BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair SB 940 (Jackson) - California Conservatorship Jurisdiction Act. Amended: March 10, 2014 Policy Vote: Judiciary 7-0 Urgency: No Mandate: No Hearing Date: April 28, 2014 Consultant: Jolie Onodera This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 940 would establish the California Conservatorship Jurisdiction Act (CCJA), effective January 1, 2016, which would provide jurisdictional and procedural guidance on conservatorship proceedings between California and other states, as specified. Fiscal Impact: Potentially significant ongoing costs (General Fund*) for court investigator duties related to conservatorships mandated by the CCJA and currently unfunded under existing processes imposed by the Omnibus Conservator and Guardianship Reform Act of 2006. One-time minor costs of less than $50,000 (General Fund*) to the Judicial Council to create forms and develop rules of court to implement the CCJA. Likely significant future cost savings (General Fund*) to the courts through operational efficiencies created by streamlining the conservator transfer process, facilitating enforcement of out-of-state conservatorship orders through registration, and reducing potential jurisdictional disputes through the establishment of clear guidelines. *Trial Court Trust Fund Background: In 2011, pursuant to Assembly Concurrent Resolution 49 (Evans) Res. Chapter 98/2009, the California Law Revision Commission (CLRC) began studying the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) for potential adoption by California. In its December 2013 report of recommendations to the Legislature, the CLRC stated: In California, a conservatorship is a proceeding in which a court appoints someone to assist an adult with personal care or financial transactions because that SB 940 (Jackson) Page 1 adult lacks the ability to handle those matters without assistance. These types of court proceedings are becoming common across the United States, because the population of the country is aging. At the same time, the population is highly mobile. Individuals frequently 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, a number of problems relating to conservatorships are occurring: jurisdictional disputes; issues relating to transferring a conservatorship from one state to another; requests for recognition of a conservatorship that was established in another state. The UAGPPJA was approved by the Uniform Law Commission in 2007 to address these problems. It provides a set of rules for resolving jurisdictional disputes, a streamlined process for transfer of a conservatorship, and a registration procedure to facilitate recognition of a conservatorship that was established in another state. The goal of the act is to alleviate the burdens of handling a conservatorship situation that involves more than one state. A large majority of states have enacted UAGPPJA, including all three of California's neighbors (Arizona, Oregon, and Nevada). California has not yet done so, however, because the uniform act uses different terminology than California and requires some adjustments to be workable in California. The Law Revision Commission studied UAGPPJA to determine whether and, if so, in what form, the act should be enacted in California. After conducting extensive research and analysis, and receiving input from a broad range of stakeholders, the Commission recommends that UAGPPJA be enacted in California, with a number of modifications to protect California policies and ensure that the act works smoothly in this state. This bill seeks to implement the final version of the UAGPPJA recommended by the CLRC through the establishment of the California Conservatorship Jurisdiction Act. Proposed Law: This bill would enact the CCJA, to become operative on January 1, 2016. Authority for the Judicial Council to develop court rules and forms as necessary for the SB 940 (Jackson) Page 2 implementation of the CCJA would be effective January 1, 2015. The significant provisions of the CCJA are summarized as follows: Jurisdictional procedures Establishes specific provisions to assist state courts determine appropriate jurisdiction for proposed conservatees. Jurisdiction would be determined through a three-tier hierarchy: home state, significant-connection state, and neither home state nor significant-connection state. 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 specified criteria, including but not limited to 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. CCJA would not apply to proceedings involving minors, persons involuntarily committed to a mental health facility or involuntary mental health care, and would provide express limitations on its application to a conservatee with dementia. Transfer of conservatorships to other states Provides 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. The CCJA would only permit a transfer between California and another "state," as defined, that has enacted the transfer procedure of the UAGPPJA. Creates a conservatorship transfer process that is an integrated procedure, requiring issuance of four court orders, as specified. As the bill requires action in both SB 940 (Jackson) Page 3 the transferring state and the accepting state, the transfer process cannot be completed unless both states have enacted the UAGPPJA transfer procedure. 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). Provides a California court the ability to deny a conservatorship that could be another state's attempt to "dump" a conservatorship. Precludes 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. Does 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. After a conservatee is transferred to California, that person would be a California citizen, with a California conservatorship. Transfers of conservatorships 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. Registration and recognition of conservatorship orders from other states Authorizes courts to charge a fee of $30 for the registration of a conservatorship established pursuant to the CCJA. Fees collected to be distributed to the Trial Court Trust Fund, as specified. At least 15 days before registering a conservatorship in this state, would require the conservator to provide notice of intent to register to specified parties. Treatment of federally recognized Indian tribes Provides that the CCJA jurisdictional provisions would not apply to a proposed conservatee who is a member of an Indian tribe with jurisdiction. Provides for various definitions regarding federally recognized Indian tribes. SB 940 (Jackson) Page 4 Prohibits the court from dismissing a petition if the tribal court expressly declines to exercise its jurisdiction with regard to the proposed conservatee. Prior Legislation: ACR 49 (Evans) Res. Chapter 98/2009 required the CLRC to study the UAGPPJA for potential adoption by California. AB 1363 (Jones) Chapter 493/2006 established the Omnibus Conservatorship and Guardianship Reform Act of 2006, which significantly restructured the courts' review of conservatorships and imposed new duties on court investigators. Staff Comments: The CCJA seeks to provide guidance to reduce jurisdictional disputes, establish a streamlined process for the transfer of conservatorships from one state to another, and facilitate enforcement of out-of-state conservatorship orders through a registration process. To the extent these goals are realized would serve to create significant court efficiencies and result in significant cost savings not only to the courts in state costs, but to conservators, conservatees, and others affected by the conservatorship process. The Judicial Council has indicated one-time minor costs to develop the rules of court and forms necessary to implement the CCJA. The Omnibus Conservatorship and Guardianship Reform Act of 2006 (the Act) significantly restructured the state's conservatorship and guardianship system by increasing the frequency of courts' review of conservatorships and imposing new duties on court investigators. At the time, the Judicial Council estimated significant costs to meet the mandates of the Act. Specifically, the additional workload to perform new court investigator duties was estimated to cost several million dollars annually. Subsequently, in response to the severe budget reductions imposed on the court system, SB 78 (Committee on Budget) Chapter 10/2011, the Public Safety budget trailer bill, amended the Act to provide that superior courts were not required to perform the duties required in the Act, including but not limited to the additional duties placed on court investigators, unless an appropriation is provided by the Legislature that is identified for this purpose. The Judicial Council has indicated that no appropriation has been provided to date. This bill imposes various duties on court investigators within SB 940 (Jackson) Page 5 the conservatorship transfer process of the CCJA. These are many of the same duties currently required under the Act that are conditional upon funding being provided. While Section 1851.1(g) of this bill provides for workload relief to courts for specified court investigator duties, there are additional court investigator duties that are not similarly covered. In order to ensure the provisions of this bill do not impose an unfunded mandate on the courts, all applicable provisions of the Act that contain operative language conditional on funding should be similarly referenced in this bill. Recommended Amendments: To remove the potentially significant unfunded mandate on the courts and ensure the provisions of this bill will only require the level of court investigator duties that courts were mandated to perform prior to the enactment of the Act, the following amendments are recommended: 1. On page 14, in line 34, strike and replace "Section 1826 or 1851" with "Sections 1826, 1850, 1851, 2250, 2253, and 2620 and the addition of Sections 2250.4 and 2250.6" 2. On page 14, in line 35, after the comma insert "and the addition of Section 1051 enacted by Chapter 492 of the Statutes of 2006," The following technical amendments are also recommended: 3. On page 9, in lines 31 and 32, strike and replace "1822, Section" with "1822 or" 4. On page 10, in line 2, strike and replace "Section 2002" with "2002" 5. On page 11, in line 21, strike and replace "Section 2002" with "2002" 6. On page 35, in line 8, strike and replace "both" with "all" 7. On page 39, in line 39, strike and replace "conservatee" with "conservator" 8. On page 42, between lines 15 and 16, insert: SEC. 28 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. SB 940 (Jackson) Page 6