Amended in Assembly April 22, 2013

Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1339

Introduced by Assembly Member Maienschein

February 22, 2013

An act to amend Sections 1510, 1821, 2250, and 2643 of, and to add Sections 2614.7 and 2643.1 to, the Probate Code, relating to professional fiduciaries.

LEGISLATIVE COUNSEL’S DIGEST

AB 1339, as amended, Maienschein. Professional fiduciaries: guardians and conservators.

Existing law provides that a relative or other person on behalf of a minor, or a minor if he or she is 12 years of age or older, may file a petition for the appointment of a guardian of the person or estate of the minor. Existing law also provides that certain persons may file a petition for the appointment of a conservator. Existing law provides that on or after the filing of a petition for appointment of a guardian or conservator, a person entitled to petition for the appointment of a guardian or conservator may file a petition for the appointment of a temporary guardian or temporary conservator, as specified. Under existing law, when a petition to appoint a conservator or a temporary conservator is filed, and the petitioner is a professional fiduciary, as defined, the petition must include specified additional information, including the petitioner’s license information and a statement explaining who engaged the petitioner or how the petitioner was engaged to file the petition for appointment of a conservator and what prior relationship the petitioner had with the proposed conservatee or the proposed begin delete conservantee’s end delete begin insert conservatee’s end insert family or friends.

This bill would require that when a petition to appoint a conservator or a temporary conservator is filed, and the petitioner is a professional fiduciary, as defined, the petition also include the petitioner’s proposed hourly fee schedule or another statement of the petitioner’s proposed compensation from the estate of the proposed conservatee for services performed.

This bill would also require, when a petition to appoint a guardian or temporary guardian is filed, and the petitioner is a professional fiduciary, as defined, the petition to include the same additional information as when a professional fiduciary files a petition to appoint a conservator or a temporary conservator.

Existing law requires, within 90 days of a guardian’s or conservator’s appointment, the guardian or conservator to file an inventory and appraisal.

This bill would require the guardian or conservator, if he or she is a professional fiduciary, as defined, to file concurrently with the inventory and appraisal a proposed hourly fee schedule or another statement of his or her proposed compensation from the estate of the ward or conservatee for services performed.

Existing law permits the court, on petition by the guardian or conservator, to authorize periodic payments on account to the guardian or conservator for the services rendered by those persons during the period covered by each payment.

This bill would permit the court, on petition by a guardian or conservator who is a professional fiduciary, as defined, to authorize periodic payments on account only if the guardian or conservator filed a proposed hourly fee schedule or another statement of his or her proposed compensation from the estate of the ward or conservatee for services performed with the inventory and appraisal and only after addressing all objections to the petition. This bill would also provide that begin insert the end insert authorization for periodic payments to a guardian or conservator who is a professional fiduciary, as defined, begin delete would terminate, as specified, if end delete begin insert shall terminate as of the due date of end insert the next succeeding begin delete accounting is filed delinquently. end delete begin insert accounting. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1510 of the Probate Code is amended to
read:

1510.  

(a) A relative or other person on behalf of the minor, or
the minor if 12 years of age or older, may file a petition for the
appointment of a guardian of the minor. A relative may file a
petition for the appointment of a guardian under this section
regardless of the relative’s immigration status.

(b) The petition shall request that a guardian of the person or
estate of the minor, or both, be appointed, shall specify the name
and address of the proposed guardian and the name and date of
birth of the proposed ward, and shall state that the appointment is
necessary or convenient.

(c) The petition shall set forth, so far as is known to the
petitioner, the names and addresses of all of the following:

(1) The parents of the proposed ward.

(2) The person having legal custody of the proposed ward and,
if that person does not have the care of the proposed ward, the
person having the care of the proposed ward.

(3) The relatives of the proposed ward within the second degree.

(4) In the case of a guardianship of the estate, the spouse of the
proposed ward.

(5) Any person nominated as guardian for the proposed ward
under Section 1500 or 1501.

(6) In the case of a guardianship of the person involving an
Indian child, any Indian custodian and the Indian child’s tribe.

(d) If the petitioner is a professional fiduciary, as described in
Section 2340, who is required to be licensed under the Professional
Fiduciaries Act (Chapter 6 (commencing with Section 6500) of
Division 3 of the Business and Professions Code), the petition
shall include the following:

(1) The petitioner’s proposed hourly fee schedule or another
statement of his or her proposed compensation from the estate of
the proposed ward for services performed as a guardian. begin insert The
petitioner’s provision of a proposed hourly fee schedule or another
statement of his or her proposed compensation, as required by
this paragraph, shall not preclude a court from later reducing the
petitioner’s fees or other compensation. end insert

(2) Unless a petition for appointment of a temporary guardian
that contains the statements required by this paragraph is filed
together with a petition for appointment of a guardian, both of the
following:

(A) A statement of the petitioner’s license information.

(B) A statement explaining who engaged the petitioner or how
the petitioner was engaged to file the petition for appointment of
a guardian or to agree to accept the appointment as guardian and
what prior relationship the petitioner had with the proposed ward
or the proposed ward’s family or friends.

(e) If the proposed ward is a patient in or on leave of absence
from a state institution under the jurisdiction of the State
Department of State Hospitals or the State Department of
Developmental Services and that fact is known to the petitioner,
the petition shall state that fact and name the institution.

(f) The petition shall state, so far as is known to the petitioner,
whether or not the proposed ward is receiving or is entitled to
receive benefits from the Veterans Administration and the
estimated amount of the monthly benefit payable by the Veterans
Administration for the proposed ward.

(g) If the petitioner has knowledge of any pending adoption,
juvenile court, marriage dissolution, domestic relations, custody,
or other similar proceeding affecting the proposed ward, the
petition shall disclose the pending proceeding.

(h) If the petitioners have accepted or intend to accept physical
care or custody of the child with intent to adopt, whether formed
at the time of placement or formed subsequent to placement, the
petitioners shall so state in the guardianship petition, whether or
not an adoption petition has been filed.

(i) If the proposed ward is or becomes the subject of an adoption
petition, the court shall order the guardianship petition consolidated
with the adoption petition, and the consolidated case shall be heard
and decided in the court in which the adoption is pending.

(j) If the proposed ward is or may be an Indian child, the petition
shall state that fact.

SEC. 2.  

Section 1821 of the Probate Code is amended to read:

1821.  

(a) The petition shall request that a conservator be
appointed for the person or estate, or both, shall specify the name,
address, and telephone number of the proposed conservator and
the name, address, and telephone number of the proposed
conservatee, and state the reasons why a conservatorship is
necessary. Unless the petitioner is a bank or other entity authorized
to conduct the business of a trust company, the petitioner shall
also file supplemental information as to why the appointment of
a conservator is required. The supplemental information to be
submitted shall include a brief statement of facts addressed to each
of the following categories:

(1) The inability of the proposed conservatee to properly provide
for his or her needs for physical health, food, clothing, and shelter.

(2) The location of the proposed conservatee’s residence and
the ability of the proposed conservatee to live in the residence
while under conservatorship.

(3) Alternatives to conservatorship considered by the petitioner
and reasons why those alternatives are not available.

(4) Health or social services provided to the proposed
conservatee during the year preceding the filing of the petition,
when the petitioner has information as to those services.

(5) The inability of the proposed conservatee to substantially
manage his or her own financial resources, or to resist fraud or
undue influence.

The facts required to address the categories set forth in
paragraphs (1) to (5), inclusive, shall be set forth by the petitioner
when he or she has knowledge of the facts or by the declarations
or affidavits of other persons having knowledge of those facts.

Where any of the categories set forth in paragraphs (1) to (5),
inclusive, are not applicable to the proposed conservatorship, the
petitioner shall so indicate and state on the supplemental
information form the reasons therefor.

The Judicial Council shall develop a supplemental information
form for the information required pursuant to paragraphs (1) to
(5), inclusive, after consultation with individuals or organizations
approved by the Judicial Council, who represent public
conservators, court investigators, the State Bar, specialists with
experience in performing assessments and coordinating
community-based services, and legal services for the elderly and
disabled.

The supplemental information form shall be separate and distinct
from the form for the petition. The supplemental information shall
be confidential and shall be made available only to parties, persons
given notice of the petition who have requested this supplemental
information or who have appeared in the proceedings, their
attorneys, and the court. The court shall have discretion at any
other time to release the supplemental information to other persons
if it would serve the interests of the conservatee. The clerk of the
court shall make provision for limiting disclosure of the
supplemental information exclusively to persons entitled thereto
under this section.

(b) The petition shall set forth, so far as they are known to the
petitioner, the names and addresses of the spouse or domestic
partner, and of the relatives of the proposed conservatee within
the second degree. If no spouse or domestic partner of the proposed
conservatee or relatives of the proposed conservatee within the
second degree are known to the petitioner, the petition shall set
forth, so far as they are known to the petitioner, the names and
addresses of the following persons who, for the purposes of Section
1822, shall all be deemed to be relatives:

(1) A spouse or domestic partner of a predeceased parent of a
proposed conservatee.

(2) The children of a predeceased spouse or domestic partner
of a proposed conservatee.

(3) The siblings of the proposed conservatee’s parents, if any,
but if none, then the natural and adoptive children of the proposed
conservatee’s parents’ siblings.

(4) The natural and adoptive children of the proposed
conservatee’s siblings.

(c) If the petitioner is a professional fiduciary, as described in
Section 2340, who is required to be licensed under the Professional
Fiduciaries Act (Chapter 6 (commencing with Section 6500) of
Division 3 of the Business and Professions Code), the petition
shall include the following:

(1) The petitioner’s proposed hourly fee schedule or another
statement of his or her proposed compensation from the estate of
the proposed conservatee for services performed as a conservator.
begin insert The petitioner’s provision of a proposed hourly fee schedule or
another statement of his or her proposed compensation, as required
by this paragraph, shall not preclude a court from later reducing
the petitioner’s fees or other compensation. end insert

(2) Unless a petition for appointment of a temporary conservator
that contains the statements required by this paragraph is filed
together with a petition for appointment of a conservator, both of
the following:

(A) A statement of the petitioner’s license information.

(B) A statement explaining who engaged the petitioner or how
the petitioner was engaged to file the petition for appointment of
a conservator or to agree to accept the appointment as conservator
and what prior relationship the petitioner had with the proposed
conservatee or the proposed conservatee’s family or friends.

(d) If the petition is filed by a person other than the proposed
conservatee, the petition shall include a declaration of due diligence
showing both of the following:

(1) Either the efforts to find the proposed conservatee’s relatives
or why it was not feasible to contact any of them.

(2) Either the preferences of the proposed conservatee
concerning the appointment of a conservator and the appointment
of the proposed conservator or why it was not feasible to ascertain
those preferences.

(e) If the petition is filed by a person other than the proposed
conservatee, the petition shall state whether or not the petitioner
is a creditor or debtor, or the agent of a creditor or debtor, of the
proposed conservatee.

(f) If the proposed conservatee is a patient in or on leave of
absence from a state institution under the jurisdiction of the State
Department of State Hospitals or the State Department of
Developmental Services and that fact is known to the petitioner,
the petition shall state that fact and name the institution.

(g) The petition shall state, so far as is known to the petitioner,
whether or not the proposed conservatee is receiving or is entitled
to receive benefits from the Veterans Administration and the
estimated amount of the monthly benefit payable by the Veterans
Administration for the proposed conservatee.

(h) The petition may include an application for any order or
orders authorized under this division, including, but not limited
to, orders under Chapter 4 (commencing with Section 1870).

(i) The petition may include a further statement that the proposed
conservatee is not willing to attend the hearing on the petition,
does not wish to contest the establishment of the conservatorship,
and does not object to the proposed conservator or prefer that
another person act as conservator.

(j) In the case of an allegedly developmentally disabled adult,
the petition shall set forth the following:

(1) The nature and degree of the alleged disability, the specific
duties and powers requested by or for the limited conservator, and
the limitations of civil and legal rights requested to be included in
the court’s order of appointment.

(2) Whether or not the proposed limited conservatee is or is
alleged to be developmentally disabled.

Reports submitted pursuant to Section 416.8 of the Health and
Safety Code meet the requirements of this section, and
conservatorships filed pursuant to Article 7.5 (commencing with
Section 416) of Part 1 of Division 1 of the Health and Safety Code
are exempt from providing the supplemental information required
by this section, so long as the guidelines adopted by the State
Department of Developmental Services for regional centers require
the same information that is required pursuant to this section.

SEC. 3.  

Section 2250 of the Probate Code is amended to read:

2250.  

(a) On or after the filing of a petition for appointment
of a guardian or conservator, any person entitled to petition for
appointment of the guardian or conservator may file a petition for
appointment of:

(1) A temporary guardian of the person or estate, or both.

(2) A temporary conservator of the person or estate, or both.

(b) The petition shall state facts which establish good cause for
appointment of the temporary guardian or temporary conservator.
The court, upon that petition or other showing as it may require,
may appoint a temporary guardian of the person or estate, or both,
or a temporary conservator of the person or estate, or both, to serve
pending the final determination of the court upon the petition for
the appointment of the guardian or conservator.

(c) If the petitioner is a professional fiduciary, as described in
Section 2340, who is required to be licensed under the Professional
Fiduciaries Act (Chapter 6 (commencing with Section 6500) of
Division 3 of the Business and Professions Code), the petition for
appointment of a temporary guardian or temporary conservator
shall include the following:

(1) The petitioner’s proposed hourly fee schedule or another
statement of his or her proposed compensation from the estate of
the proposed ward or proposed conservatee for services performed
as a guardian or conservator. begin insert The petitioner’s provision of a
proposed hourly fee schedule or another statement of his or her
proposed compensation, as required by this paragraph, shall not
preclude a court from later reducing the petitioner’s fees or other
compensation. end insert

(2) Unless a petition for appointment of a guardian or
conservator that contains the statements required by this paragraph
is filed together with a petition for appointment of a temporary
guardian or temporary conservator, both of the following:

(A) A statement of the petitioner’s registration or license
information.

(B) A statement explaining who engaged the petitioner or how
the petitioner was engaged to file the petition for appointment of
a temporary guardian or temporary conservator or to agree to accept
the appointment as temporary guardian or temporary conservator
and what prior relationship the petitioner had with the proposed
ward or proposed conservatee or the proposed ward’s or proposed
conservatee’s family or friends.

(d) If the petition is filed by a party other than the proposed
conservatee, the petition shall include a declaration of due diligence
showing both of the following:

(1) Either the efforts to find the proposed conservatee’s relatives
named in the petition for appointment of a general conservator or
why it was not feasible to contact any of them.

(2) Either the preferences of the proposed conservatee
concerning the appointment of a temporary conservator and the
appointment of the proposed temporary conservator or why it was
not feasible to ascertain those preferences.

(e) Unless the court for good cause otherwise orders, at least
five court days before the hearing on the petition, notice of the
hearing shall be given as follows:

(1) Notice of the hearing shall be personally delivered to the
proposed ward if he or she is 12 years of age or older, to the parent
or parents of the proposed ward, and to any person having a valid
visitation order with the proposed ward that was effective at the
time of the filing of the petition. Notice of the hearing shall not be
delivered to the proposed ward if he or she is under 12 years of
age. In a proceeding for temporary guardianship of the person,
evidence that a custodial parent has died or become incapacitated,
and that the petitioner is the nominee of the custodial parent, may
constitute good cause for the court to order that this notice not be
delivered.

(2) Notice of the hearing shall be personally delivered to the
proposed conservatee, and notice of the hearing shall be served
on the persons required to be named in the petition for appointment
of conservator. If the petition states that the petitioner and the
proposed conservator have no prior relationship with the proposed
conservatee and has not been nominated by a family member,
friend, or other person with a relationship to the proposed
conservatee, notice of hearing shall be served on the public
guardian of the county in which the petition is filed.

(3) A copy of the petition for temporary appointment shall be
served with the notice of hearing.

(f) If a temporary guardianship is granted ex parte and the
hearing on the general guardianship petition is not to be held within
30 days of the granting of the temporary guardianship, the court
shall set a hearing within 30 days to reconsider the temporary
guardianship. Notice of the hearing for reconsideration of the
temporary guardianship shall be provided pursuant to Section
1511, except that the court may for good cause shorten the time
for the notice of the hearing.

(g) Visitation orders with the proposed ward granted prior to
the filing of a petition for temporary guardianship shall remain in
effect, unless for good cause the court orders otherwise.

(h) (1) If a temporary conservatorship is granted ex parte, and
a petition to terminate the temporary conservatorship is filed more
than 15 days before the first hearing on the general petition for
appointment of conservator, the court shall set a hearing within
15 days of the filing of the petition for termination of the temporary
conservatorship to reconsider the temporary conservatorship.
Unless the court otherwise orders, notice of the hearing on the
petition to terminate the temporary conservatorship shall be given
at least 10 days prior to the hearing.

(2) If a petition to terminate the temporary conservatorship is
filed within 15 days before the first hearing on the general petition
for appointment of conservator, the court shall set the hearing at
the same time that the hearing on the general petition is set. Unless
the court otherwise orders, notice of the hearing on the petition to
terminate the temporary conservatorship pursuant to this section
shall be given at least five court days prior to the hearing.

(i) If the court suspends powers of the guardian or conservator
under Section 2334 or 2654 or under any other provision of this
division, the court may appoint a temporary guardian or conservator
to exercise those powers until the powers are restored to the
guardian or conservator or a new guardian or conservator is
appointed.

(j) If for any reason a vacancy occurs in the office of guardian
or conservator, the court, on a petition filed under subdivision (a)
or on its own motion, may appoint a temporary guardian or
conservator to exercise the powers of the guardian or conservator
until a new guardian or conservator is appointed.

(k) On or before January 1, 2008, the Judicial Council shall
adopt a rule of court that establishes uniform standards for good
cause exceptions to the notice required by subdivision (e), limiting
those exceptions to only cases when waiver of the notice is
essential to protect the proposed conservatee or ward, or the estate
of the proposed conservatee or ward, from substantial harm.

(l) A superior court shall not be required to perform any duties
imposed pursuant to the amendments to this section enacted by
Chapter 493 of the Statutes 2006 until the Legislature makes an
appropriation identified for this purpose.

SEC. 4.  

Section 2614.7 is added to the Probate Code, to read:

2614.7.  

If a guardian or conservator of the person or estate, or
both, is a professional fiduciary, as described in Section 2340, who
is required to be licensed under the Professional Fiduciaries Act
(Chapter 6 (commencing with Section 6500) of Division 3 of the
Business and Professions Code), the guardian or conservator shall
file, concurrently with the inventory and appraisal required by
Section 2610, a proposed hourly fee schedule or another statement
of his or her proposed compensation from the estate of the ward
or conservatee for services performed as a guardian or conservator.
begin insert The filing of a proposed hourly fee schedule or another statement
of the guardian or conservator’s proposed compensation, as
required by this section, shall not preclude a court from later
reducing the petitioner’s fees or other compensation. end insert

SEC. 5.  

Section 2643 of the Probate Code is amended to read:

2643.  

(a) Except as provided in Section 2643.1, on petition
by the guardian or conservator of the person or estate, or both, the
court may by order authorize periodic payments on account to any
one or more of the following persons for the services rendered by
that person during the period covered by each payment:

(1) The guardian of the person.

(2) The guardian of the estate.

(3) The conservator of the person.

(4) The conservator of the estate.

(5) The attorney for the guardian or conservator of the person
or estate, or both.

(b) Notice of the hearing on the petition shall be given for the
period and in the manner provided in Chapter 3 (commencing with
Section 1460) of Part 1.

(c) The petition shall describe the services to be rendered on a
periodic basis and the reason why authority to make periodic
payments is requested. In fixing the amount of the periodic
payment, the court shall take into account the services to be
rendered on a periodic basis and the reasonable value of those
services. The guardian or conservator of the estate may make the
periodic payments authorized by the order only if the services
described in the petition are actually rendered. The payments made
pursuant to the order are subject to review by the court upon the
next succeeding account of the guardian or conservator of the
estate to determine that the services were actually rendered and
that the amount paid on account was not unreasonable, and the
court shall make an appropriate order if the court determines that
the amount paid on account was either excessive or inadequate in
view of the services actually rendered.

SEC. 6.  

Section 2643.1 is added to the Probate Code, to read:

2643.1.  

(a) On petition by a guardian or conservator of the
person or estate, or both, who is a professional fiduciary, as
described in Section 2340 and who is required to be licensed under
the Professional Fiduciaries Act (Chapter 6 (commencing with
Section 6500) of Division 3 of the Business and Professions Code),
the court may by order authorize periodic payments on account to
a person described in subdivision (a) of Section 2643 for the
services rendered by that person during the period covered by each
payment only if that person has filed a proposed hourly fee
schedule or another statement of his or her proposed compensation
from the estate of the ward or conservatee for services performed
as a guardian or conservator, as required by Section 2614.7, and
only after begin delete the time for filing objections under subdivision (d) has
expired and end delete the court has addressed any objections filed pursuant
to begin delete that subdivision. end delete begin insert subdivision (d). end insert

(b) The petition shall describe the services to be rendered on a
periodic basis, the reason why authority to make periodic payments
is requested, and a begin delete budget of anticipated estate income and
expenditures end delete begin insert good faith estimate of the fees to be charged by the
professional fiduciary end insert from the date the petition is filed up to, and
including, the date of the next succeeding account required by
Section begin delete 2620. end delete begin insert 2620 or, if the next succeeding account required by
Section 2620 is due in less than one year, a good faith estimate of
the fees to be charged by the professional fiduciary from the date
the petition is filed through the next succeeding 12 months,
inclusive. Prior to ordering periodic payments or fixing the amount
of the periodic payment, the court shall determine whether making
periodic payments is in the best interest of the ward or conservatee,
taking into consideration the needs of the ward or conservatee
and the need to preserve and protect the estate. If the court
determines that making periodic payments is not in the best interest
of the ward or conservatee, the court shall deny the petition to
authorize periodic payments. If the court determines that making
periodic payments is in the best interest of the ward or conservatee,
the court shall fix the amount of the periodic payment. end insert In fixing
the amount of the periodic payment, the court shall take into
account the services to be rendered on a periodic basis and the
reasonable value of those services.

(c) (1) Notice of the hearing on the petition and notice of how
to file an objection to the petition shall be given for the period and
in the manner provided in Chapter 3 (commencing with Section
1460) of Part 1.

(2)  begin delete If a court investigator has been appointed, the end delete begin insert The end insert notices
required by paragraph (1) shall be made to the court investigator
for the period and in the manner provided in Chapter 3
(commencing with Section 1460) of Part 1.

(d) (1)  begin delete Within 30 days of giving notice as required by paragraph
(1) of subdivision (c), any end delete begin insert Any end insert person entitled to notice under begin delete that end delete
paragraph begin insert (1) of subdivision (c) end insert may file with the court a written
objection to the authorization of periodic payments on account.
The court clerk shall set any objections for a hearing no fewer than
15 days after the date the objections are filed.

(2) If an objection is filed pursuant to paragraph (1), the guardian
or conservator shall have the burden of establishing the necessity
for and amount, if any, of periodic payments.

(e) The guardian or conservator of the estate may make the
periodic payments authorized by the order only if the services
described in the petition are actually rendered. The payments made
pursuant to the order begin delete are subject to review end delete begin insert shall be reviewed end insert by
the court upon the next succeeding account of the guardian or
conservator of the estate to determine that the services were
actually rendered and that the amount paid on account was begin delete not
unreasonable, and the end delete begin insert reasonable and in the best interest of the
ward or conservatee, taking into consideration the needs of the
ward or conservatee and the need to preserve and protect the
estate. The end insert court shall make an appropriate order begin insert reducing the
guardian or conservator’s compensation end insert if the court determines
that the amount paid on account was either begin delete excessive or inadequate end delete
begin insert unreasonable or not in the best interest of the ward or conservatee end insert
in view of the services actually rendered.

(f)  begin delete If the next succeeding account required by Section 2620 is
not timely filed, the end delete begin insert The end insert authorization for periodic payments
granted pursuant to this section shall terminate as of the begin insert due end insert date
of begin delete that accounting. end delete begin insert the next succeeding account required by Section
2620. end insert Nothing in this section shall preclude a guardian or
conservator from filing a subsequent petition to receive periodic
payments pursuant to this section.

begin delete

(g) By January 1, 2015, the Judicial Council shall develop a
form to effectuate the notices required in subdivision (c).

end delete