BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 940 (Jackson)
As Amended March 10, 2014
Hearing Date: April 1, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
California Conservatorship Jurisdiction Act
DESCRIPTION
This bill, effective January 1, 2016, would establish the
California Conservatorship Jurisdiction Act (CCJA), which would
provide jurisdictional and procedural guidance on
conservatorship proceedings between California and other states.
BACKGROUND
In California, if an adult is unable to manage his or her
financial matters, a conservator of the estate may be appointed
by a court to manage the adult's (conservatee) financial
matters. If the adult is unable to manage his or her medical
and personal decisions, a conservator of the person may be
appointed. Similarly, a guardian of the estate or person may be
appointed for a minor child (ward).
Conservatorships are becoming common across the United States
because the proportion of elderly adults in the population is
increasing. People often move from one state to another, own
property or conduct transactions in more than one state, and
spend time in multiple locations. Due to these developments,
conservatorship jurisdictional disputes between states are
increasing and raise issues relating to the transfer of a
conservatorship from one state to another and requests for
recognition in one state of a conservatorship established in
another state.
In 2007, the Uniform Law Commission proposed the Uniform Adult
(more)
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Guardianship and Protective Proceedings Jurisdiction Act
(UAGPPJA) for enactment in all 50 states. To resolve
jurisdictional issues between guardianship (known as
conservatorship in California) courts of multiple states and to
facilitate cooperation between these courts, the UAGPPJA, based
on the provisions of the Uniform Child Custody Jurisdiction and
Enforcement Act (adopted by California in 1999), has been
enacted in some form in 37 states, Puerto Rico, and the District
of Columbia.
In 2011, pursuant to authorization under ACR 49 (Evans, Res. Ch.
98, Stats. 2009), the California Law Revision Commission (CLRC)
began studying the UAGPPJA for potential adoption by California.
(See Cal. Law Rev. Com., Recommendation, Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act (Dec.
2013) [as of Mar. 25, 2014].) During
this process, the CLRC crafted UAGPPJA provisions modified to
fit California law, received public comment, and revised those
provisions to address the public comments.
This bill, effective January 1, 2016, would implement the final
version of the UAGPPJA recommended by the CLRC and establish the
California Conservatorship Jurisdiction Act (CCJA).
CHANGES TO EXISTING LAW
1. Existing law provides that the effect of a judicial record of
a sister state is the same in California as in the state where
it was made, except that it can only be enforced in California
by an action or special proceeding, and the authority of a
conservator does not extend beyond the jurisdiction of the
sister state except to the extent expressly authorized by
statute. (Code Civ. Proc. Sec. 1913.)
This bill would also authorize the conservator to take action
pursuant to the California Conservatorship Jurisdiction Act
(CCJA).
2. Existing law authorizes courts to charge filing fees
associated with actions brought pursuant to the Probate Code.
(Gov. Code Sec. 70650 et seq.)
This bill would also authorize courts to charge $30 for the
registration of a conservatorship established pursuant to the
CCJA.
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3. Existing law authorizes parties in Probate Code cases to
appeal specified court orders. (Prob. Code Sec. 1300 et seq.)
This bill would authorize parties to CCJA actions to appeal
court orders as follows:
An appeal may be taken from an order assessing expenses
against a party where jurisdiction to appoint a conservator
was acquired because of unjustifiable conduct if the amount
exceeds $5,000.
An order relating to jurisdiction acquired because of
unjustifiable conduct assessing expenses of $5,000 or less
against a party may be reviewed on an appeal by that party
after entry of a final judgment or an appealable order in
the conservatorship proceeding. At the discretion of the
court of appeal, that type of order may also be reviewed
upon petition for an extraordinary writ.
An appeal may be taken from an order denying a petition
to transfer a conservatorship to another state.
An appeal may be taken from a final order accepting a
transfer and appointing a conservator in this state.
This bill would further provide that an appeal may not be
taken from either of the following until the court enters a
final order accepting the proposed transfer and appointing a
conservator in this state: (1) an order determining whether
or how to conform a conservatorship to the law of this state;
or (2) an order that is made pursuant to a court review as
specified.
4. Existing law authorizes a party who petitions the court for
appointment of a guardian or conservator to also petition for
instructions or to grant the guardian or conservator a power
or authority. (Prob. Code Sec. 1455.)
This bill would also authorize the party who petitions the
court for transfer of conservatorship to also petition for
instructions or to grant the conservator a power of authority.
5. Existing law requires the court to appoint a public defender
or private counsel to represent the interests of a
conservatee, proposed conservatee, or person alleged to lack
legal capacity who is unable to retain legal counsel and
requests appointment of counsel in specified proceedings.
(Prob. Code Sec. 1471.)
This bill would also require the court to appoint legal
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counsel for that person in a proceeding to transfer a
conservatorship and make minor technical changes to that
section.
6. Existing law requires that a petition to request that a
conservator be appointed for the person or estate, or both, of
a proposed conservatee include specified information. (Prob.
Code Sec. 1821.)
This bill would also require that petition to state, so far as
is known to the petitioner, whether or not the proposed
conservatee is a member of a federally recognized Indian
tribe. If so, this bill would also require the petition to
state the name of the tribe, the state in which the tribe is
located, whether the proposed conservatee resides on tribal
land, and whether the proposed conservatee is known to own
property on tribal land. This bill would define "tribal land"
to mean land that is, with respect to a specific Indian tribe
and the members of that tribe, "Indian country" as defined in
the United States Code.
7. Existing law requires that, before letters (which specify
appointment, powers, and conditions of the conservator) are
issued, the conservator (other than a trust company or a
public conservator) must file an acknowledgment of receipt of
(1) a statement of duties and liabilities of the office of
conservator, and (2) a copy of the conservatorship information
required as specified. (Prob. Code Sec. 1834.)
This bill would clarify that the conservator must file that
information before letters are issued in a conservatorship
that originates in California or a conservatorship that is
transferred to California.
8. Existing law provides specified procedures for the
appointment of a conservator for an absentee or missing
conservatee. (Prob. Code Sec. 1840 et seq.)
This bill would also authorize the appointment of a
conservatee for an absentee or missing conservatee pursuant to
the CCJA and incorporate the relevant cross-references to the
CCJA.
9. Existing law requires a court investigator to periodically,
as specified, visit the conservatee, investigate the
continuing need for the conservatorship, and prepare a report
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submitted to the court. (Prob. Code Sec. 1850 et seq.)
This bill , after issuance of an order provisionally granting a
petition to transfer a conservatee from another state to
California, would require a court investigator to promptly
commence an investigation, as specified, and prepare a report.
This bill would require the court to review the
conservatorship, as specified, and require the conservatee to
attend the hearing unless attendance is excused.
This bill would authorize the court to take appropriate action
in response to the court investigator's report.
This bill would require the court investigator's report to be
confidential.
This bill would require the court to review the
conservatorship one year after the court's initial
conservatorship review and annual thereafter.
This bill would provide that the first time that the need for
a conservatorship is challenged by any interested person or
raised on the court's own motion after a transfer, whether in
an initial or annual court review or in a petition to
terminate the conservatorship, the court shall presume that
there is no need for a conservatorship. This presumption would
be rebuttable, but could only be overcome by clear and
convincing evidence. This bill would require the court to
make an express finding on whether continuation of the
conservatorship is the least restrictive alternative needed
for the protection of the conservatee.
10. Existing law provides that if the court determines that there
is no form of medical treatment for which the conservatee has
the capacity to give an informed consent, the court shall (1)
adjudge that the conservatee lacks the capacity to give
informed consent for medical treatment and (2) by order give
the conservator of the person the powers, as specified.
(Prob. Code Sec. 1880.)
Existing law provides that the court order giving the
conservator of the person specified powers may be included in
the order of appointment of the conservator if the order was
requested in the petition for the appointment of the
conservator or, except in the case of a limited conservator,
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may be made subsequently upon a petition made, noticed, and
heard by the court in the manner provided in this article.
(Prob. Code Sec. 1890.)
This bill would also authorize that court order to be included
in the order of appointment of the conservator if the order
was requested in a transfer petition made pursuant to the
CCJA.
11. This bill would provide general provisions for interstate
jurisdiction, transfer, and recognition of conservatorships
under the CCJA.
This bill would declare the Legislature's intent to enact a
modified version of the Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act.
This bill would not apply to any of the following:
a minor, regardless of whether the minor is or was
married;
any proceeding in which a person is appointed to provide
personal care or property administration for a minor,
including, but not limited to guardianship, which is
otherwise provided for under the Probate Code; and
any proceeding in which a person is involuntarily
committed to a mental health facility or subjected to other
involuntary mental health care, including, but not limited
to, any of the specified proceedings under the Penal Code
and Welfare and Institutions Code.
This bill , with respect to transfers of a conservatorship from
California to another state, would not apply to an adult with
a developmental disability, or to any proceeding in which a
person is appointed to provide personal care or property
administration for an adult with a developmental disability,
including specified proceedings for a limited conservatorship
or under the Health and Safety Code and Welfare and
Institutions Code.
This bill would provide specified, express limitations on the
application of the CCJA to a conservatee with dementia.
This bill would provide that a California court may treat a
foreign country as if it were a state for the purpose of
applying the general, jurisdictional, transfer, and
miscellaneous provisions of the CCJA.
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This bill would authorize a California court to communicate
with a court in another state concerning a proceeding arising
under the CCJA, authorize courts to allow parties to
participate in the communication, and require courts to make a
record of the communications, unless otherwise provided.
This bill would authorize court communications concerning
schedules, calendars, court records, and other administrative
matters without making a recording.
This bill , in a California conservatorship proceeding, would
authorize the California court to request the appropriate
court of another state, and authorize a California court at
the request of another state court, to do any of the
following:
hold an evidentiary hearing;
order a person in that state to produce evidence or give
testimony pursuant to procedures of that state;
order that an evaluation or assessment be made of the
proposed conservatee;
order any appropriate investigation of a person involved
in a proceeding;
forward to the California court a certified copy of the
transcript or other record of a hearing, as specified, or
any other proceeding, any evidence, as specified, and any
evaluation or assessment prepared in compliance with an
order, as specified;
issue any order necessary to ensure the appearance in
the proceeding of a person whose presence is necessary for
the court to make a determination, including the
conservatee or the proposed conservatee; and
issue an order authorizing the release of medical,
financial, criminal, or other relevant information in that
state.
This bill would provide that travel and other necessary and
reasonable expenses incurred under the above provisions may be
assessed against the parties according to California law.
This bill , in a conservatorship proceeding and in addition to
other procedures that may be available, would provide that
testimony of a witness who is located in another state may be
offered by deposition or other means allowable in California
for testimony taken in another state. The court on its own
motion could order that the testimony of a witness be taken in
another state and could prescribe the manner in which and the
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terms upon which the testimony is to be taken.
12. This bill would provide jurisdictional provisions under the
CCJA, and provide the following definitions applicable to
those provisions:
"emergency" means a circumstance that likely will result
in substantial harm to a proposed conservatee's health,
safety, or welfare, and for which the appointment of a
conservator of the person is necessary because no other
person has authority and is willing to act on behalf of the
proposed conservatee;
"home state" means the state in which the proposed
conservatee was physically present, including any period of
temporary absence, for at least six consecutive months
immediately before the filing of a petition for a
conservatorship order, or, if none, the state in which the
proposed conservatee was physically present, including any
period of temporary absence, for at least six consecutive
months ending within the six months prior to the filing of
the petition; and
"significant-connection state" means a state, other than
the home state, with which a proposed conservatee has a
significant connection other than mere physical presence
and in which substantial evidence concerning the proposed
conservatee is available.
This bill would require the court to consider all of the
following in determining whether a proposed conservatee has a
significant connection with a particular state with respect to
a proposed appointment of a conservator because California is
deemed the conservatee's home state or to a proposed transfer
of a California conservatorship to another state:
the location of the proposed conservatee's family and
other persons required to be notified of the
conservatorship proceeding;
the length of time the proposed conservatee at any time
was physically present in the state and the duration of any
absence;
the location of the proposed conservatee's property; and
the extent to which the proposed conservatee has ties to
the state such as voting registration, state or local tax
return filing, vehicle registration, driver's license,
social relationship, and receipt of services.
This bill , for a conservatorship proceeding governed by the
CCJA, would provide the exclusive basis for determining
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whether the courts of this state, as opposed to the courts of
another state, have jurisdiction to appoint a conservator of
the person, a conservator of the estate, or a conservator of
the person and estate.
This bill would provide that a California court has
jurisdiction to appoint a conservator for a proposed
conservatee if:
California is the proposed conservatee's home state;
on the date the petition is filed, California is a
significant-connection state and the respondent does not
have a home state; or
on the date the petition is filed, California is a
significant-connection state and a court of the proposed
conservatee's home state has expressly declined to exercise
jurisdiction because California is a more appropriate
forum.
This bill would also provide that a California court has
jurisdiction to appoint a conservator for a proposed
conservatee if both of the following conditions are satisfied:
on the date the petition is filed, this state is a
significant-connection state, the proposed conservatee has
a home state, and a conservatorship petition is not pending
in a court of the home state or another
significant-connection state; and
before the court makes the appointment, no
conservatorship petition is filed in the proposed
conservatee's home state, no objection to the court's
jurisdiction is filed by a person required to be notified
of the proceeding, and the court in this state concludes
that it is an appropriate forum under the factors set forth
as specified.
This bill would further provide that a California court has
jurisdiction to appoint a conservator for a proposed
conservatee if all of the following conditions are satisfied:
this state does not otherwise have jurisdiction, as
specified;
the proposed conservatee's home state and all
significant-connection states have expressly declined to
exercise jurisdiction because this state is the more
appropriate forum; and
jurisdiction in this state is consistent with the
constitutions of California and the United States.
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This bill would provide that a California court has
jurisdiction to appoint a conservator for a proposed
conservatee if the requirements for special jurisdiction, as
specified, are met.
This bill would provide that a California court that otherwise
lacks jurisdiction, as specified, has special jurisdiction to
do any of the following:
appoint a temporary conservator of the person in an
emergency for a proposed conservatee who is physically
present in California, as specified;
appoint a conservator of the estate with respect to real
or tangible personal property located in California; and
appoint a conservator of the person, conservator of the
estate, or conservator of the person and estate for a
proposed conservatee for whom a provisional order to
transfer a proceeding from another state has been issued
under specified procedures.
This bill , if a petition for the appointment of a conservator
of the person in an emergency is brought in California and
California was not the home state of the proposed conservatee
on the date the petition was filed, would require the court to
dismiss the proceeding at the request of the court of the home
state, if any, whether dismissal is requested before or after
the emergency appointment of a temporary conservator of the
person.
This bill , except as otherwise provided, would provide that a
court that has appointed a conservator consistent with the
CCJA has exclusive and continuing jurisdiction over the
proceeding until it is terminated by the court or the
appointment expires by its own terms.
This bill would provide that a California court having
jurisdiction to appoint a conservator may decline to exercise
its jurisdiction if it determines at any time that a court of
another state is a more appropriate forum. The issue of
appropriate forum may be raised upon a petition of any
interested person, the court's own motion, or the request of
another court.
This bill would require the petitioner, or, if there is no
petitioner, the California court, to give notice of the
petition, motion, or request to the same persons and in the
same manner as for a petition for a conservatorship. This
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bill would require the notice to state the basis for the
petition, motion, or request, and inform the recipients of the
date, time, and place of the hearing. The notice must also
advise the recipients that they have a right to object to the
petition, motion, or request, and the notice to the potential
conservatee shall inform the potential conservatee of the
right to be represented by legal counsel if the potential
conservatee so chooses, and to have legal counsel appointed by
the court if the potential conservatee is unable to retain
legal counsel. This bill would further require the court to
hold a hearing on the petition, motion, or request.
This bill would require a California court declining to
exercise its jurisdiction, as specified, to grant the
petition, motion, or request, and either dismiss or stay any
conservatorship proceeding pending in this state. This bill
would require the court's order to be based on evidence
presented to the court and expressly state that the court
declines to exercise its jurisdiction because a court of
another state is a more appropriate forum. This bill would
authorize the court to impose any condition the court
considers just and proper, including the condition that a
petition for the appointment of a conservator of the person,
conservator of the estate, or conservator of the person and
estate be filed promptly in another state.
This bill would require the court to consider all of the
following when determining the appropriate forum:
any expressed preference of the proposed conservatee;
whether abuse, neglect, or exploitation of the proposed
conservatee has occurred or is likely to occur and which
state could best protect the proposed conservatee from the
abuse, neglect, or exploitation;
the length of time the proposed conservatee was
physically present in or was a legal resident of this or
another state;
the location of the proposed conservatee's family,
friends, and other persons required to be notified of the
conservatorship proceeding;
the distance of the proposed conservatee from the court
in each state;
the financial circumstances of the estate of the
proposed conservatee;
the nature and location of the evidence;
the ability of the court in each state to decide the
issue expeditiously and the procedures necessary to present
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evidence;
the familiarity of the court of each state with the
facts and issues in the proceeding; and
if an appointment were made, the court's ability to
monitor the conduct of the conservator.
This bill , if at any time a California court determines that
it acquired jurisdiction to appoint a conservator because of
unjustifiable conduct, would authorize the court to do any of
the following:
decline to exercise jurisdiction;
exercise jurisdiction for the limited purpose of
fashioning an appropriate remedy to ensure the health,
safety, and welfare of the conservatee or proposed
conservatee or the protection of the property of the
conservatee or proposed conservatee or to prevent a
repetition of the unjustifiable conduct, including staying
the proceeding until a petition for the appointment of a
conservator of the person, conservator of the estate, or
conservator of the person and estate is filed in a court of
another state having jurisdiction; or
continue to exercise jurisdiction after considering the
extent to which the conservatee or proposed conservatee and
all persons required to be notified of the proceedings have
acquiesced in the exercise of the court's jurisdiction,
whether it is a more appropriate forum than the court of
any other state, as specified, and whether the court of any
other state would have jurisdiction under factual
circumstances in substantial conformity with the
jurisdictional standards, as specified.
This bill would provide that if a California court determines
that it acquired jurisdiction to appoint a conservator because
a party seeking to invoke its jurisdiction engaged in
unjustifiable conduct, it may assess against that party
necessary and reasonable expenses, including attorney's fees,
investigative fees, court costs, communication expenses,
medical examination expenses, witness fees and expenses, and
travel expenses. This bill would prohibit a court from
assessing fees, costs, or expenses of any kind against this
state or a governmental subdivision, agency, or
instrumentality of California unless authorized by law other
than CCJA.
This bill , if a petition for the appointment of a conservator
of the person, conservator of the estate, or conservator of
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the person and estate is brought in California and California
was not the home state of the proposed conservatee on the date
the petition was filed, in addition to complying with the
notice requirements of this state, would require the
petitioner to give notice of the petition or of a hearing on
the petition to those persons who would be entitled to notice
of the petition or of a hearing on the petition if a
proceeding were brought in the home state of the proposed
conservatee. This bill would require the notice to be given in
the same manner as notice is required to be given in this
state.
This bill would provide that if a petition for the appointment
of a conservator is filed in this state and in another state
and neither petition has been dismissed or withdrawn, the
following rules apply:
if the California court has jurisdiction, as specified,
it may proceed with the case unless a court in another
state acquires jurisdiction before the appointment; and
if the California court does not have jurisdiction,
whether at the time the petition is filed or at any time
before the appointment, the court must stay the proceeding
and communicate with the court in the other state. If the
court in the other state has jurisdiction, this bill would
require the California court to dismiss the petition unless
the court in the other state determines that the California
court is a more appropriate forum.
13. This bill would establish provisions for the transfer of a
California conservatorship to another state.
This bill would authorize a conservator appointed in
California to petition the court to transfer the
conservatorship to another state.
This bill would require petitioner to give notice of a hearing
on the transfer petition to the persons that would be entitled
to notice of a hearing on a petition in California for the
appointment of a conservator.
This bill would require the court to hold a hearing on the
transfer petition.
This bill would require the court to issue an order
provisionally granting the petition to transfer a
conservatorship of the person, and to direct the conservator
of the person to petition for acceptance of the
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conservatorship in the other state, if the court is satisfied
that the conservatorship will be accepted by the court in the
other state and the court finds all of the following:
the conservatee is physically present in or is
reasonably expected to move permanently to the other state;
an objection to the transfer has not been made or, if an
objection has been made, the court determines that the
transfer would not be contrary to the interests of the
conservatee; and
plans for care and services for the conservatee in the
other state are reasonable and sufficient.
This bill would require the court to issue a provisional order
granting a petition to transfer a conservatorship of the
estate, and to direct the conservator of the estate to
petition for acceptance of the conservatorship in the other
state, if the court is satisfied that the conservatorship will
be accepted by the court of the other state and the court
finds all of the following:
the conservatee is physically present in or is
reasonably expected to move permanently to the other state,
or the conservatee has a significant connection to the
other state considering the specified factors;
an objection to the transfer has not been made or, if an
objection has been made, the court determines that the
transfer would not be contrary to the interests of the
conservatee; and
adequate arrangements will be made for management of the
conservatee's property.
This bill would require the court to issue a provisional order
granting a petition to transfer a conservatorship of the
person and estate and to direct the conservator to petition
for acceptance of the conservatorship in the other state, if
specified requirements are satisfied.
This bill would require the court to issue a final order
confirming the transfer and terminating the California
conservatorship upon its receipt of both of the following:
a provisional order accepting the proceeding from the
court to which the proceeding is to be transferred which is
issued as specified; and
the documents required to terminate a conservatorship in
California, including, but not limited to, any required
accounting.
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This bill , to confirm transfer of a conservatorship to
California, would require the conservator to petition the
California court to accept the conservatorship.
This bill would require that petition to include the
following:
a certified copy of the other state's provisional order
of transfer;
on the first page of the petition, a statement that the
conservatorship does not fall within specified limitations;
in the body of the petition, alleged facts showing that
the CCJA applies and the requirements for transfer of the
conservatorship are satisfied; and
any specific modifications necessary to conform the
conservatorship to the California law, and the terms of a
proposed final order accepting the conservatorship.
This bill would provide that a petition for the appointment of
a temporary conservator of the person or estate, or both, or
pursuant to special jurisdiction, may be filed while a
transfer petition is pending. This bill would require the
petition for the appointment of a temporary conservator to
request the appointment of a temporary conservator eligible
for appointment in California, and shall be limited to powers
authorized for a temporary conservator in California. As
specified, this bill would require the court to treat this
petition as the equivalent of a petition for a general
conservatorship.
This bill would require the petitioner to give notice of a
hearing on a transfer petition to those persons that would be
entitled to notice if the petition were a petition for the
appointment of a conservator in both the transferring state
and this state. This bill would also require the petitioner
to give notice to any attorney of record for the conservatee
in the transferring state and to any attorney appointed or
appearing for the conservatee in this state, as well as notice
in the same manner that notice of a petition for the
appointment of a conservator is required to be given in
California, except that notice to the conservatee shall be
given by mailing the petition instead of by personal service
of a citation.
This bill would provide that any person entitled to that
notice may object to the transfer petition on one or more of
the following grounds:
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transfer of the proceeding would be contrary to the
interests of the conservatee;
under the law of the transferring state, the conservator
is ineligible for appointment in this state;
under California law, the conservator is ineligible for
appointment in this state, and the transfer petition does
not identify a replacement who is willing and eligible to
serve in California; and
the CCJA does not otherwise apply to the conservatee.
This bill , promptly after the filing of a transfer petition,
would require the court to appoint an investigator, who would
be required to promptly commence a preliminary investigation
of the conservatorship, which focuses on specified matters.
This bill would require the court to hold a hearing on a
transfer petition and issue and order provisionally granting
the petition unless the court determines that: (1) transfer
of the proceeding would be contrary to the interests of the
conservatee; (2) under the law of the transferring state, the
conservator is ineligible for appointment in California; (3)
under California law, the conservator is ineligible for
appointment in this state, and the transfer petition does not
identify a replacement who is willing and eligible to serve in
California; or (4) the CCJA does not otherwise apply to the
conservatee.
This bill , if the court issues an order provisionally granting
the petition, would require the investigator to promptly
commence an investigation, as specified.
This bill would require the court, not later than 60 days
after issuance of an order provisionally granting the
petition, to determine whether the conservatorship needs to be
modified to conform to California law. This bill would
authorize the court to take any action necessary to achieve
compliance with California law, including, but not limited to,
striking or modifying any conservator powers that are not
permitted under California law.
This bill would require the court to issue a final order
accepting the proceeding and appointing the conservator, as
specified, in this state upon completion of the conformity
determination and review, or upon its receipt from the court
from which the proceeding is being transferred of a final
order issued transferring the proceeding to California,
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whichever occurs later.
This bill would provide that a transfer to California would
not become effective unless and until the court issues a final
order. This bill would prohibit a conservator from taking
action in California pursuant to a transfer petition unless
and until the transfer becomes effective and all of the
following steps have occurred:
the conservator has taken the required oath
the conservator has filed the required bond, if any;
the court has provided the required information to the
conservator;
the conservator has filed an acknowledgment of receipt ;
and
the clerk of the court has issued the letters of
conservatorship;
This bill would not preclude a person who has been appointed
as a temporary conservator from taking action in California
pursuant to the order establishing the temporary
conservatorship.
This bill would provide that when a transfer to California
becomes effective, the conservatorship is subject to
California law and shall thereafter be treated as a
conservatorship under the law of this state. This bill would
provide that if a law of this state mandates compliance with
special requirements to exercise a particular conservatorship
power or take a particular step, the conservator of a
transferred conservatorship may not exercise that power or
take that step without first complying with those special
requirements.
This bill , except as otherwise required, when the court grants
a transfer petition, would require the court to recognize a
conservatorship order from the other state, including the
determination of the conservatee's incapacity and the
appointment of the conservator.
This bill would provide that the denial by a California court
of a petition to accept a conservatorship transferred from
another state does not affect the ability of the conservator
to otherwise seek appointment as conservator if the court has
jurisdiction to make an appointment other than by reason of
the provisional order of transfer.
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This bill would provide that if a conservatorship is
transferred from a California court to the court of a
California tribe or from the court of a California tribe to a
court of this state, the order that provisionally grants the
transfer may expressly provide that specified powers of the
conservator will not be transferred. This bill would specify
that jurisdiction over the specified powers would be retained
by the transferring state and would not be included in the
powers that are granted to the conservator in the state that
accepts the transfer.
14. This bill would provide conservatorship registration
requirements and recognition of conservatorship orders from
other states.
This bill would provide that if a conservator of the person,
estate, or both, has been appointed in another state and a
petition for the appointment of a conservator of the person,
state, or both, is not pending in this state, the conservator
appointed in the other state, after providing appropriate
notice, may register the conservatorship order in this state
by filing certified copies of the order and letters of office,
and proof of notice as required, together with a cover sheet
approved by the Judicial Council, in the superior court of any
appropriate county of this state.
This bill , at least 15 days before registering a
conservatorship in this state, would require the conservator
to provide notice of intent to register to all of the
following:
the court supervising the conservatorship;
every person who would be entitled to notice of a
petition for the appointment of a conservator in the state
where the conservatorship is being supervised; and
every person who would be entitled to notice of a
petition for the appointment of a conservator in this
state.
This bill would require each notice to prominently state that
when a conservator acts pursuant to registration, the
conservator is subject to the California laws governing the
action, including, but not limited to, all applicable
procedures, and is not authorized to take any action
prohibited by California law. Except as otherwise provided,
this bill would also require each notice to prominently state
that the registration is effective only while the conservatee
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resides in another jurisdiction and does not authorize the
conservator to take any action while the conservatee is
residing in California.
This bill , upon registration of a conservatorship order from
another state, would authorize the conservator, while the
conservatee resides out of this state, to exercise in any
county of this state all powers authorized in the order of
appointment except as prohibited under the laws of this state,
including maintaining actions and proceedings in this state
and, if the conservator is not a resident of this state,
subject to any conditions imposed upon nonresident parties.
When acting pursuant to registration, this bill would specify
that the conservator is subject to the law of this state
governing the action, including, but not limited to, all
applicable procedures, and is not authorized to take any
action prohibited by California law. This bill would provide
that, if a law of this state mandates compliance with special
requirements to exercise a particular conservatorship power or
take a particular step, the conservator of a registered
conservatorship may not exercise that power or take that step
without first complying with those special requirements.
This bill , when a conservator is required to comply California
law that makes it necessary to obtain court approval or take
other action in court, would require the conservator to seek
that approval or proceed as needed in an appropriate court of
this state. In handling the matter, this bill would require
that court to communicate and cooperate with the court that is
supervising the conservatorship.
This bill would provide that conservator CCJA registration
powers only apply when the conservatee resides out of this
state. When the conservatee resides in this state, this bill
would prohibit a conservator from exercising any powers
pursuant to a CCJA registration.
This bill would provide that a California court may grant any
relief available under the CCJA or other California law to
enforce a registered order.
This bill would provide that a third person who acts in good
faith reliance on a conservatorship order registered under the
CCJA is not liable to any person for so acting if all of the
following requirements are satisfied:
the conservator presents to the third person a
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file-stamped copy of the registration documents, including,
but not limited to, the certified copy of the
conservatorship order;
each of the registration documents, including, but not
limited to, the conservatorship order and the file-stamped
cover sheet, appears on its face to be valid;
the conservator presents to the third person a form
approved by the Judicial Council, in which the conservator
attests that the conservatee does not reside in California
and the conservator promises to promptly notify the third
person if the conservatee becomes a California resident;
the form shall also prominently state that the registration
is effective only while the conservatee resides in another
jurisdiction and does not authorize the conservator to take
any action while the conservatee is residing in California;
and
the third person has not received any actual notice that
the conservatee is residing in California.
This bill would specify that the above provisions are not
intended to create an implication that a third person is
liable for acting in reliance on a conservatorship order
registered under the CCJA under circumstances where the above
requirements are not satisfied. This bill would also specify
that the above provisions would not affect any immunity that
may otherwise exist apart from the above provisions.
This bill would provide that a file-stamped copy of the
required CCJA registration documents may be recorded in the
office of any county recorder in California, and a county
recorder may charge a reasonable fee for recordation.
This bill would provide that a conservatorship order of a
court of a California tribe can be registered regardless of
whether the conservatee resides in California, and the effect
of a registered conservatorship order of a court of a
California tribe would not be contingent on whether the
conservatee resides in California. Further, this bill would
not require a California tribe conservator to prove to a third
person that the conservatee is not residing in California.
15. This bill would enact miscellaneous provisions of the CCJA
regarding promotion of uniformity of the law, electronic
signatures and notice delivery.
16. This bill , on or before January 1, 2016, would require the
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Judicial Council to develop court rules and forms necessary
for the implementation of the CCJA, which shall include a
conservatorship registration cover sheet, as specified, a
conservator attestation form, as specified, and notice of
intent to register form.
17. This bill would only apply to conservatorship proceedings
begun on or after January 1, 2016. However, if a
conservatorship proceeding has begun before January 1, 2016,
the conservatorship transfer and registration, uniformity, and
electronic signatures provisions would apply, regardless of
whether a conservatorship order has been issued.
18. This bill would provide that the CCJA jurisdictional
provisions would not apply to a proposed conservatee who is a
member of an Indian tribe with jurisdiction.
This bill would provide the following definitions regarding
federally recognized Indian tribes:
"California tribe" means an Indian tribe with
jurisdiction that has tribal land located in California;
"Indian tribe with jurisdiction" means a federally
recognized Indian tribe that has a court system that
exercises jurisdiction over proceedings that are
substantially equivalent to conservatorship proceedings;
and
"Tribal land" means land that is, with respect to a
specific Indian tribe and the members of that tribe,
"Indian country" as defined in the United States Code,
Title 18, Section 1151.
This bill would provide that if a petition for the appointment
of a conservator has been filed in a court of this state and a
conservator has not yet been appointed, any person entitled to
notice of a hearing on the petition may move to dismiss the
petition on the grounds that the proposed conservatee is a
member of an Indian tribe with jurisdiction, and the petition
shall state the name of the Indian tribe.
This bill would provide that if, after communicating with the
named tribe, the court of this state finds that the proposed
conservatee is a member of an Indian tribe with jurisdiction,
it may grant the motion to dismiss if it finds that there is
good cause to do so. If the motion is granted, the court may
impose any condition the court considers just and proper,
including the condition that a petition for the appointment of
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a conservator be filed promptly in the tribal court.
This bill would provide that in determining whether there is
good cause to grant the motion to dismiss, the court may
consider all relevant factors, including, but not limited to,
the following:
any expressed preference of the proposed conservatee;
whether abuse, neglect, or exploitation of the proposed
conservatee has occurred or is likely to occur and which
state could best protect the proposed conservatee from the
abuse, neglect, or exploitation;
the length of time the proposed conservatee was
physically present in or was a legal resident of this or
another state;
the location of the proposed conservatee's family,
friends, and other persons required to be notified of the
conservatorship proceeding;
the distance of the proposed conservatee from the court
in each state;
the financial circumstances of the estate of the
proposed conservatee;
the nature and location of the evidence;
the ability of the court in each state to decide the
issue expeditiously and the procedures necessary to present
evidence;
the familiarity of the court of each state with the
facts and issues in the proceeding;
if an appointment were made, the court's ability to
monitor the conduct of the conservator; and
the timing of the motion, taking into account the
parties' and court's expenditure of time and resources.
This bill would prohibit the court from dismissing the
petition if the tribal court expressly declines to exercise
its jurisdiction with regard to the proposed conservatee.
19. Existing law provides conservator powers and duties of
nonresident conservatees and conservatorship proceeding
jurisdictional provisions. (Prob. Code Secs. 2107, 2200.)
This bill would make conforming changes to these provisions to
incorporate references to the CCJA.
20. Existing law , before the appointment of a conservator is
effective, requires the guardian or conservator to take an
oath to perform the duties of office according to the law and
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file the required bond, if any. (Prob. Code Sec. 2300.)
This bill would provide conforming changes to these provisions
to incorporate references to the CCJA and clarify that the
oath obligates the guardian or conservator to comply with
California law, as well as other applicable law, at all times,
in any location within or outside of the state. Further, this
bill would clarify that if the conservator petitions for
transfer of the conservatorship to another state pursuant to
the CCJA, the conservator would be required to continue to
comply with California law until the court issues a final
order confirming the transfer and terminating the California
conservatorship.
21. Existing law provides that a guardian or conservator may
establish the residence of the ward or conservatee at a place
not within this state upon permission by the court after a
duly noticed hearing on a petition to establish the residence
in another state, and the order on that petition shall require
the guardian or conservator to return the ward or conservatee
to California or cause a guardianship or conservatorship
proceeding to be commenced in the new state when the ward or
conservatee has lived in the new state for a period of four
months or longer or a shorter period specified in the order.
(Prob. Code Sec. 2352.)
This bill would require that order to require the conservator
to do one of the following when the conservatee has resided in
the other state for a period of four months or longer or
shorter period specified in the order:
return the conservatee to California;
petition for transfer of the conservatorship to the
other state under the CCJA and corresponding law of the
other state; or
cause a conservatorship proceeding or its equivalent to
be commenced in the other state.
22. Existing law provides specified court jurisdiction for claims
or matters involving the interests of the ward or conservatee
(i.e., care, safety, or property interests). (Prob. Code Sec.
2505.)
This bill would exempt registered conservatorships from these
jurisdictional provisions and instead provide court approval
as required under the CCJA or, when the claim or matter in
question is the subject of a pending action or proceeding that
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is not brought in a California court, the court approval
otherwise required may be obtained from the court in which the
action or proceeding is pending.
23. Existing law provides that a guardian or conservator may be
removed for specified causes. (Prob. Code Sec. 2650.)
This bill would also authorize removal of a conservator
appointed by a court in another jurisdiction if that person
would not have been appointed in this state despite being
eligible to serve under the law of this state.
24. Existing law allows a conservator or comparable fiduciary of
a nonresident conservatee to petition the court to have
property owned by the nonresident conservatee removed to the
state of the conservatee's residence. (Prob. Code Sec. 3800.)
This bill would provide that if a conservatorship was
transferred from California to another state pursuant to the
CCJA, the foreign conservator may remove the conservatee's
personal property from California without seeking a petition
to have the conservatee's property removed to the other state.
25. This bill would be operative on January 1, 2016, except for
the provision requiring the Judicial Council to develop rules
and forms necessary for the implementation of this bill, which
would be operative on January 1, 2015.
COMMENT
1. Stated need for the bill
The author writes:
Conservatorships are becoming common across the United States
because the proportion of elderly adults in the population is
increasing. The country's population is also highly mobile.
People often move from one state to another, own property or
conduct transactions in more than one state, and spend time in
multiple locations. Due to these developments, several
problems relating to conservatorships are occurring: (1)
jurisdictional disputes; (2) issues relating to transferring a
conservatorship from one state to another; and (3) requests
for recognition of a conservatorship that was established in
another state.
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The Uniform Law Commission has proposed the Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act
(UAGPPJA) for enactment in all 50 states in order to resolve
jurisdictional issues between conservatorship courts of
multiple states and facilitate cooperation between these
courts. The UAGPPJA . . . has been enacted in some form in 37
states, Puerto Rico, and the District of Columbia.
SB 940 would implement the final version of the UAGPPJA
recommended by the CLRC, which would be known as the
California Conservatorship Jurisdiction Act [(CCJA)]. By
implementing that recommendation, SB 940 would help
conservatees, their families, the court system, and others
affected by multi-jurisdictional conservatorship issues by
providing clear guidance for conservatorship jurisdictional
and transfer issues and streamlining the multi-state
conservatorship process for conservators, conservatees, and
courts.
2. Current multi-jurisdictional conservatorship issues
Existing California law provides that, when an adult is unable
to care for his or her own financial matters, a conservator of
the estate may be appointed by a court. If the adult is unable
to manage his or her medical and personal decisions, a
conservator of the person may be appointed, and a conservator of
both the person and estate may be appointed if the adult is
unable to manage both financial and personal matters.
California law separately provides for guardianships for the
management of the financial, medical, and personal decisions for
a child. This bill would establish the CCJA, a modified version
of the UAGPPJA, in California to provide jurisdictional,
transfer, and registration provisions for multi-state
conservatorship proceedings.
As noted by the author, the Uniform Law Commission finalized the
UAGPPJA in 2007 for enactment in all 50 states in order to
resolve jurisdictional issues between conservatorship courts of
multiple states and facilitate cooperation between these courts.
The Alzheimer's Association, in support, notes that "[w]hen
multiple states, each with its own adult guardianship system,
have an interest in a single guardianship case, it may be
unclear which state court has jurisdiction to hear and decide
the legal issues. Adult guardianship jurisdiction issues
commonly arise in situations involving snowbirds (residents of
one state who spend their winters in another state),
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transferred/long-distance caregiving arrangements, interstate
health markets (local medical centers accessed by persons from
multiple states), wandering, and even the rare incident of
elderly kidnapping." The Alzheimer's Association has provided
the following common scenarios which demonstrate the need for
adoption of the CCJA:
1. Transferred Caregiving Arrangements : Jane cares for
her mother who has dementia in their home in Texas. A
Texas court has appointed Jane as her mother's legal
guardian. Unfortunately, Jane's husband loses his job, and
Jane and her family move to Missouri. Neither Texas nor
Missouri have enacted UAGPPJA. Upon arriving in Missouri,
Jane attempts to transfer her Texas guardianship decision
to Missouri, but she is told by the court she must refile
for guardianship under Missouri law because Missouri does
not recognize adult guardianship rights made in other
states. This duplication of effort burdens families both
financially and emotionally.
2. Snowbirds : Alice and Bob are an elderly couple who are
residents of New York, but they spend their winters at a
rental apartment in Florida. Alice has Alzheimer's
disease, and Bob is her primary caregiver. In January, Bob
unexpectedly passes away. When Steve, the couple's son,
arrives in Florida, he realizes that his mother is
incapable of making her own decisions and needs to return
with him to his home in Nebraska. Florida, New York, and
Nebraska have not adopted UAGPPJA. Steve decides to
institute a guardianship proceeding in Florida. The
Florida court claims it does not have jurisdiction because
neither Alice nor Steve have their official residence in
Florida. Steve next tries to file for guardianship in
Nebraska, but the Nebraska court tells Steve that it does
not have jurisdiction because Alice has never lived in
Nebraska, and a New York court must make the guardianship
ruling. If these three states adopted UAGPPJA, the Florida
court initially could have communicated with the New York
court to determine which court had jurisdiction.
3. Interstate Health Markets : Jack, a northern Indiana man
with dementia, is brought to a hospital in Chicago because
he is having chest pains. As it turns out, he is having a
heart attack. While recuperating in the Chicago hospital,
it becomes apparent to a hospital social worker that Jack's
dementia has progressed, and he now needs a guardian.
Unfortunately, Jack does not have any immediate family, and
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his extended family lives at a distance. The social worker
attempts to initiate a guardianship proceeding in Indiana.
However, she is told that because Jack does not intend to
return to Indiana, she must file for guardianship in
Illinois. The Illinois court then refuses guardianship
because Jack does not have residency in Illinois. Even
though the Indiana court is located within miles of the
Illinois state line, no official channel exists for the two
state courts to communicate about adult guardianship
because only Illinois has enacted UAGPPJA.
4. Better Caregiving with UAGPPJA : Sarah, an elderly woman
living in Utah, falls and breaks her hip. She and her
family decide it is best that she recover from her injuries
at her daughter's home in Colorado. During Sarah's stay in
Colorado, her daughter, Lisa, realizes her mother's
cognition is impaired, and she is no longer capable of
making independent decisions. Lisa decides to petition for
guardianship in Colorado. Thankfully, both Colorado and
Utah have adopted UAGPPJA, and the Colorado court can
easily communicate with the Utah court. Following the
rules established in UAGPPJA, the Colorado court asks the
Utah court if any petitions for guardianship for Sarah have
been filed in Utah. The Utah court determines that no
outstanding petitions exist and informs Colorado that it
may take jurisdiction in the case. Thus, although Utah is
Sarah's home state, Colorado may make the guardianship
determination.
The AARP, in support, states that "[a]nother key reason AARP
supports the modified California version of UAGPPJA is because
it reduces the incidence of elder abuse. The [CCJA] will
prevent someone who wrongfully seizes control and assets of an
elderly adult from transporting that person across state lines
and immediately being named their guardian/conservator. It also
allows a court to decline jurisdiction because of unjustifiable
conduct and to penalize the perpetrators of such conduct."
The author argues that by enacting a modified version of the
UAGPPJA, SB 940 would provide clear guidance for conservatorship
jurisdictional and transfer issues and streamline the
multi-state conservatorship process for conservators,
conservatees, and courts. Additionally, by allowing state
courts to communicate with each other to identify pending
conservatorship petitions, this bill would further protect
elders and disabled adults from multi-state elder abuse. For
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these reasons, the UAGPPJA could result in reduced
conservatorship litigation in multiple states, reduced costs for
parties involved in the litigation, less financial burden on the
conservatorship estate, and less court procedural and financial
burdens.
3. Jurisdictional procedures of the CCJA
In enacting the CCJA, this bill would establish specific
provisions to help state courts determine appropriate
jurisdiction for proposed conservatees. (See Proposed Probate
Code Sections 1991-1999.) Jurisdiction under the CCJA would be
determined through a three-tier hierarchy: home state,
significant-connection state, and neither home state nor
significant-connection state. The home state would be
determined by examining where the individual was physically
present for a six-month period preceding the filing of the
petition for appointment. The significant-connection state
would be determined where the proposed conservatee has a
significant connection aside from mere physical presence and in
which significant evidence concerning the individual is
available. When the court is neither the home state nor a
significant-connection state, the court may exercise
jurisdiction in certain limited circumstances. In determining
whether the reviewing court or another state is a more
appropriate forum, the reviewing court would have to consider
the following criteria:
the location of the proposed conservatee's family and other
persons required to be notified of the conservatorship
proceeding;
the length of time the proposed conservatee at any time was
physically present in the state and the duration of any
absence;
the location of the proposed conservatee's property; and
the extent to which the proposed conservatee has ties to the
state such as voting registration, state or local tax return
filing, vehicle registration, driver's license, social
relationship, and receipt of services.
This provision would allow the California court to assess
whether California is the appropriate forum for the proposed
conservatee. This provision is also important in that it avoids
the "dumping" of individuals in California from other states,
which has become more frequent in recent years. This provision
provides that even though another state declines jurisdiction,
California is not automatically required to exercise
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jurisdiction. Additionally, if the California court determines
that it acquired jurisdiction to appoint a conservator because
of unjustifiable conduct, the court would be authorized to
decline to exercise jurisdiction, exercise jurisdiction for the
limited purpose of fashioning an appropriate remedy for the
proposed conservatee, or to continue to exercise jurisdiction
after consideration. This bill would also authorize the court
to assess against the party involved in the unjustifiable
conduct necessary and reasonable expenses, including attorney's
fees, investigative fees, court costs, communication expenses,
medical examination expenses, witness fees and expenses, and
travel expenses.
Arguably, by providing state courts with clear guidance on which
state is the appropriate forum for the proposed conservatorship,
the court will save time and money, and the parties will be able
to avoid costly, duplicative conservatorship proceedings in
multiple states.
4. Transfer of conservatorships to another state
This bill would provide new procedures and considerations for a
California court to determine whether or not to transfer an
established conservatorship to another state or to accept the
transfer from another state. (See Prop. Prob. Code Secs.
2001-2003.) Importantly, the CCJA would only permit a transfer
between California and another "state," as defined, that has
enacted the UAGPPJA's transfer procedure.
This bill would create a conservatorship transfer process that
is an integrated procedure, requiring issuance of four court
orders: (1) a provisional order from State "A" granting the
transfer; (2) a provisional order from State "B" accepting the
transfer; (3) a final order from State "A" confirming the
transfer; and (4) a final order from State "B" accepting the
transfer. As the bill requires action in both the transferring
state and the accepting state, the transfer process cannot be
completed unless both states have enacted the UAGPPJA's transfer
procedure.
Notably, under the CCJA, a conservatorship could not be
transferred to California without the assent of a California
court (through issuance of a provisional order accepting the
transfer and a final order accepting the transfer). If a home
state (other than California) declined to act on the ground that
California would be a more appropriate forum, California would
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not be forced to accept jurisdiction of the conservatorship. A
California court would have control over whether to accept the
transfer. As such, this bill would give a California court the
ability to deny a conservatorship that could be another state's
attempt to "dump" a conservatorship on California.
This bill would also preclude the transfer of a conservatorship
into California if the conservator in the transferring state is
ineligible, under the law of the transferring state, to serve in
California. This provision is important especially if the
conservatee has a public conservator in the other state and a
transfer petition has been filed in a California court. As the
other state's public conservator would be ineligible to act as
the public conservator in California, it is highly unlikely that
a publicly conserved person in another state could be
transferred to California under the proposed law. In this
instance, the conservatorship process would have to be newly
initiated in California following the existing conservatorship
requirements and procedures.
Accordingly, the CCJA would not impose a new mandate to public
conservators because it would not change the existing
responsibilities of California's public conservators. The
conservatees whose conservatorships could be transferred to
California under the CCJA are the same ones who would be
entitled to establish a new conservatorship in California under
existing law. To the extent that those people require the
assistance of a public conservator, California's public
conservators are already obligated to help them.
Furthermore, after a conservatee is transferred to California,
that person would be a California citizen, with a California
conservatorship. The conservatee would be entitled to whatever
benefits are accorded to citizens, including any right to have a
public conservator appointed for his or her protection, if
necessary. The state is obligated to provide equal protection
to all of its citizens and the CCJA must be consistent with that
principle.
It is possible, however, that a private conservator might
petition for a transfer to California, but be unable to continue
serving as conservator after the transfer, and be unable to
identify someone else who would be willing and eligible to serve
in California. This scenario should be very rare. If a private
conservator merely wishes to escape the burdens of the
conservatorship, that could be achieved with less expense by
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staying in the home state. Private conservators have no
incentive to "dump."
Moreover, any transfer would need to be approved by the courts
of both the transferring state and California, with the
California court concurring that the conservatee has strong
enough ties to California to establish jurisdiction and the
transfer is not contrary to the conservatee's interest. It
seems very unlikely that a California court would assent to
dumping. As discussed in Comment 2, the court can also assess
fees and expenses against a party involved in unjustifiable
conduct leading to the court's consideration of the
conservatorship transfer.
However, if a conservatee's ties to California stem from the
conservatee's relationship with a conservator who is removed
(e.g., a relative who dies or is thrown in jail), that change in
circumstances may mean that jurisdiction is no longer
appropriate in California. If so, the conservatorship should be
relocated to a state where jurisdiction is appropriate, using
the proposed transfer process or by reestablishing the
conservatorship in the other state. The CCJA and existing law
already provide the means of achieving that result.
The CLRC notes that the proposed transfer process is meant to
help conservatees and their families, as well as the courts, by
providing a less burdensome means of moving a conservatorship
from one state to another. It is not meant to supersede or
preclude use of the existing conservatorship process, under
which a conservatorship may be established in California from
scratch when a conservatee relocates to California.
By establishing integral procedures between California and the
other state, this bill would maintain the goals of the UAGPPJA
to streamline and simplify a conservatorship between states
while maintaining California's autonomy in the determination of
transfer acceptance.
5. Registration and recognition of conservatorship orders from
other states
As part of the CCJA, this bill would establish registration
procedures in a California court for the recognition of
conservatorship orders issued in another state. (See Prop.
Prob. Code Secs. 2011-2017.) The need for this provision is
evident when a person appointed to assist an individual with
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limited capacity has to take action (i.e., obtaining medical
care for the individual or selling/maintaining the individual's
property) in a state other than the state in which the
appointment was made. The CCJA would facilitate enforcement of
a court appointment made in another state by authorizing the
court appointee to register the appointment in California and
exercise all of the power authorized in the order of
appointment, except as prohibited by California law.
In order to address concern raised by the Trusts & Estates
Executive Committee of the State Bar of California (TEXCOM) and
the California Judges Association (CJA) that the registration
procedures should provide interested parties with the ability to
object to the California registration, the CLRC modified the
UAGPPJA by expanding the registration notice requirements, which
would alert interested persons that the conservatorship was
being registered in California in preparation for the
conservator to take action in California.
The CLRC notes that if someone receiving the notice had concerns
about what a conservator would do in California, that person
could either (1) challenge the conservator's proposed action
(not the conservatorship registration, but the specific action
that the conservator is proposing to take) directly in a
California court, or (2) challenge the conservatorship
registration in the out-of-state court supervising the
conservatorship, which would be more familiar with the parties
and the relevant circumstances than a California court. (See
the Commission's Comments to proposed Prob. Code Secs.
2011-2013, Cal. Law Rev. Comm., Recommendation, Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act (Dec.
2013)
[as
of Mar. 25, 2014], at p. 213.) Furthermore, the CLRC states
that it would be undesirable to permit a person to challenge the
conservatorship registration itself in a California court
because the merits of such a challenge would be difficult for
the California court to evaluate without any context or
specificity.
TEXCOM, in support if amended, continues to assert that an
amendment is needed to add, to the required notices in proposed
Probate Code Sections 2011, 2012, and 2013, an advisement of how
someone may present an objection to the proposed registration.
The CLRC asserts that permitting a person to challenge the
conservatorship registration itself in a California court would
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present an opportunity for unwarranted obstruction by an
uncooperative family member or other person entitled to notice.
Responding to such a challenge would be burdensome on the
conservator, the court system, and others involved in the
conservatorship situation.
During the CLRC's public review process, TEXCOM and CJA also
raised concern about the need to place a time limit on a
conservatorship registration in certain cases. TEXCOM has
requested an amendment to include a provision that the
registration shall terminate 120 days after the registration, or
when the conservatee becomes a resident of California, whichever
is earlier, provided that the court may for good cause order
that the time for the termination of the registration be
extended. The CLRC has rejected this idea because:
The time limit would add complexity to the registration
process and potentially increase the likelihood of ambiguities
and disputes, such as disputes over whether a registration was
timely renewed and whether an act occurred while a
registration was effective or only after a registration
expired.
Registration for a period longer than 120 days might often be
necessary, such as when an out-of-state conservator must
repeatedly deal with a creditor or debtor located in
California. Under the TEXCOM proposal, a 120-day time limit
could only be extended with court approval. The requirement
of seeking court approval would be burdensome on conservators,
conservatees, and the court system.
Under the CLRC's recommendation, a conservatorship
registration would already be rendered ineffective if the
conservatee becomes a California resident. There does not
seem to be any need to render the registration doubly
ineffective by imposing a time limit.
Although TEXCOM warns that a conservatorship registration
might be used "as a long term substitute for complying with
California's conservatorship laws," that concern is misplaced
and is not a valid justification for imposing a time limit.
Under the CCJA registration process, the conservator of a
registered conservatorship cannot do anything that is
prohibited under the law of the state of registration.
Title companies and other parties relying on registration
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documents might be leery of having to closely monitor for the
expiration of a time limit.
(See Cal. Law Rev. Comm, Second Supplement to Memorandum 2013-44
Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act (Comments on Tentative Recommendation) (Oct. 7,
2013), at p. 13.)
Staff notes that the purpose of enacting the CCJA is to
streamline multi-state conservatorship processes, and,
particularly with the registration process, minimize the burden
on California courts. As such, incorporating TEXCOM's proposed
amendments would inhibit the court's ability to expedite the
registration and may complicate the conservator's ability to
take appropriate action in protecting the conservatee's
wellbeing and property.
6. Federally recognized Indian tribes
This bill would provide that a federally recognized Indian
tribe, or any insular possession subject to the jurisdiction of
the United States, would be considered a "state" under the CCJA.
(Prop. Prob. Code Sec. 1982(m).) Accordingly, provisions
applying to "states" and the corresponding jurisdiction,
transfer, and registration procedures would authorize a
conservator of a member of an Indian tribe to transfer or
register a California state court conservatorship to or from a
federally recognized Indian tribe, inside or outside of
California.
However, this bill would exempt from the general jurisdictional
provisions under the CCJA an Indian tribe with jurisdiction,
meaning a federally recognized Indian tribe that has a court
system that exercises jurisdiction over proceedings that are
substantially equivalent to conservatorship proceedings. (Prop.
Prob. Code Sec. 2032.) In place of the general jurisdictional
provisions, this bill would provide permissive deference to
tribal court jurisdiction by authorizing (but not requiring) the
state court to dismiss a petition for the appointment of a
conservator of a proposed conservatee who is a member of an
Indian tribe with jurisdiction. (Prop. Prob. Code Sec. 2033.)
The reasoning behind the general jurisdiction exemption is
discussed in the CLRC Memorandum 2013-55. (See Cal. Law Rev.
Comm., Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act: Tribal Issues (Nov. 15, 2013); Cal. Law Rev.
Comm., First Supplement to Memorandum 2013-55 Uniform Adult
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Guardianship and Protective Proceedings Jurisdiction Act:
Tribal Issues (Dec. 11, 2013).) This Memorandum notes that a
tribal court and state court could share concurrent jurisdiction
over a proposed conservatee. A tribal court has jurisdiction on
tribal land and has some jurisdiction over tribe members living
outside tribal land. A state court has nonregulatory civil
jurisdiction over matters arising on tribal land (pursuant to
Public Law 280) and civil jurisdiction over tribe members who
reside in California but outside of tribal land. Further, it is
unclear whether some aspects of a state appointed
conservatorship could contain regulatory elements (such as the
existing requirement that a conservator obtain court approval
before placing a conservatee with dementia in a locked facility
or administering certain medications to a conservatee with
dementia).
Accordingly, the CLRC, with support from the Judicial Council of
California's Probate and Mental Health Advisory Committee and
the California Tribal Court/State Court Forum, recommended
separate permissive jurisdictional provisions for an Indian
tribe with jurisdiction. This deference, which includes similar
considerations for the court in determining the appropriate
forum for the conservatorship, would allow a California court to
consider whether an in-state or an out-of-state tribal court
would be the most appropriate forum and avoid complicated issues
regarding the tribal court and state court concurrent
jurisdiction.
Support : AARP; Alzheimer's Association; National Senior
Citizens Law Center
Opposition : None Known
HISTORY
Source : California Law Revision Commission
Related Pending Legislation : None Known
Prior Legislation : ACR 49 (Evans, Res. Ch. 98, Stats. 2009) See
Background.
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