BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 308
                                                                  Page  1

          Date of Hearing:   June 30, 2009

                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
                                 Mary Hayashi, Chair
                     SB 308 (Harman) - As Amended:  June 15, 2009

           SENATE VOTE  :   37-0
           
          SUBJECT  :   Professional fiduciaries:  donative transfers.

           SUMMARY  :   Revises the definition of a "professional fiduciary"  
          (PF) and clarifies that public employees are exempt from  
          licensure if they are acting within the scope of employment.    
          Specifically,  this bill  :   

          1)Redefines "PF" to mean a person acting as a conservator or  
            guardian of the person, the estate, or person and estate for  
            two or more individuals unrelated to the PF. 

          2)Redefines "PF" to mean 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 individuals at the same time.  Establishes the following  
            method to count individuals: 

             a)   Individuals who are related to the PF shall not be  
               counted; 

             b)   All individuals who are related to each other shall be  
               counted as one individual; and, 

             c)   All trustors who are related to each other shall be  
               counted as one individual, and neither the number of trusts  
               nor the number of beneficiaries of those trusts shall be  
               counted.

          3)Defines "related" to mean related by blood, adoption,  
            marriage, or registered domestic partnership. 

          4)Includes 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 PF exemption for public  
            agencies and public officers.

          5)Defines lineal kinship or consanguinity as the relationship  








                                                                  SB 308
                                                                  Page  2

            between two persons, one of whom is a direct descendant of the  
            other (e.g., parent and child) and by counting the generations  
            separating one from the other.  Each generation is referred to  
            as a degree.

          6)Defines collateral kinship or consanguinity as the  
            relationship between two people who spring from a common  
            ancestor, but neither person is the direct descendant of the  
            other (e.g., siblings are related in the second degree, an  
            aunt or niece is related to the person in the third degree,  
            and a first cousin is related in the fourth degree).

          7)Contains various conforming changes made by SB 1264 (Harman),  
            Chapter 174, Statutes of 2008.


           EXISTING LAW  : 

          1)Authorizes the Professional Fiduciaries Bureau (Bureau) to  
            regulate and license professional fiduciaries. 

          2)Defines "PF" 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 PF or to each other by blood, adoption, marriage, or  
            registered domestic partnership.  

          3)Defines "PF" to 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 PF by blood, marriage, or registered  
            domestic partnership.  

          4)Provides that certain classes of entities and individuals are  
            exempt from the designation of "PF."  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 PF for purposes of the Professional  
            Fiduciaries Act (PFA), as long as the employee is acting in  
            the course and scope of that employment.  

          5)Exempts from the designation of "PF" a public officer or  
            public agency, including the public guardian, public  
            conservator, or other agency of the state or a county,  








                                                                  SB 308
                                                                  Page  3

            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. 

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           Purpose of the bill  .  According to the author's office, "SB 308  
          is a very technical measure designed to codify the principle  
          that, for purposes of determining when a trustee 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 Title 16 of the California Code of Regulations, Section 4406  
          (e)(2), but the sponsor believes that for clarity the rule  
          should be contained in the statute.

          "Second, the sponsor believes that the Business and Professions  
          Code 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."

           Background  .  In 2006, the Legislature enacted a package of bills  
          to reform the conservatorship system in California.  The Omnibus  
          Conservatorship and Guardianship Reform Act of 2006 was a bill  
          package that included the following pieces of legislation:  SB  
          1116 (Scott), Chapter 490, Statutes of 2006; SB 1550 (Figueroa),  
          Chapter 491, Statutes of 2006; SB 1716 (Bowen), Chapter 492,  
          Statutes of 2006; and, AB 1363 (Jones), Chapter 493, Statutes of  
          2006.  The major features of the bill package included:   
          increased frequency of court review of conservatorships;  
          broadened scope of court investigators' reports; special  
          procedures for the sale of a conservatee's primary residence;  
          and, the regulation and licensing of private professional  
          fiduciaries including private professional conservators.  These  
          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 PFA for the purpose of licensing and  








                                                                  SB 308
                                                                  Page  4

          regulating individuals who act as conservators, guardians,  
          trustees, personal representatives, or agents under a durable  
          power of attorney for health care or finances, for two or more  
          persons unrelated to the PF 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 prohibits 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 PF 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, sponsored by the California Judges Association (CJA),  
          makes technical, clarifying amendments to the PFA with regards  
          to conservators, guardians, and trustees who may qualify as  
          professional fiduciaries under the PFA.

           Conservators, guardians, and trustees  .  Under existing law, a  
          "PF" 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  
          PF by blood, adoption, marriage, or registered domestic  
          partnership. 

          This bill clarifies that "conservator" means conservator of the  
          person or of the estate, or conservator of both the person and  
          estate, for the conservatee, and that "guardian" means guardian  
          of the estate, or guardian of both the person and estate, for  
          the ward.  These changes are consistent with former Probate Code  
          (PC) provisions and simply and appropriately exclude from  
          regulation under the PFA a guardian who is taking care of a  
          child who has no assets.

          Under existing law, a "PF" also means a person who acts as a  
          trustee or an agent under a durable power of attorney for health  
          care or finances for more than three people or three families,  
          or a combination of people and families that total more than  
          three, at the same time, who are not related to the PF by blood,  
          adoption, marriage, or registered domestic partnership.  This  
          language was adopted from the former statute (PC Section 2854)  
          which exempted 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  








                                                                  SB 308
                                                                  Page  5

          combination of both that totals not more than three.  

          This bill clarifies that the counting of three people or three  
          families shall be based on the number of unrelated trustors, 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, CJA, wants clarity in the statute, to ease the transition  
          to the new PF statutes, and to be able to implement the  
          provisions of the PFA more easily.  Thus, a husband and wife who  
          have executed separate trusts with mutual provisions will count  
          as one family, even though there are in reality, two trusts that  
          a trustee would serve under.

          These clarifying provisions are already embodied in the  
          regulations adopted by the Bureau. 

          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 PFA, provided the employee is acting in the  
          course and scope of that employment.  This bill extends these  
          restrictions on "moonlighting" employees to employees of public  
          agencies and public officers who are exempt from the PF  
          provisions as well.  

           As recommended by the California Law Revisions Commission  
          (CLRC), this bill also provides guidance, for the entire PC, on  
          how to determine kinship or consanguinity and how to calculate  
          degrees of kinship.  In 1982, the CLRC had recommended repealing  
          former PC Sections 251-253, which then contained the general  
          rules of construction with respect to kinship and consanguinity.  
           At that time, the CLRC states, they felt that the provisions  
          were not necessary for purposes of the law governing wills and  
          intestate succession.  Since then, many other pieces of  
          legislation have returned the concept of degree of kinship and  
          consanguinity to the PC, and it is now relevant once more to  
          provide guidance.  The definitions contained in this bill are  
          consistent with the repealed statutes.

           Arguments in support  .  According to CJA, "The bill clarifies  
          that for purposes of counting unrelated parties in determining  
          when it is necessary to obtain a license as a PF, only trustors  








                                                                  SB 308
                                                                  Page  6

          are counted, not beneficiaries or trusts.  This avoids  
          unnecessarily requiring a license for a person who establishes  
          multiple trusts for one family." 

           Prior Legislation  .  

          SB 1264 (Harman), Chapter 174, Statutes of 2008, establishes a  
          statutory scheme governing no contest clauses in wills and  
          trusts, and other donative instruments that become irrevocable  
          on or after January 1, 2001. 

          SB 1215 (Harman) of 2008 was a measure identical to SB 308 that  
          was not heard in Assembly Judiciary Committee. 
          

          SB 1047 (Committee on Business, Professions and Economic  
          Development), Chapter 354, Statutes of 2007, extended the  
          licensing deadline from July 1, 2008 to January 1, 2009. 

          AB 1363 (Jones), Chapter 493, Statutes of 2006, established  
          additional court oversight requirements of conservatorships.

          SB 1116 (Scott), Chapter 490, Statutes of 2006, established a  
          presumption regarding residence of conservatee and increased  
          sale requirements of a conservatee's residence.  

          SB 1550 (Figueroa), Chapter 491, Statutes of 2006, established  
          the Board within the DCA for the purpose of licensing and  
          regulating professional fiduciaries. 

          SB 1716 (Bowen), Chapter 492, Statutes of 2006, allowed ex parte  
          communication in cases involving fiduciaries and expands court  
          review of conservators.  

           REGISTERED SUPPORT / OPPOSITION :



           Support 
           
          California Judges Association (CJA) (sponsor) 
          Judicial Council 
           
            Opposition 
           








                                                                  SB 308
                                                                  Page  7

          None on file. 

           Analysis Prepared by  :    Joanna Gin / B. & P. / (916) 319-3301