed and in need of reform.
SEC. 3. Section 1456 is added to the Probate Code, to read:
1456. (a) In addition to any other requirements that are part of
the judicial branch education program, on or before January 1, 2008,
the Judicial Council shall adopt a rule of court that shall do all of
the following:
(1) Specifies the qualifications of a court-employed staff
attorney, examiner, and investigator, and any attorney appointed
pursuant to Sections 1470 and 1471.
(2) Specifies the number of hours of education in classes related
to conservatorships or guardianships that a judge who is regularly
assigned to hear probate matters shall complete, upon assuming the
probate assignment, and then over a three-year period on an ongoing
basis.
(3) Specifies the number of hours of education in classes related
to conservatorships or guardianships that a court-employed staff
attorney, examiner, and investigator, and any attorney appointed
pursuant to Sections 1470 and 1471 shall complete each year.
(4) Specifies the particular subject matter that shall be included
in the education required each year.
(5) Specifies reporting requirements to ensure compliance with
this section.
(b) In formulating the rule required by this section, the Judicial
Council shall consult with interested parties, including, but not
limited to, the California Judges Association, the California
Association of Superior Court Investigators, the California Public
Defenders Association, the County Counsels' Association of
California, the State Bar of California, the National Guardianship
Association, and the Association of Professional Geriatric Care
Managers.
SEC. 4. Section 1457 is added to the Probate Code, to read:
1457. In order to assist relatives and friends who may seek
appointment as a nonprofessional conservator or guardian the Judicial
Council shall develop a short educational program of no more than
three hours that is user-friendly and shall make that program
available free of charge to each proposed conservator and guardian
and each court-appointed conservator and guardian who is not required
to be licensed as a professional conservator or guardian pursuant to
Chapter 6 (commencing with Section 6500) of Division 3 of the
Business and Professions Code. The program may be available by video
presentation or Internet access.
SEC. 5. Section 1458 is added to the Probate Code, to read:
1458. (a) On or before January 1, 2008, the Judicial Council
shall report to the Legislature the findings of a study measuring
court effectiveness in conservatorship cases. The report shall
include all of the following with respect to the courts chosen for
evaluation:
(1) A summary of caseload statistics, including both temporary and
permanent conservatorships, bonds, court investigations,
accountings, and use of professional conservators.
(2) An analysis of compliance with statutory timeframes.
(3) A description of any operational differences between courts
that affect the processing of conservatorship cases, including
timeframes.
(b) The Judicial Council shall select three courts for the
evaluation mandated by this section.
(c) The report shall include recommendations for statewide
performance measures to be collected, best practices that serve to
protect the rights of conservatees, and staffing needs to meet case
processing measures.
(d) This section shall remain in effect only until January 1,
2009, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date.
SEC. 6. Section 1610 of the Probate Code is amended to read:
1610. (a) The Legislature finds and declares that it is in the
best interests of children to be raised in a permanent, safe, stable,
and loving environment.
(b) Unwarranted petitions, applications, or motions other than
discovery motions after the guardianship has been established create
an environment that can be harmful to children and are inconsistent
with the goals of permanency, safety, and stability.
SEC. 7. Section 1822 of the Probate Code is amended to read:
1822. (a) At least 15 days before the hearing on the petition for
appointment of a conservator, notice of the time and place of the
hearing shall be given as provided in this section. The notice shall
be accompanied by a copy of the petition. The court may not shorten
the time for giving the notice of hearing under this section.
(b) Notice shall be mailed to the following persons:
(1) The spouse, if any, or registered domestic partner, if any, of
the proposed conservatee at the address stated in the petition.
(2) The relatives named in the petition at their addresses stated
in the petition.
(c) If notice is required by Section 1461 to be given to the
Director of Mental Health or the Director of Developmental Services,
notice shall be mailed as so required.
(d) If the petition states that the proposed conservatee is
receiving or is entitled to receive benefits from the Veterans
Administration, notice shall be mailed to the Office of the Veterans
Administration referred to in Section 1461.5.
(e) If the proposed conservatee is a person with developmental
disabilities, at least 30 days before the day of the hearing on the
petition, the petitioner shall mail a notice of the hearing and a
copy of the petition to the regional center identified in Section
1827.5.
(f) The Judicial Council shall, on or before January 1, 2008,
develop a form to effectuate the notice required in subdivision (a).
SEC. 8. Section 1826 of the Probate Code is amended to read:
1826. Regardless of whether the proposed conservatee attends the
hearing, the court investigator shall do all of the following:
(a) Interview the proposed conservatee personally. The court
investigator also shall do all of the following:
(1) Interview the petitioner and the proposed conservator, if
different from the petitioner.
(2) Interview the proposed conservatee's spouse or registered
domestic partner and relatives within the first degree.
(3) To the greatest extent possible, interview the proposed
conservatee's relatives within the second degree, as set forth in
subdivision (b) of Section 1821, neighbors, and, if known, close
friends, before the hearing.
(b) Inform the proposed conservatee of the contents of the
citation, of the nature, purpose, and effect of the proceeding, and
of the right of the proposed conservatee to oppose the proceeding, to
attend the hearing, to have the matter of the establishment of the
conservatorship tried by jury, to be represented by legal counsel if
the proposed conservatee so chooses, and to have legal counsel
appointed by the court if unable to retain legal counsel.
(c) Determine whether it appears that the proposed conservatee is
unable to attend the hearing and, if able to attend, whether the
proposed conservatee is willing to attend the hearing.
(d) Review the allegations of the petition as to why the
appointment of the conservator is required and, in making his or her
determination, do the following:
(1) Refer to the supplemental information form submitted by the
petitioner and consider the facts set forth in the form that address
each of the categories specified in paragraphs (1) to (5), inclusive,
of subdivision (a) of Section 1821.
(2) Consider, to the extent practicable, whether he or she
believes the proposed conservatee suffers from any of the mental
function deficits listed in subdivision (a) of Section 811 that
significantly impairs the proposed conservatee's ability to
understand and appreciate the consequences of his or her actions in
connection with any of the functions described in subdivision (a) or
(b) of Section 1801 and identify the observations that support that
belief.
(e) Determine whether the proposed conservatee wishes to contest
the establishment of the conservatorship.
(f) Determine whether the proposed conservatee objects to the
proposed conservator or prefers another person to act as conservator.
(g) Determine whether the proposed conservatee wishes to be
represented by legal counsel and, if so, whether the proposed
conservatee has retained legal counsel and, if not, the name of an
attorney the proposed conservatee wishes to retain.
(h) Determine whether the proposed conservatee is capable of
completing an affidavit of voter registration.
(i) If the proposed conservatee has not retained legal counsel,
determine whether the proposed conservatee desires the court to
appoint legal counsel.
(j) Determine whether the appointment of legal counsel would be
helpful to the resolution of the matter or is necessary to protect
the interests of the proposed conservatee in any case where the
proposed conservatee does not plan to retain legal counsel and has
not requested the appointment of legal counsel by the court.
(k) Report to the court in writing, at least five days before the
hearing, concerning all of the foregoing, including the proposed
conservatee's express communications concerning both of the
following:
(1) Representation by legal counsel.
(2) Whether the proposed conservatee is not willing to attend the
hearing, does not wish to contest the establishment of the
conservatorship, and does not object to the proposed conservator or
prefer that another person act as conservator.
(l) Mail, at least five days before the hearing, a copy of the
report referred to in subdivision (k) to all of the following:
(1) The attorney, if any, for the petitioner.
(2) The attorney, if any, for the proposed conservatee.
(3) The proposed conservatee.
(4) The spouse, registered domestic partner, and relatives within
the first degree of the proposed conservatee who are required to be
named in the petition for appointment of the conservator, unless the
court determines that the mailing will result in harm to the
conservatee.
(5) Any other persons as the court orders.
(m) The court investigator has discretion to release the report
required by this section to the public conservator, interested public
agencies, and the long-term care ombudsman.
(n) The report required by this section is confidential and shall
be made available only to parties, persons described in subdivision
(l), persons given notice of the petition who have requested this
report or who have appeared in the proceedings, their attorneys, and
the court. The court has discretion at any other time to release the
report, if it would serve the interests of the conservatee. The clerk
of the court shall provide for the limitation of the report
exclusively to persons entitled to its receipt.
(o) This section does not apply to a proposed conservatee who has
personally executed the petition for conservatorship, or one who has
nominated his or her own conservator, if he or she attends the
hearing.
(p) If the court investigator has performed an investigation
within the preceding six months and furnished a report thereon to the
court, the court may order, upon good cause shown, that another
investigation is not necessary or that a more limited investigation
may be performed.
(q) Any investigation by the court investigator related to a
temporary conservatorship also may be a part of the investigation for
the general petition for conservatorship, but the court investigator
shall make a second visit to the proposed conservatee and the report
required by this section shall include the effect of the temporary
conservatorship on the proposed conservatee.
SEC. 9. Section 1829 of the Probate Code is amended to read:
1829. Any of the following persons may appear at the hearing to
support or oppose the petition:
(a) The proposed conservatee.
(b) The spouse or registered domestic partner of the proposed
conservatee.
(c) A relative of the proposed conservatee.
(d) Any interested person or friend of the proposed conservatee.
SEC. 10. Section 1830 of the Probate Code is amended to read:
1830. (a) The order appointing the conservator shall contain,
among other things, the names, addresses, and telephone numbers of:
(1) The conservator.
(2) The conservatee's attorney, if any.
(3) The court investigator, if any.
(b) In the case of a limited conservator for a developmentally
disabled adult, any order the court may make shall include the
findings of the court specified in Section 1828.5. The order shall
specify the powers granted to and duties imposed upon the limited
conservator, which powers and duties may not exceed the powers and
duties applicable to a conservator under this code. The order shall
also specify the following:
(1) The properties of the limited conservatee to which the limited
conservator is entitled to possession and management, giving a
description of the properties that will be sufficient to identify
them.
(2) The debts, rentals, wages, or other claims due to the limited
conservatee which the limited conservator is entitled to collect, or
file suit with respect to, if necessary, and thereafter to possess
and manage.
(3) The contractual or other obligations which the limited
conservator may incur on behalf of the limited conservatee.
(4) The claims against the limited conservatee which the limited
conservator may pay, compromise, or defend, if necessary.
(5) Any other powers, limitations, or duties with respect to the
care of the limited conservatee or the management of the property
specified in this subdivision by the limited conservator which the
court shall specifically and expressly grant.
(c) An information notice of the rights of conservatees shall be
attached to the order. The conservator shall mail the order and the
attached information notice to the conservatee and the conservatee's
relatives, as set forth in subdivision (b) of Section 1821. By
January 1, 2008, the Judicial Council shall develop the notice
required by this subdivision.
SEC. 11. Section 1850 of the Probate Code is amended to read:
1850. (a) Except as provided in subdivision (b), each
conservatorship initiated pursuant to this part shall be reviewed by
the court as follows:
(1) At the expiration of six months after the initial appointment
of the conservator, the court investigator shall visit the
conservatee, conduct an investigation in accordance with the
provisions of subdivision (a) of Section 1851, and report to the
court regarding the appropriateness of the conservatorship and
whether the conservator is acting in the best interests of the
conservatee regarding the conservatee's placement, quality of care,
including physical and mental treatment, and finances. The court may,
in response to the investigator's report, take appropriate action
including, but not limited to:
(A) Ordering a review of the conservatorship pursuant to
subdivision (b).
(B) Ordering the conservator to submit an accounting pursuant to
subdivision (a) of Section 2620.
(2) One year after the appointment of the conservator and annually
thereafter. However, at the review that occurs one year after the
appointment of the conservator, and every subsequent review conducted
pursuant to this paragraph, the court may set the next review in two
years if the court determines that the conservator is acting in the
best interests of the conservatee. In these cases, the court shall
require the investigator to conduct an investigation pursuant to
subdivision (a) of Section 1851 one year before the next review and
file a status report in the conservatee's court file regarding
whether the conservatorship still appears to be warranted and whether
the conservator is acting in the best interests of the conservatee.
If the investigator determines pursuant to this investigation that
the conservatorship still appears to be warranted and that the
conservator is acting in the best interests of the conservatee
regarding the conservatee's placement, quality of care, including
physical and mental treatment, and finances, no hearing or court
action in response to the investigator's report is required.
(b) The court may, on its own motion or upon request by any
interested person, take appropriate action including, but not limited
to, ordering a review of the conservatorship, including at a noticed
hearing, and ordering the conservator to present an accounting of
the assets of the estate pursuant to Section 2620.
(c) Notice of a hearing pursuant to subdivision (b) shall be
provided to all persons listed in subdivision (b) of Section 1822.
(d) This chapter does not apply to either of the following:
(1) A conservatorship for an absentee as defined in Section 1403.
(2) A conservatorship of the estate for a nonresident of this
state where the conservatee is not present in this state.
SEC. 11.5. Section 1850 of the Probate Code is amended to read:
1850. (a) Except as provided in subdivision (b), each
conservatorship initiated pursuant to this part shall be reviewed by
the court as follows:
(1) At the expiration of six months after the initial appointment
of the conservator, the court investigator shall visit the
conservatee, conduct an investigation in accordance with the
provisions of subdivision (a) of Section 1851, and report to the
court regarding the appropriateness of the conservatorship and
whether the conservator is acting in the best interests of the
conservatee regarding the conservatee's placement, quality of care,
including physical and mental treatment, and finances. The court may,
in response to the investigator's report, take appropriate action
including, but not limited to:
(A) Ordering a review of the conservatorship pursuant to
subdivision (b).
(B) Ordering the conservator to submit an accounting pursuant to
subdivision (a) of Section 2620.
(2) One year after the appointment of the conservator and annually
thereafter. However, at the review that occurs one year after the
appointment of the conservator, and every subsequent review conducted
pursuant to this paragraph, the court may set the next review in two
years if the court determines that the conservator is acting in the
best interest interests of the conservatee. In these cases, the court
shall require the investigator to conduct an investigation pursuant
to subdivision (a) of Section 1851 one year before the next review
and file a status report in the conservatee's court file regarding
whether the conservatorship still appears to be warranted and whether
the conservator is acting in the best interests of the conservatee.
If the investigator determines pursuant to this investigation that
the conservatorship still appears to be warranted and that the
conservator is acting in the best interests of the conservatee
regarding the conservatee's placement, quality of care, including
physical and mental treatment, and finances, no hearing or court
action in response to the investigator's report is required.
(b) The court may, on its own motion or upon request by any
interested person, take appropriate action including, but not limited
to, ordering a review of the conservatorship, including at a noticed
hearing, and ordering the conservator to present an accounting of
the assets of the estate pursuant to Section 2620.
(c) Notice of a hearing pursuant to subdivision (b) shall be
provided to all persons listed in subdivision (b) of Section 1822.
(d) This chapter does not apply to either of the following:
(1) A conservatorship for an absentee as defined in Section 1403.
(2) A conservatorship of the estate for a nonresident of this
state where the conservatee is not present in this state.
(e) The amendments made to this section by the act adding this
subdivision shall become operative on July 1, 2007.
SEC. 11.7. Section 1850.5 is added to the Probate Code, to read:
1850.5. (a) Notwithstanding Section 1850, each limited
conservatorship for a developmentally disabled adult, as defined in
subdivision (d) of Section 1801, shall be reviewed by the court one
year after the appointment of the conservator and biennially
thereafter.
(b) The court may, on its own motion or upon request by any
interested person, take appropriate action, including, but not
limited to, ordering a review of the limited conservatorship,
including at a noticed hearing, at any time.
SEC. 12. Section 1851 of the Probate Code is amended to read:
1851. (a) When court review is required, the court investigator
shall, without prior notice to the conservator except as ordered by
the court for necessity or to prevent harm to the conservatee, visit
the conservatee. The court investigator shall inform the conservatee
personally that the conservatee is under a conservatorship and shall
give the name of the conservator to the conservatee. The court
investigator shall determine whether the conservatee wishes to
petition the court for termination of the conservatorship, whether
the conservatee is still in need of the conservatorship, whether the
present conservator is acting in the best interests of the
conservatee, and whether the conservatee is capable of completing an
affidavit of voter registration. In determining whether the
conservator is acting in the best interests of the conservatee, the
court investigator's evaluation shall include an examination of the
conservatee's placement, quality of care, including physical and
mental treatment, and the conservatee's finances. To the greatest
extent possible, the court investigator shall interview individuals
set forth in subdivision (a) of Section 1826, in order to determine
if the conservator is acting in the best interests of the
conservatee. If the court has made an order under Chapter 4
(commencing with Section 1870), the court investigator shall
determine whether the present condition of the conservatee is such
that the terms of the order should be modified or the order revoked.
Upon request of the court investigator, the conservator shall make
available to the court investigator during the investigation for
inspection and copying all books and records, including receipts and
any expenditures, of the conservatorship.
(b) The findings of the court investigator, including the facts
upon which the findings are based, shall be certified in writing to
the court not less than 15 days prior to the date of review. A copy
of the report shall be mailed to the conservator and to the attorneys
of record for the conservator and conservatee at the same time it is
certified to the court. A copy of the report also shall be mailed to
the conservatee's spouse or registered domestic partner, the
conservatee's relatives in the first degree, and, if there are no
such relatives, to the next closest relative, unless the court
determines that the mailing will result in harm to the conservatee.
(c) In the case of a limited conservatee, the court investigator
shall make a recommendation regarding the continuation or termination
of the limited conservatorship.
(d) The court investigator may personally visit the conservator
and other persons as may be necessary to determine whether the
present conservator is acting in the best interests of the
conservatee.
(e) The report required by this section shall be confidential and
shall be made available only to parties, persons described in
subdivision (b), persons given notice of the petition who have
requested the report or who have appeared in the proceeding, their
attorneys, and the court. The court shall have discretion at any
other time to release the report if it would serve the interests of
the conservatee. The clerk of the court shall make provision for
limiting disclosure of the report exclusively to persons entitled
thereto under this section.
SEC. 12.5. Section 1851 of the Probate Code is amended to read:
1851. (a) When court review is required pursuant to Section 1850,
the court investigator shall, without prior notice to the
conservator except as ordered by the court for necessity or to
prevent harm to the conservatee, visit the conservatee. The court
investigator shall inform the conservatee personally that the
conservatee is under a conservatorship and shall give the name of the
conservator to the conservatee. The court investigator shall
determine whether the conservatee wishes to petition the court for
termination of the conservatorship, whether the conservatee is still
in need of the conservatorship, whether the present conservator is
acting in the best interests of the conservatee, and whether
the conservatee is capable
of completing an affidavit of voter registration. In determining
whether the conservator is acting in the best interests of the
conservatee, the court investigator's evaluation shall include an
examination of the conservatee's placement, the quality of care,
including physical and mental treatment, and the conservatee's
finances. To the greatest extent possible, the court investigator
shall interview individuals set forth in subdivision (a) of Section
1826, in order to determine if the conservator is acting in the best
interests of the conservatee. If the court has made an order under
Chapter 4 (commencing with Section 1870), the court investigator
shall determine whether the present condition of the conservatee is
such that the terms of the order should be modified or the order
revoked. Upon request of the court investigator, the conservator
shall make available to the court investigator during the
investigation for inspection and copying all books and records,
including receipts and any expenditures, of the conservatorship.
(b) The findings of the court investigator, including the facts
upon which the findings are based, shall be certified in writing to
the court not less than 15 days prior to the date of review. A copy
of the report shall be mailed to the conservator and to the attorneys
of record for the conservator and conservatee at the same time it is
certified to the court. A copy of the report also shall be mailed to
the conservatee's spouse or registered domestic partner, the
conservatee's relatives in the first degree, and if there are no such
relatives, to the next closest relative, unless the court determines
that the mailing will result in harm to the conservatee.
(c) In the case of a limited conservatee, the court investigator
shall make a recommendation regarding the continuation or termination
of the limited conservatorship.
(d) The court investigator may personally visit the conservator
and other persons as may be necessary to determine whether the
present conservator is acting in the best interests of the
conservatee.
(e) The report required by this section shall be confidential and
shall be made available only to parties, persons described in
subdivision (b), persons given notice of the petition who have
requested the report or who have appeared in the proceeding, their
attorneys, and the court. The court shall have discretion at any
other time to release the report if it would serve the interests of
the conservatee. The clerk of the court shall make provision for
limiting disclosure of the report exclusively to persons entitled
thereto under this section.
(f) The amendments made to this section by the act adding this
subdivision shall become operative on July 1, 2007.
SEC. 13. Section 2113 is added to the Probate Code, to read:
2113. A conservator shall accommodate the desires of the
conservatee, except to the extent that doing so would violate the
conservator's fiduciary duties to the conservatee or impose an
unreasonable expense on the conservatorship estate.
SEC. 14. Section 2215 of the Probate Code is amended to read:
2215. (a) Any of the following persons may appear at the hearing
to support or oppose the petition and may file written objections to
the petition:
(1) Any person required to be listed in the petition.
(2) Any creditor of the ward or conservatee or of the estate.
(3) Any other interested person.
(b) (1) If the court determines that the transfer requested in the
petition will be for the best interests of the ward or conservatee,
it shall make an order transferring the proceeding to the other
county.
(2) In those cases in which the court has approved a change of
residence of the conservatee, it shall be presumed to be in the best
interests of the conservatee to transfer the proceedings if the ward
or conservatee has moved his or her residence to another county
within the state in which any person set forth in subdivision (b) of
Section 1821 also resides. The presumption that the transfer is in
the best interests of the ward or conservatee, may be rebutted by
clear and convincing evidence that the transfer will harm the ward or
conservatee.
SEC. 15. Section 2250 of the Probate Code is amended to read:
2250. (a) On or after the filing of a petition for appointment of
a guardian or conservator, any person entitled to petition for
appointment of the guardian or conservator may file a petition for
appointment of:
(1) A temporary guardian of the person or estate or both.
(2) A temporary conservator of the person or estate or both.
(b) The petition shall state facts which establish good cause for
appointment of the temporary guardian or temporary conservator. The
court, upon that petition or other showing as it may require, may
appoint a temporary guardian of the person or estate or both, or a
temporary conservator of the person or estate or both, to serve
pending the final determination of the court upon the petition for
the appointment of the guardian or conservator.
(c) Unless the court for good cause otherwise orders, at least
five days before the hearing on the petition, notice of the hearing
shall be given as follows:
(1) Notice of the hearing shall be personally delivered to the
proposed ward if he or she is 12 years of age or older, to the parent
or parents of the proposed ward, and to any person having a valid
visitation order with the proposed ward that was effective at the
time of the filing of the petition. Notice of the hearing shall not
be delivered to the proposed ward if he or she is under 12 years of
age. In a proceeding for temporary guardianship of the person,
evidence that a custodial parent has died or become incapacitated,
and that the petitioner is the nominee of the custodial parent, may
constitute good cause for the court to order that this notice not be
delivered.
(2) Notice of the hearing shall be personally delivered to the
proposed conservatee, and notice of the hearing shall be served on
the persons required to be named in the petition for appointment of
conservator.
(3) A copy of the petition for temporary appointment shall be
served with the notice of hearing.
(d) If a temporary guardianship is granted ex parte and the
hearing on the general guardianship petition is not to be held within
30 days of the granting of the temporary guardianship, the court
shall set a hearing within 30 days to reconsider the temporary
guardianship. Notice of the hearing for reconsideration of the
temporary guardianship shall be provided pursuant to Section 1511,
except that the court may for good cause shorten the time for the
notice of the hearing.
(e) Visitation orders with the proposed ward granted prior to the
filing of a petition for temporary guardianship shall remain in
effect, unless for good cause the court orders otherwise.
(f) If a temporary conservatorship is granted ex parte, and a
petition to terminate the temporary conservatorship is filed more
than 15 days before the first hearing on the general petition for
appointment of conservator, the court shall set a hearing within 15
days of the filing of the petition for termination of the temporary
conservatorship to reconsider the temporary conservatorship. Unless
the court otherwise orders, notice of the hearing on the petition to
terminate the temporary conservatorship shall be given at least 10
days prior to the hearing. If a petition to terminate the temporary
conservatorship is filed within 15 days before the first hearing on
the general petition for appointment of conservator, the court shall
set the hearing at the same time that the hearing on the general
petition is set.
(g) The appointment of a guardian or conservator and the
appointment of a temporary guardian or conservator may be requested
in a single petition or by separate petitions. If the appointment of
both a guardian or conservator and also a temporary guardian or
conservator is requested in a single petition, the court may not
appoint a guardian or conservator without the investigations and
reviews otherwise required.
(h) If the court suspends powers of the guardian or conservator
under Section 2334 or 2654 or under any other provision of this
division, the court may appoint a temporary guardian or conservator
to exercise those powers until the powers are restored to the
guardian or conservator or a new guardian or conservator is
appointed.
(i) If for any reason a vacancy occurs in the office of guardian
or conservator, the court, on a petition filed under subdivision (a)
or on its own motion, may appoint a temporary guardian or conservator
to exercise the powers of the guardian or conservator until a new
guardian or conservator is appointed.
(j) On or before January 1, 2008, the Judicial Council shall adopt
a rule of court that establishes uniform standards for good cause
exceptions to the notice required by subdivision (c), limiting those
exceptions to only cases when waiver of the notice is essential to
protect the proposed conservatee or ward, or the estate of the
proposed conservatee or ward, from substantial harm.
SEC. 15.5. Section 2250.2 is added to the Probate Code, to read:
2250.2. (a) On or after the filing of a petition for appointment
of a conservator, any person entitled to petition for appointment of
the conservator may file a petition for appointment of a temporary
conservator of the person or estate or both.
(b) The petition shall state facts which establish good cause for
appointment of the temporary conservator. The court, upon such
petition or other showing as it may require, may appoint a temporary
conservator of the person or estate or both, to serve pending the
final determination of the court upon the petition for the
appointment of the conservator.
(c) Unless the court for good cause otherwise orders, not less
than five days before the appointment of the temporary conservator,
notice of the proposed appointment shall be personally delivered to
the proposed conservatee.
(d) One petition may request the appointment of a conservator and
also the appointment of a temporary conservator or these appointments
may be requested in separate petitions.
(e) If the court suspends powers of the conservator under Section
2334 or 2654 or under any other provision of this division, the court
may appoint a temporary conservator to exercise those powers until
the powers are restored to the conservator or a new conservator is
appointed.
(f) If for any reason a vacancy occurs in the office of
conservator, the court, on a petition filed under subdivision (a) or
on its own motion, may appoint a temporary conservator to exercise
the powers of the conservator until a new conservator is appointed.
(g) This section shall only apply to proceedings under Chapter 3
(commencing with Section 5350) of Part 1 of Division 5 of the Welfare
and Institutions Code.
SEC. 16. Section 2250.4 is added to the Probate Code, to read:
2250.4. The proposed temporary conservatee shall attend the
hearing except in the following cases:
(a) If the proposed temporary conservatee is out of the state when
served and is not the petitioner.
(b) If the proposed temporary conservatee is unable to attend the
hearing by reason of medical inability.
(c) If the court investigator has visited the proposed conservatee
prior to the hearing and the court investigator has reported to the
court that the proposed temporary conservatee has expressly
communicated that all of the following apply:
(1) The proposed conservatee is not willing to attend the hearing.
(2) The proposed conservatee does not wish to contest the
establishment of the temporary conservatorship.
(3) The proposed conservatee does not object to the proposed
temporary conservator or prefer that another person act as temporary
conservator.
(d) If the court determines that the proposed conservatee is
unable or unwilling to attend the hearing, and holding the hearing in
the absence of the proposed conservatee is necessary to protect the
conservatee from substantial harm.
SEC. 17. Section 2250.6 is added to the Probate Code, to read:
2250.6. (a) Regardless of whether the proposed temporary
conservatee attends the hearing, the court investigator shall do all
of the following prior to the hearing, unless it is not feasible to
do so, in which case the court investigator shall comply with the
requirements set forth in subdivision (b):
(1) Interview the proposed conservatee personally. The court
investigator also shall do all of the following:
(A) Interview the petitioner and the proposed conservator, if
different from the petitioner.
(B) To the greatest extent possible, interview the proposed
conservatee's spouse or registered domestic partner, relatives within
the first degree, neighbors and, if known, close friends.
(C) To the extent possible, interview the proposed conservatee's
relatives within the second degree as set forth in subdivision (b) of
Section 1821 before the hearing.
(2) Inform the proposed conservatee of the contents of the
citation, of the nature, purpose, and effect of the proceeding, and
of the right of the proposed conservatee to oppose the proceeding, to
attend the hearing, to have the matter of the establishment of the
conservatorship tried by jury, to be represented by legal counsel if
the proposed conservatee so chooses, and to have legal counsel
appointed by the court if unable to retain legal counsel.
(3) Determine whether it appears that the proposed conservatee is
unable to attend the hearing and, if able to attend, whether the
proposed conservatee is willing to attend the hearing.
(4) Determine whether the proposed conservatee wishes to contest
the establishment of the conservatorship.
(5) Determine whether the proposed conservatee objects to the
proposed conservator or prefers another person to act as conservator.
(6) Report to the court, in writing, concerning all of the
foregoing.
(b) If not feasible before the hearing, the court investigator
shall do all of the following within two court days after the
hearing:
(1) Interview the conservatee personally. The court investigator
also shall do all of the following:
(A) Interview the petitioner and the proposed conservator, if
different from the petitioner.
(B) To the greatest extent possible, interview the proposed
conservatee's spouse or registered domestic partner, relatives within
the first degree, neighbors and, if known, close friends.
(C) To the extent possible, interview the proposed conservatee's
relatives within the second degree as set forth in subdivision (b) of
Section 1821 before the hearing.
(2) Inform the conservatee of the nature, purpose, and effect of
the temporary conservatorship, as well as the right of the
conservatee to oppose the proposed general conservatorship, to attend
the hearing, to have the matter of the establishment of the
conservatorship tried by jury, to be represented by legal counsel if
the proposed conservatee so chooses, and to have legal counsel
appointed by the court if unable to retain legal counsel.
(c) If the investigator does not visit the conservatee until after
the hearing at which a temporary conservator was appointed, and the
conservatee objects to the appointment of the temporary conservator,
or requests an attorney, the court investigator shall report this
information promptly, and in no event more than three court days
later, to the court. Upon receipt of that information, the court may
proceed with appointment of an attorney as provided in Chapter 4
(commencing with Section 1470) of Part 1.
(d) If it appears to the court investigator that the temporary
conservatorship is inappropriate, the court investigator shall
immediately, and in no event more than two court days later, provide
a written report to the court so the court can consider taking
appropriate action on its own motion.
SEC. 17.5. Section 2250.8 is added to the Probate Code, to read:
2250.8. Sections 2250, 2250.4, and 2250.6 shall not apply to
proceedings under Chapter 3 (commencing with Section 5350) of Part 1
of Division 5 of the Welfare and Institutions Code.
SEC. 18. Section 2253 of the Probate Code is amended to read:
2253. (a) If a temporary conservator of the person proposes to
fix the residence of the conservatee at a place other than that where
the conservatee resided prior to the commencement of the
proceedings, that power shall be requested of the court in writing,
unless the change of residence is required of the conservatee by a
prior court order. The request shall be filed with the petition for
temporary conservatorship or, if a temporary conservatorship has
already been established, separately. The request shall specify in
particular the place to which the temporary conservator proposes to
move the conservatee, and the precise reasons why it is believed that
the conservatee will suffer irreparable harm if the change of
residence is not permitted, and why no means less restrictive of the
conservatee's liberty will suffice to prevent that harm.
(b) Unless the court for good cause orders otherwise, the court
investigator shall do all of the following:
(1) Interview the conservatee personally.
(2) Inform the conservatee of the nature, purpose, and effect of
the request made under subdivision (a), and of the right of the
conservatee to oppose the request, attend the hearing, be represented
by legal counsel if the conservatee so chooses, and to have legal
counsel appointed by the court if unable to obtain legal counsel.
(3) Determine whether the conservatee is unable to attend the
hearing because of medical inability and, if able to attend, whether
the conservatee is willing to attend the hearing.
(4) Determine whether the conservatee wishes to oppose the
request.
(5) Determine whether the conservatee wishes to be represented by
legal counsel at the hearing and, if so, whether the conservatee has
retained legal counsel and, if not, the name of an attorney the
proposed conservatee wishes to retain or whether the conservatee
desires the court to appoint legal counsel.
(6) If the conservatee does not plan to retain legal counsel and
has not requested the appointment of legal counsel by the court,
determine whether the appointment of legal counsel would be helpful
to the resolution of the matter or is necessary to protect the
interests of the conservatee.
(7) Determine whether the proposed change of place of residence is
required to prevent irreparable harm to the conservatee and whether
no means less restrictive of the conservatee's liberty will suffice
to prevent that harm.
(8) Report to the court in writing, at least two days before the
hearing, concerning all of the foregoing, including the conservatee's
express communications concerning representation by legal counsel
and whether the conservatee is not willing to attend the hearing and
does not wish to oppose the request.
(c) Within seven days of the date of filing of a temporary
conservator's request to remove the conservatee from his or her
previous place of residence, the court shall hold a hearing on the
request.
(d) The conservatee shall be present at the hearing except in the
following cases:
(1) Where the conservatee is unable to attend the hearing by
reason of medical inability. Emotional or psychological instability
is not good cause for the absence of the conservatee from the hearing
unless, by reason of that instability, attendance at the hearing is
likely to cause serious and immediate physiological damage to the
conservatee.
(2) Where the court investigator has reported to the court that
the conservatee has expressly communicated that the conservatee is
not willing to attend the hearing and does not wish to oppose the
request, and the court makes an order that the conservatee need not
attend the hearing.
(e) If the conservatee is unable to attend the hearing because of
medical inability, that inability shall be established (1) by the
affidavit or certificate of a licensed medical practitioner or (2) if
the conservatee is an adherent of a religion whose tenets and
practices call for reliance on prayer alone for healing and is under
treatment by an accredited practitioner of that religion, by the
affidavit of the practitioner. The affidavit or certificate is
evidence only of the conservatee's inability to attend the hearing
and shall not be considered in determining the issue of need for the
establishment of a conservatorship.
(f) At the hearing, the conservatee has the right to be
represented by counsel and the right to confront and cross-examine
any witness presented by or on behalf of the temporary conservator
and to present evidence on his or her own behalf.
(g) The court may approve the request to remove the conservatee
from the previous place of residence only if the court finds (1) that
change of residence is required to prevent irreparable harm to the
conservatee and (2) that no means less restrictive of the conservatee'
s liberty will suffice to prevent that harm. If an order is made
authorizing the temporary conservator to remove the conservatee from
the previous place of residence, the order shall specify the specific
place wherein the temporary conservator is authorized to place the
conservatee. The temporary conservator may not be authorized to
remove the conservatee from this state unless it is additionally
shown that such removal is required to permit the performance of
specified nonpsychiatric medical treatment, consented to by the
conservatee, which is essential to the conservatee's physical
survival. A temporary conservator who willfully removes a temporary
conservatee from this state without authorization of the court is
guilty of a felony.
(h) Subject to subdivision (e) of Section 2252, the court shall
also order the temporary conservator to take all reasonable steps to
preserve the status quo concerning the conservatee's previous place
of residence.
SEC. 19. Section 2320 of the Probate Code is amended to read:
2320. (a) Except as otherwise provided by statute, every person
appointed as guardian or conservator shall, before letters are
issued, give a bond approved by the court.
(b) The bond shall be for the benefit of the ward or conservatee
and all persons interested in the guardianship or conservatorship
estate and shall be conditioned upon the faithful execution of the
duties of the office, according to law, by the guardian or
conservator.
(c) Except as otherwise provided by statute, unless the court
increases or decreases the amount upon a showing of good cause, the
amount of a bond given by an admitted surety insurer shall be the sum
of all of the following:
(1) The value of the personal property of the estate.
(2) The probable annual gross income of all of the property of the
estate.
(3) The sum of the probable annual gross payments from the
following:
(A) Part 3 (commencing with Section 11000) of, Part 4 (commencing
with Section 16000) of, or Part 5 (commencing with Section 17000) of,
Division 9 of the Welfare and Institutions Code.
(B) Subchapter II (commencing with Section 401) of, or Part A of
Subchapter XVI (commencing with Section 1382) of, Chapter 7 of Title
42 of the United States Code.
(C) Any other public entitlements of the ward or conservatee.
(4) On or after January 1, 2008, a reasonable amount for the cost
of recovery to collect on the bond, including attorney's fees and
costs. The Judicial Council shall, on or before January 1, 2008,
adopt a rule of court to implement this paragraph.
(d) If the bond is given by personal sureties, the amount of the
bond shall be twice the amount required for a bond given by an
admitted surety insurer.
(e) The Bond and Undertaking Law (Chapter 2 (commencing with
Section 995.010) of Title 14 of Part 2 of the Code of Civil
Procedure) applies to a bond given under this article, except to the
extent inconsistent with this article.
SEC. 20. Section 2321 of the Probate Code is amended to read:
2321. (a) Notwithstanding any other provision of law, the court
in a conservatorship proceeding may not waive the filing of a bond or
reduce the amount of bond required, without a good cause
determination by the court which shall include a determination by the
court that the conservatee will not suffer harm as a result of the
waiver or reduction of the bond. Good cause may not be established
merely by the conservator having filed a bond in another or prior
proceeding.
(b) In a conservatorship proceeding, where the conservatee, having
sufficient capacity to do so, has waived the filing of a bond, the
court in its discretion may permit the filing of a bond in an amount
less than would otherwise be required under Section 2320.
SEC. 21. Section 2401 of the Probate Code is amended to read:
2401. (a) The guardian or conservator, or limited conservator to
the extent specifically and expressly provided in the appointing
court's order, has the management and control of the estate and, in
managing and controlling the estate, shall use ordinary care and
diligence. What constitutes use of ordinary care and diligence is
determined by all the circumstances of the particular estate.
(b) The guardian or conservator:
(1) Shall exercise a power to the extent that ordinary care and
diligence requires that the power be exercised.
(2) Shall not exercise a power to the extent that ordinary care
and diligence requires that the power not be exercised.
(c) Notwithstanding any other law, a guardian or conservator who
is not a trust company, in exercising his or her powers, may not hire
or refer any business to an entity in which he or she has a
financial interest except upon authorization of the court. Prior to
authorization from the court, the guardian or conservator shall
disclose to the court in writing his or her financial interest in the
entity. For the purposes of this subdivision, "financial interest"
shall mean (1) an ownership interest in a sole proprietorship, a
partnership, or a closely held corporation, or (2) an ownership
interest of greater than 1 percent of the outstanding shares in a
publicly held corporation, or (3) being an officer or a director of a
corporation.
(d) Notwithstanding any other law, a guardian or conservator who
is a trust company, in exercising its powers may not, except upon
authorization of the court, invest in securities of the trust company
or an affiliate or subsidiary, or other securities from which the
trust company or affiliate or subsidiary receives a financial
benefit or in a mutual fund,
other than a mutual fund authorized in paragraph (5) of subdivision
(a) of Section 2574, registered under the Investment Company Act of
1940 (Subchapter 1 (commencing with Sec. 80a-1) of Chapter 2D of
Title 15 of the United States Code), to which the trust company or
its affiliate provides services, including, but not limited to,
services as an investment adviser, sponsor, distributor, custodian,
agent, registrar, administrator, servicer, or manager, and for which
the trust company or its affiliate receives compensation.
Prior to authorization from the court, the guardian or conservator
shall disclose to the court in writing the trust company's financial
interest.
SEC. 22. Section 2410 is added to the Probate Code, to read:
2410. On or before January 1, 2008, the Judicial Council, in
consultation with the California Judges Association, the California
Association of Superior Court Investigators, the California State
Association of Public Administrators, Public Guardians, and Public
Conservators, the State Bar of California, the National Guardianship
Association, and the Association of Professional Geriatric Care
Managers, shall adopt a rule of court that shall require uniform
standards of conduct for actions that conservators and guardians may
take under this chapter on behalf of conservatees and wards to ensure
that the estate of conservatees or wards are maintained and
conserved as appropriate and to prevent risk of loss or harm to the
conservatees or wards. This rule shall include at a minimum standards
for determining the fees that may be charged to conservatees or
wards and standards for asset management.
SEC. 23. Section 2610 of the Probate Code is amended to read:
2610. (a) Within 90 days after appointment, or within any further
time as the court for reasonable cause upon ex parte petition of the
guardian or conservator may allow, the guardian or conservator shall
file with the clerk of the court and mail to the conservatee and to
the attorneys of record for the ward or conservatee, along with
notice of how to file an objection, an inventory and appraisal of the
estate, made as of the date of the appointment of the guardian or
conservator. A copy of this inventory and appraisal, along with
notice of how to file an objection, also shall be mailed to the
conservatee's spouse or registered domestic partner, the conservatee'
s relatives in the first degree, and, if there are no such relatives,
to the next closest relative, unless the court determines that the
mailing will result in harm to the conservatee.
(b) The guardian or conservator shall take and subscribe to an
oath that the inventory contains a true statement of all of the
estate of the ward or conservatee of which the guardian or
conservator has possession or knowledge. The oath shall be endorsed
upon or annexed to the inventory.
(c) The property described in the inventory shall be appraised in
the manner provided for the inventory and appraisal of estates of
decedents. The guardian or conservator may appraise the assets that a
personal representative could appraise under Section 8901.
(d) If a conservatorship is initiated pursuant to the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), and no sale of the
estate will occur:
(1) The inventory and appraisal required by subdivision (a) shall
be filed within 90 days after appointment of the conservator.
(2) The property described in the inventory may be appraised by
the conservator and need not be appraised by a probate referee.
(e) By January 1, 2008, the Judicial Council shall develop a form
to effectuate the notice required in subdivision (a).
SEC. 24. Section 2620 of the Probate Code is amended to read:
2620. (a) At the expiration of one year from the time of
appointment and thereafter not less frequently than biennially,
unless otherwise ordered by the court to be more frequent, the
guardian or conservator shall present the accounting of the assets of
the estate of the ward or conservatee to the court for settlement
and allowance in the manner provided in Chapter 4 (commencing with
Section 1060) of Part 1 of Division 3. By January 1, 2008, the
Judicial Council, in consultation with the California Judges
Association, the California Association of Superior Court
Investigators, the California State Association of Public
Administrators, Public Guardians, and Public Conservators, the State
Bar of California, and the California Society of Certified Public
Accountants, shall develop a standard accounting form, a simplified
accounting form, and rules for when the simplified accounting form
may be used. After January 1, 2008, all accountings submitted
pursuant to this section shall be submitted on the Judicial Council
form.
(b) The final court accounting of the guardian or conservator
following the death of the ward or conservatee shall include a court
accounting for the period that ended on the date of death and a
separate accounting for the period subsequent to the date of death.
(c) Along with each court accounting, the guardian or conservator
shall file supporting documents, as provided in this section.
(1) For purposes of this subdivision, the term "account statement"
shall include any original account statement from any institution,
as defined in Section 2890, or any financial institution, as defined
in Section 2892, in which money or other assets of the estate are
held or deposited.
(2) The filing shall include all account statements showing the
balance as of the close of the accounting period of the court
accounting. If the court accounting is the first court accounting of
the guardianship or conservatorship, the guardian or conservator
shall provide to the court all account statements showing the account
balance immediately preceding the date the conservator or guardian
was appointed and all account statements showing the account through
the closing date of the first court accounting.
(3) If the guardian or conservator is a private professional or
licensed guardian or conservator, the guardian or conservator shall
also file all original account statements, as described above,
showing the balance as of all periods covered by the accounting.
However, courts may instead provide by local rule that the court
shall retain all documents lodged with it under this subdivision
until the court's determination of the guardian's or conservator's
account has become final, at which time the documents shall be
returned to the depositing guardian or conservator or delivered to
any successor appointed by the court.
(4) The filing shall include the original, closing escrow
statement received showing the charges and credits for any sale of
real property of the estate.
(5) If the ward or conservatee is in a residential care facility
or a long-term care facility, the filing shall include the original
bill statements for the facility.
(6) This subdivision shall not apply to the public guardian if the
money belonging to the estate is pooled with money belonging to
other estates pursuant to Section 2940 and Article 3 (commencing with
Section 7640) of Chapter 4 of Part 1 of Division 7. Nothing in this
section shall affect any other duty or responsibility of the public
guardian with regard to managing money belonging to the estate or
filing accountings with the court.
(7) If any document to be filed or lodged with the court under
this section contains the ward's or conservatee's social security
number or any other personal information regarding the ward or
conservatee that would not ordinarily be disclosed in a court
accounting, an inventory and appraisal, or other nonconfidential
pleadings filed in the action, the account statement or other
document shall be attached to a separate affidavit describing the
character of the document, captioned "CONFIDENTIAL FINANCIAL
STATEMENT" in capital letters. Except as otherwise ordered by the
court, the clerk of the court shall keep the document confidential
except to the court and subject to disclosure only upon an order of
the court. The guardian or conservator may redact the ward's or
conservatee's social security number from any document lodged with
the court under this section.
(d) Each accounting is subject to random or discretionary, full or
partial review by the court. The review may include consideration of
any information necessary to determine the accuracy of the
accounting. If the accounting has any material error, the court shall
make an express finding as to the severity of the error and what
further action is appropriate in response to the error, if any. Among
the actions available to the court is immediate suspension of the
guardian or conservator without further notice or proceedings and
appointment of a temporary guardian or conservator or removal of the
guardian or conservator pursuant to Section 2650 and appointment of a
temporary guardian or conservator.
(e) The guardian or conservator shall make available for
inspection and copying, upon reasonable notice, to any person
designated by the court to verify the accuracy of the accounting, all
books and records, including receipts for any expenditures, of the
guardianship or conservatorship.
SEC. 25. Section 2620.2 of the Probate Code is amended to read:
2620.2. (a) Whenever the conservator or guardian has failed to
file an accounting as required by Section 2620, the court shall
require that written notice be given to the conservator or guardian
and the attorney of record for the conservatorship or guardianship
directing the conservator or guardian to file an accounting and to
set the accounting for hearing before the court within 30 days of the
date of the notice or, if the conservator or guardian is a public
agency, within 45 days of the date of the notice. The court may, upon
cause shown, grant an additional 30 days to file the accounting.
(b) Failure to file the accounting within the time specified under
subdivision (a), or within 45 days of actual receipt of the notice,
whichever is later, shall constitute a contempt of the authority of
the court as described in Section 1209 of the Code of Civil
Procedure.
(c) If the conservator or guardian does not file an accounting
with all appropriate supporting documentation and set the accounting
for hearing as required by Section 2620, the court shall do one or
more of the following and shall report that action to the board
established pursuant to Section 6510 of the Business and Professions
Code:
(1) Remove the conservator or guardian as provided under Article 1
(commencing with Section 2650) of Chapter 9 of Part 4 of Division 4.
(2) Issue and serve a citation requiring a guardian or conservator
who does not file a required accounting to appear and show cause why
the guardian or conservator should not be punished for contempt. If
the guardian or conservator purposely evades personal service of the
citation, the guardian or conservator shall be immediately removed
from office.
(3) Suspend the powers of the conservator or guardian and appoint
a temporary conservator or guardian, who shall take possession of the
assets of the conservatorship or guardianship, investigate the
actions of the conservator or guardian, and petition for surcharge if
this is in the best interests of the ward or conservatee.
Compensation for the temporary conservator or guardian, and counsel
for the temporary conservator or guardian, shall be treated as a
surcharge against the conservator or guardian, and if unpaid shall be
considered a breach of condition of the bond.
(4) (A) Appoint legal counsel to represent the ward or conservatee
if the court has not suspended the powers of the conservator or
guardian and appoint a temporary conservator or guardian pursuant to
paragraph (3). Compensation for the counsel appointed for the ward or
conservatee shall be treated as a surcharge against the conservator
or guardian, and if unpaid shall be considered a breach of a
condition on the bond, unless for good cause shown the court finds
that counsel for the ward or conservatee shall be compensated
according to Section 1470. The court shall order the legal counsel to
do one or more of the following:
(i) Investigate the actions of the conservator or guardian, and
petition for surcharge if this is in the best interests of the ward
or conservatee.
(ii) Recommend to the court whether the conservator or guardian
should be removed.
(iii) Recommend to the court whether money or other property in
the estate should be deposited pursuant to Section 2453, 2453.5,
2454, or 2455, to be subject to withdrawal only upon authorization of
the court.
(B) After resolution of the matters for which legal counsel was
appointed in subparagraph (A), the court shall terminate the
appointment of legal counsel, unless the court determines that
continued representation of the ward or conservatee and the estate is
necessary and reasonable.
(5) If the conservator or guardian is exempt from the licensure
requirements of Chapter 6 (commencing with Section 6500) of Division
3 of the Business and Professions Code, upon ex parte application or
any notice as the court may require, extend the time to file the
accounting, not to exceed an additional 30 days after the expiration
of the deadline described in subdivision (a), where the court finds
there is good cause and that the estate is adequately bonded. After
expiration of any extensions, if the accounting has not been filed,
the court shall take action as described in paragraphs (1) to (3),
inclusive.
(d) Subdivision (c) does not preclude the court from additionally
taking any other appropriate action in response to a failure to file
a proper accounting in a timely manner.
SEC. 26. Section 2623 of the Probate Code is amended to read:
2623. (a) Except as provided in subdivision (b) of this section,
the guardian or conservator shall be allowed all of the following:
(1) The amount of the reasonable expenses incurred in the exercise
of the powers and the performance of the duties of the guardian or
conservator (including, but not limited to, the cost of any surety
bond furnished, reasonable attorney's fees, and such compensation for
services rendered by the guardian or conservator of the person as
the court determines is just and reasonable).
(2) Such compensation for services rendered by the guardian or
conservator as the court determines is just and reasonable.
(3) All reasonable disbursements made before appointment as
guardian or conservator.
(4) In the case of termination other than by the death of the ward
or conservatee, all reasonable disbursements made after the
termination of the guardianship or conservatorship but prior to the
discharge of the guardian or conservator by the court.
(5) In the case of termination by the death of the ward or
conservatee, all reasonable expenses incurred prior to the discharge
of the guardian or conservator by the court for the custody and
conservation of the estate and its delivery to the personal
representative of the estate of the deceased ward or conservatee or
in making other disposition of the estate as provided for by law.
(b) The guardian or conservator shall not be compensated from the
estate for any costs or fees that the guardian or conservator
incurred in unsuccessfully opposing a petition, or other request or
action, made by or on behalf of the ward or conservatee, unless the
court determines that the opposition was made in good faith, based on
the best interests of the ward or conservatee.
SEC. 27. Section 2640 of the Probate Code is amended to read:
2640. (a) At any time after the filing of the inventory and
appraisal, but not before the expiration of 90 days from the issuance
of letters or any other period of time as the court for good cause
orders, the guardian or conservator of the estate may petition the
court for an order fixing and allowing compensation to any one or
more of the following:
(1) The guardian or conservator of the estate for services
rendered to that time.
(2) The guardian or conservator of the person for services
rendered to that time.
(3) The attorney for services rendered to that time by the
attorney to the guardian or conservator of the person or estate or
both.
(b) Notice of the hearing shall be given for the period and in the
manner provided for in Chapter 3 (commencing with Section 1460) of
Part 1.
(c) Upon the hearing, the court shall make an order allowing (1)
any compensation requested in the petition the court determines is
just and reasonable to the guardian or conservator of the estate for
services rendered or to the guardian or conservator of the person for
services rendered, or to both, and (2) any compensation requested in
the petition the court determines is reasonable to the attorney for
services rendered to the guardian or conservator of the person or
estate or both. The compensation allowed to the guardian or
conservator of the person, the guardian or conservator of the estate,
and to the attorney may, in the discretion of the court, include
compensation for services rendered before the date of the order
appointing the guardian or conservator. The compensation allowed
shall thereupon be charged to the estate. Legal services for which
the attorney may be compensated include those services rendered by
any paralegal performing legal services under the direction and
supervision of an attorney. The petition or application for
compensation shall set forth the hours spent and services performed
by the paralegal.
(d) Notwithstanding the provisions of subdivision (c), the
guardian or conservator shall not be compensated from the estate for
any costs or fees that the guardian or conservator incurred in
unsuccessfully opposing a petition, or other request or action, made
by or on behalf of the ward or conservatee, unless the court
determines that the opposition was made in good faith, based on the
best interests of the ward or conservatee.
SEC. 28. Section 2640.1 of the Probate Code is amended to read:
2640.1. (a) If a person has petitioned for the appointment of a
particular conservator and another conservator was appointed while
the petition was pending, but not before the expiration of 90 days
from the issuance of letters, the person who petitioned for the
appointment of a conservator but was not appointed and that person's
attorney may petition the court for an order fixing and allowing
compensation and reimbursement of costs, provided that the court
determines that the petition was filed in the best interests of the
conservatee.
(b) Notice of the hearing shall be given for the period and in the
manner provided in Chapter 3 (commencing with Section 1460) of Part
1.
(c) Upon the hearing, the court shall make an order to allow both
of the following:
(1) Any compensation or costs requested in the petition the court
determines is just and reasonable to the person who petitioned for
the appointment of a conservator but was not appointed, for his or
her services rendered in connection with and to facilitate the
appointment of a conservator, and costs incurred in connection
therewith.
(2) Any compensation or costs requested in the petition the court
determines is just and reasonable to the attorney for that person,
for his or her services rendered in connection with and to facilitate
the appointment of a conservator, and costs incurred in connection
therewith.
Any compensation and costs allowed shall be charged to the estate
of the conservatee. If a conservator of the estate is not appointed,
but a conservator of the person is appointed, the compensation and
costs allowed shall be ordered by the court to be paid from property
belonging to the conservatee, whether held outright, in trust, or
otherwise.
(d) It is the intent of the Legislature for this section to have
retroactive effect.
SEC. 29. Section 2641 of the Probate Code is amended to read:
2641. (a) At any time permitted by Section 2640 and upon the
notice therein prescribed, the guardian or conservator of the person
may petition the court for an order fixing and allowing compensation
for services rendered to that time.
(b) Upon the hearing, the court shall make an order allowing any
compensation the court determines is just and reasonable to the
guardian or conservator of the person for services rendered. The
compensation allowed to the guardian or conservator of the person
may, in the discretion of the court, include compensation for
services rendered before the date of the order appointing the
guardian or conservator. The compensation allowed shall thereupon be
charged against the estate.
(c) The guardian or conservator shall not be compensated from the
estate for any costs or fees that the guardian or conservator
incurred in unsuccessfully opposing a petition, or other request or
action, made by or on behalf of the ward or conservatee, unless the
court determines that the opposition was made in good faith, based on
the best interests of the ward or conservatee.
SEC. 30. Section 2653 of the Probate Code is amended to read:
2653. (a) The guardian or conservator, the ward or conservatee,
the spouse of the ward or the spouse or registered domestic partner
of the conservatee, any relative or friend of the ward or
conservatee, and any interested person may appear at the hearing and
support or oppose the petition.
(b) If the court determines that cause for removal of the guardian
or conservator exists, the court may remove the guardian or
conservator, revoke the letters of guardianship or conservatorship,
and enter judgment accordingly and, in the case of a guardianship or
conservatorship of the estate, order the guardian or conservator to
file an accounting and to surrender the estate to the person legally
entitled thereto. If the guardian or conservator fails to file the
accounting as ordered, the court may compel the accounting pursuant
to Section 2620.2.
(c) If the court removes the guardian or conservator for cause, as
described in subdivisions (a) to (g), inclusive, of Section 2650 or
Section 2655, both of the following shall apply:
(1) The court shall award the petitioner the costs of the petition
and other expenses and costs of litigation, including attorney's
fees, incurred under this article, unless the court determines that
the guardian or conservator has acted in good faith, based on the
best interests of the ward or conservatee.
(2) The guardian or conservator may not deduct from, or charge to,
the estate his or her costs of litigation, and is personally liable
for those costs and expenses.
SEC. 31. Section 2701 of the Probate Code is amended to read:
2701. (a) A request for special notice may be modified or
withdrawn in the same manner as provided for the making of the
initial request.
(b) A new request for special notice may be served and filed at
any time as provided in the case of an initial request.
SEC. 32. Section 2920 of the Probate Code is amended to read:
2920. (a) If any person domiciled in the county requires a
guardian or conservator and there is no one else who is qualified and
willing to act and whose appointment as guardian or conservator
would be in the best interests of the person, then either of the
following shall apply:
(1) The public guardian shall apply for appointment as guardian or
conservator of the person, the estate, or the person and estate, if
there is an imminent threat to the person's health or safety or the
person's estate.
(2) The public guardian may apply for appointment as guardian or
conservator of the person, the estate, or the person and estate in
all other cases.
(b) The public guardian shall apply for appointment as guardian or
conservator of the person, the estate, or the person and estate, if
the court so orders. The court may make an order under this
subdivision on motion of an interested person or on the court's own
motion in a pending proceeding or in a proceeding commenced for that
purpose. The court shall order the public guardian to apply for
appointment as guardian or conservator of the person, the estate, or
the person and estate, on behalf of any person domiciled in the
county who appears to require a guardian or conservator, if it
appears that there is no one else who is qualified and willing to
act, and if that appointment as guardian or conservator appears to be
in the best interests of the person. However, if prior to the filing
of the petition for appointment it is discovered that there is
someone else who is qualified and willing to act as guardian or
conservator, the public guardian shall be relieved of the duty under
the order. The court shall not make an order under this subdivision
except after notice to the public guardian for the period and in the
manner provided for in Chapter 3 (commencing with Section 1460) of
Part 1, consideration of the alternatives, and a determination by the
court that the appointment is necessary. The notice and hearing
under this subdivision may be combined with the notice and hearing
required for appointment of a guardian or conservator.
(c) The public guardian shall begin an investigation within two
business days of receiving a referral for conservatorship or
guardianship.
SEC. 33. Section 2923 is added to the Probate Code, to read:
2923. On or before January 1, 2008, the public guardian shall
comply with the continuing education requirements that are
established by the California State Association of Public
Administrators, Public Guardians, and Public Conservators.
SEC. 34. Section 11.5 of this bill incorporates amendments to
Section 1850 of the Probate Code proposed by both this bill and SB
1716. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2007, (2) each bill
amends Section 1850 of the Probate Code, and (3) this bill is enacted
after SB 1716, in which case Section 11 of this bill shall not
become operative.
SEC. 35. Section 12.5 of this bill incorporates amendments to
Section 1851 of the Probate Code proposed by both this bill and SB
1716. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2007, (2) each bill
amends Section 1851 of the Probate Code, and (3) this bill is enacted
after SB 1716, in which case Section 12 of this bill shall not
become operative.
SEC. 36. Sections 8, 11, 11.7, 12, 15, 15.5, 16, 17, 18, and 24 of
this act shall become operative on July 1, 2007.
SEC. 37. If the
Commission on State Mandates determines that this act contains costs
mandated by the state, reimbursement to local agencies and school
districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.
SEC. 38. This act shall become operative only if Senate Bill 1116,
Senate Bill 1550, and Senate Bill 1716 of the 2005-06 Regular
Session are enacted and become effective on or before January 1,
2007.