BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session SB 308 S Senator Harman B As Introduced Hearing Date: March 31, 2009 3 Business and Professions Code 0 GMO:jd 8 SUBJECT Professional Fiduciaries: Qualifications DESCRIPTION The Professional Fiduciaries Act, enacted as part of the Omnibus Conservatorship and Guardianship Reform Act of 2006, defines and regulates professional fiduciaries. A professional fiduciary may be a conservator, guardian, or trustee, as specified. This bill is a technical measure that refines the definition of "professional fiduciary" to include varying types of conservators and guardians and specifies how trusts and beneficiaries are counted for purposes of the definition. It would also exclude from the definition employees of public officers or agencies that are now specifically exempt from the requirements imposed on professional fiduciaries, when those employees are acting within the scope of their employment duties. BACKGROUND In 2006, the Legislature enacted a package of bills to reform the conservatorship system in the State of California. Major features of the reforms, embodied in the Omnibus Conservatorship and Guardianship Reform Act of 2006 (SB 1116 (Scott, Chapter 490), SB 1550 (Figueroa, Chapter 491), SB 1716 (Bowen, Chapter 492) and AB 1363 (Jones, Chapter 493)) are: (1) increased frequency of review of conservatorships; (2) broadened scope of court investigators' reports; (3) special procedure for the sale of a conservatee's primary residence; and (4) the regulation and licensing of private professional fiduciaries including private (more) SB 308 (Harman) Page 2 of ? professional conservators. The measures were compelled by a series of articles in the media revealing widespread abuse of vulnerable elders and dependent adults by conservators and deficiencies in the courts' oversight of conservatorships. SB 1550 established the Professional Fiduciaries Act (PFA) for the purpose of licensing and regulating individuals who act as conservators, guardians, trustees, personal representatives, or agents under a durable power of attorney for health care or for finances, for two or more persons unrelated to the professional fiduciary or to each other, as specified. Public agency fiduciaries (public guardians and public conservators) and those employed by banks and trust companies are exempt from this regulatory scheme. SB 1550 also prohibited a court from appointing a person as a private professional conservator, guardian, or trustee, or permitting a person to continue to serve as such, unless he or she is licensed as a professional fiduciary and has filed evidence of the license with the clerk of the court in each county where a petition for appointment has been filed. This bill would make some technical, clarifying amendments to the Professional Fiduciaries Act with regards to conservators, guardians, and trustees who may qualify as a professional fiduciary under the PFA. CHANGES TO EXISTING LAW 1. Existing law defines and regulates the activities of professional fiduciaries. (Business & Professions Code Sec. 6501 et seq. All references are to the Business & Professions Code unless otherwise indicated.) Existing law defines "professional fiduciary" as a person who acts as a conservator or guardian for two or more persons at the same time who are not related to the professional fiduciary or to each other by blood, adoption, marriage, or registered domestic partnership. (Sec. 6501(f).) This bill would clarify that a "conservator" may be a "conservator of the person , the estate, or person and estate" and that a "guardian" means a "guardian of the estate, or person and estate." 2. Existing law defines "professional fiduciary" to also SB 308 (Harman) Page 3 of ? include a person who acts as a trustee, agent under a durable power of attorney for health care, or agent under a durable power of attorney for finances, for more than three people or more than three families, or a combination thereof that totals more than three at the same time, that are not related to the professional fiduciary by blood, marriage, or registered domestic partnership. This bill would clarify that in making this determination: (1) all individuals who are related to each other shall count as one individual; (2) trustors related to each other shall count as one individual; and (3) neither the number of beneficiaries nor the number of trusts would be counted for purposes of this qualification of a professional fiduciary. This bill would also specify that individuals who are related to the fiduciary shall not be counted. 3. Existing law provides certain classes of entities and individuals exemptions from the designation of "professional fiduciary." An employee of a trust company or an FDIC-insured institution or its affiliate (both of which are exempt under existing law) is also exempt from designation as a professional fiduciary for purposes of the PFA, as long as the employee is acting in the course and scope of that employment. Existing law also exempts from the designation of "professional fiduciary" a public officer or public agency, including the public guardian, public conservator, or other agency of the state or a county, including a regional center for persons with developmental disabilities, when the officer or agency is acting in the course and scope of their official duties. This bill would include employees of a public agency and a public officer of a public agency, as specified, acting in the course and scope of their official duties, in the exemption for public agencies and public officers. COMMENT 1. Stated need for the bill The author states: SB 308 is a very technical measure designed to codify the principle that, for purposes of determining when a trustee SB 308 (Harman) Page 4 of ? must be licensed, only trustors should be counted, and not beneficiaries or trusts. In many cases trusts may have large numbers of beneficiaries, and large numbers of trusts and sub-trusts might have been established for tax reasons by a small number of trustors. The language codifying this point is already included in regulations adopted by the Professional Fiduciaries Bureau, Title 16 CCR Section 4406(e)(2), but for clarity the rule should be contained in the statute. ? The sponsor believes that Section 6501 is unclear that persons employed by entities exempt from licensure, but who are "moonlighting" as professional fiduciaries, must be licensed. The bill thus contains language clarifying this point. 2. Conservators, guardians, and trustees The current language in Sec. 6501 was adopted from the language in the former Probate Code sections pertaining to private professional conservators and private professional guardians. Probate Code Sec. 2341(a) defined "private professional conservator" as a person or entity appointed as conservator of the person or estate, or both, of two or more conservatees at the same time who are not related to the conservator by blood or marriage. Probate Code Sec. 2341(b) defined "private professional guardian" as a person or entity appointed as guardian of the estate of two or more wards at the same time who are not related to the guardian by blood or marriage. Both statutes were repealed as of January 1, 2009. The essence of these provisions are now reflected in Business and Professions Code Sec. 6501, which defines "professional fiduciaries" and regulates their licensure and activities. Under Section 6501(f), a "professional fiduciary" means a person who acts as a conservator or guardian for two or more persons at the same time who are not related to the professional fiduciary by blood, adoption, marriage, or registered domestic partnership. This bill would clarify that "conservator" means conservator of the person or of the estate, or conservator of both the person and estate, of the conservatee and that "guardian" means guardian of the estate, or guardian of the person and estate, of the ward. These changes are consistent with former Probate Code SB 308 (Harman) Page 5 of ? Sec. 2341, subdivisions (a) and (b). Under current Sec. 6501(f), a "professional fiduciary" also means a person who acts as a trustee or an agent under a durable power of attorney for health care or for finances for more than three people or three families, or a combination of people and families that totals more than three, at the same time, who are not related to the professional fiduciary by blood, adoption, marriage, or registered domestic partnership. This language was adopted from the former statute (Probate Code Sec. 2854) exempting from the requirement of registration in the Statewide Registry a trustee who serves as trustee for the benefit of not more than three people or three families or any combination of both that totals not more than three. Probate Code Sec. 2854 was repealed on January 1, 2009. This bill would clarify that the counting of three people or three families shall be based on the number of trustors who are related, not the number of beneficiaries of the trusts or the number of trusts involved. The reason for this is that trusts may have classes of beneficiaries or a number of beneficiaries greater than three. There may also be subtrusts created by a general trust, even by the same trustor or trustors. The sponsor of the bill, the California Judges Association, wants clarity in the statute, to ease the transition to the new professional fiduciary statutes, and to be able to implement the provisions of the Professional Fiduciaries Act more easily. Thus, a husband and wife who have executed separate trusts with mutual provisions will count as one family, even though the two are related by marriage and there are in reality two trusts that a trustee would serve under. These clarifying provisions are already embodied in the regulations adopted by the Professional Fiduciaries Bureau at the Department of Consumer Affairs, the agency with jurisdiction over professional fiduciaries. 3. Restrictions on "moonlighting" employee would apply to employees of public agencies and public officers Under current law, an employee of a trust company or FDIC-insured financial institution or its holding companies, subsidiaries, or affiliates is exempt from the licensing requirements of the Professional Fiduciaries Act, provided the employee is acting in the course and scope of that employment. This bill would extend these restrictions on "moonlighting" SB 308 (Harman) Page 6 of ? employees to employees of public agencies and public officers who are exempt from the professional fiduciary provisions as well. Support : Judicial Council of California Opposition : None Known HISTORY Source : California Judges Association Related Pending Legislation : None Known Prior Legislation : SB 1550 (Figueroa, Ch. 491, Stats. 2006) enacted the Professional Fiduciaries Act. AB 299 (Tran, Ch. 130, Stats. 2007), exempted from regulation as a professional fiduciary a person whose sole activity as a professional fiduciary is as an investment adviser. **************