BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  AB 1288|
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                                 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 
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          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 

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          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)


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          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 

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          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

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