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  
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          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  
                                                                      



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            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  
                                                                      



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            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  
                                                                      



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          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"  
                                                                      



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          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. 


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