BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1288| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 1288 Author: Gordon (D) Amended: 7/1/11 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE : 4-0, 6/28/11 AYES: Evans, Blakeslee, Corbett, Leno NO VOTE RECORDED: Harman ASSEMBLY FLOOR : 78-0, 5/19/11 - See last page for vote SUBJECT : Public guardians and conservators: authority: property held in trust SOURCE : County of San Mateo County of Santa Clara DIGEST : This bill authorizes a public guardian or conservator, if he/she intends to apply for appointment as the guardian or conservator of a person, to restrain any person from transferring, encumbering, or disposing of any real or personal property of the person held in a trust, as specified. This bill also increases the time (from 15 to 30 days) in which the public guardian or conservator can restrain an individual's property. ANALYSIS : Existing law provides that if the public guardian or public conservator determines that the requirements for appointment of a guardian or conservator of the estate are satisfied and the public guardian or CONTINUED AB 1288 Page 2 public conservator intends to apply for appointment, the public guardian or public conservator may take possession or control of real or personal property of a person domiciled in the county that is subject to loss, injury, waste, or misappropriation, and may deny use of, access to, or prohibit residency in, the real or personal property, by anyone who does not have a written rental agreement or other legal right to the use of, or access to, the property. (Probate Code ÝPROB]Section 2900(a)) Existing law authorizes a public guardian or public conservator, in reliance upon a peace officer's declaration of pending elder or dependent adult financial abuse, to take immediate possession or control of the property of the elder person and issue a 2901 Certification. (PROB Section 2952(c)(1)) This bill provides that if the public guardian or public conservator determines that the requirements for appointment of a guardian or conservator of the estate are satisfied and the public guardian or public conservator intends to apply for appointment as the guardian or conservator of a person domiciled in the county, the public guardian or public conservator may restrain any person from transferring, encumbering, or in any way disposing of any real or personal property held in a trust, provided all of the following requirements are met: 1. The real or personal property held in the trust is subject to loss, injury, waste, or misappropriation; 2. The proposed ward or conservatee was the settlor of the trust; 3. The proposed ward or conservatee has a beneficial interest in the trust to currently receive income or principal from the trust; and 4. The proposed ward or conservatee holds a power to revoke the trust. This bill provides that, during the period of any restraint of property in the trust, the property subject to the restraint shall continue to be retained as property of the CONTINUED AB 1288 Page 3 trust pending termination of the restraint or further court order. This bill requires the public guardian or public conservator to provide notice of any action with respect to trust property to all of the persons required to be noticed pursuant to Section 17203, to the extent the public guardian or public conservator has access to the trust documents or is otherwise able to determine the persons entitled to receive notice. This bill authorizes any settlor, trustee, or beneficiary of the trust to petition the court for relief from any restraint action, as specified, taken by the public guardian or public conservator. This bill does not apply when a current trustee or conservator is a spouse of the proposed ward or conservatee and that spouse is also a settlor of the trust, except when the public guardian or public conservator determines that the spouse will not or cannot adequately protect the assets held in the trust. Existing law provides that a public guardian who is authorized to take possession or control of property under this chapter may issue a written certification of that fact. The written certification is effective for 15 days after the date of issuance. (PROB Section 2901(a)) This bill extends the effective date of the 2901 Certification from 15 days to 30 days. This bill provides that a public guardian or public conservator who is authorized to restrain any person from transferring, encumbering, or in any way disposing of any real or personal property held in a trust, as specified, may issue a written certification of that fact, which would be effective for 30 days after the date of issuance. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 7/1/11) CONTINUED AB 1288 Page 4 County of San Mateo (co-source) County of Santa Clara (co-source) Alzheimer's Association California State Association of Counties California State Association of Public Administrators, Public Guardians and Public Conservators Consumer Attorneys of California County of San Benito County Welfare Directors Association Del Oro Caregiver Resource Center Regional Council of Rural Counties Santa Clara County Department of Aging and Adult Services Santa Clara County Social Services Agency Urban Counties Caucus Ventura County Board of Supervisors OPPOSITION : (Verified 7/1/11) California Advocates for Nursing Home Reform ARGUMENTS IN SUPPORT : Proponents state that the 15-day period in PROB Section 2901 is too short to prepare the necessary paperwork, file it with the court, and receive the temporary letters of conservatorship. Further, due to the current limitations on judicial resources, the sponsors report that it has become impossible to become temporary conservator of a person within 15 days. This may lead to situations where the public guardian takes control of property, loses it after 15 days, but then gains control again several weeks later when the temporary letters of conservatorship are issued. This bill extends the effective duration of the certificate of authority issued by the public guardian from 15 days to 30 days for certificates issued under PROB Section 2901. This change, according to the public guardians, would give them ample time to gather relevant information (including completion of a police or adult protection services investigation, if necessary) and to prepare the proper petitions for filing. ARGUMENTS IN OPPOSITION : The California Advocates for Nursing Home Reform (CANHR) opposes this bill, arguing that it does not provide additional senior and dependent adult CONTINUED AB 1288 Page 5 protection. CANHR argues that the public guardian/conservator can take immediate control over an individual's property if necessary. CANHR argues that "Ýa]lternatively, a temporary restraining order could be obtained, prohibiting continued abusive conduct, including actions pertaining to a trust." ASSEMBLY FLOOR : 78-0, 5/19/11 AYES: Achadjian, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones, Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Alejo, Gorell RJG:kc 7/1/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED