BILL ANALYSIS Ó
SB 940
Page 1
SENATE THIRD READING
SB 940 (Jackson)
As Amended June 11, 2014
Majority vote
SENATE VOTE :35-0
JUDICIARY 9-0 APPROPRIATIONS 17-0
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|Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Bigelow, |
| |Alejo, Chau, Dickinson, | |Bocanegra, Bradford, Ian |
| |Garcia, Gorell, | |Calderon, Campos, |
| |Muratsuchi, Stone | |Donnelly, Eggman, Gomez, |
| | | |Holden, Jones, Linder, |
| | | |Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Lowenthal |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Provides, effective January 1, 2016, provisions for
interstate jurisdiction, transfer, and recognition of
conservatorships under the California Conservatorship
Jurisdiction Act (CCJA). Specifically, this bill , among other
things:
1)Provides that the CCJA does not apply to a proceeding
involving: a minor; a person subjected to involuntary mental
health treatment, such as a person conserved under the
Lanterman-Petris-Short Act; and an adult with a developmental
disability. Also provides specified, express limitations on
the application of the CCJA to a conservatee with dementia.
2)Provides that a California court has jurisdiction to appoint a
conservator for a proposed conservatee, as specified.
3)Provides that a California court that otherwise lacks
jurisdiction has special jurisdiction to take specified
actions.
4)Provides that a California court with 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
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appropriate forum.
5)Authorizes a California court to communicate with a court in
another state concerning a proceeding arising under the CCJA
and authorizes the court to allow parties to participate in
that communication.
6)After issuance of an order provisionally granting a petition
to transfer a conservatee from another state to California,
requires a court investigator to promptly commence an
investigation, as specified, and prepare a report. Requires a
court, in a proceeding to transfer a conservatorship, to
appoint legal counsel to represent the interests of a
conservatee who is unable to retain legal counsel and requests
appointment of counsel.
7)Provides 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, the court
shall presume that there is no need for a conservatorship.
Provides that the presumption is rebuttable and may be
overcome by clear and convincing evidence.
8)Establishes provisions for the transfer of a California
conservatorship to another state. Authorizes a conservator
appointed in California to petition the court to transfer the
conservatorship to another state. Requires the petitioner to
give notice of a hearing on the transfer petition to the
persons that would be entitled to notice of a conservatorship
hearing in California.
9)Requires the court to issue an order provisionally granting
the petition to transfer a conservatorship and to direct the
conservator 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 in the other
state and the court makes certain specific findings. To
confirm transfer of a conservatorship to California, requires
the conservator to petition the California court to accept the
conservatorship.
10)Requires the court to hold a hearing on a transfer petition
and issue an order provisionally granting the petition unless
the court determines that: a) transfer of the proceeding
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would be contrary to the interests of the conservatee; b)
under the law of the transferring state, the conservator is
ineligible for appointment in California; c) 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 d) the CCJA does not otherwise apply to the
conservatee.
11)If the court issues an order provisionally granting the
transfer petition, requires the investigator to promptly
commence an investigation, as specified. Requires 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.
12)Provides conservatorship registration requirements and
recognition of conservatorship orders from other states. When
the conservatee resides in California, prohibits a conservator
from exercising any powers pursuant to a CCJA registration.
Requires that the conservator must comply with California law.
Requires the conservator to provide notice of the
registration to a) the court supervising the conservatorship;
and b) every person entitled to notice of a petition for
appointment of a conservatorship in California and in the
state supervising the conservatorship, with specific notice
about how the conservator's actions may be challenged.
13)Provides 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 is contingent on whether the conservatee resides in
California.
14)Authorizes courts to charge $30 for the registration of a
conservatorship established pursuant to the CCJA. Allows
travel and other necessary and reasonable expenses incurred
under the CCJA to be assessed against the parties according to
California law.
15)Requires the Judicial Council, on or before January 1, 2016,
to develop court rules and forms necessary for the
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implementation of the CCJA.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)This bill should result in neither an increase or decrease in
the number of conservatorship proceedings in California, but
should better facilitate the process when conservatorships are
transferred to California jurisdiction, thus resulting in a
net reduction in court costs.
2)Costs for the Judicial Council to develop or modify rules of
courts will be minor and absorbable.
COMMENTS : 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.
Conservatorships are becoming more common across the United
States as the number of elderly with diminished capacity
increases. Additionally, with our mobile society, people often
move from one state to another, own property or conduct
transactions in more than one state, or spend time in different
locations throughout the year. As a result of 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.
To address these issues, the Uniform Law Commission proposed, in
2007, the Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act (UAGPPJA) for enactment in all states. (In
most other states, conservatorships are called guardianships.)
To resolve jurisdictional issues between guardianship courts of
multiple states and to facilitate cooperation between these
courts, the UAGPPJA has now been enacted in some form in 38
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states, as well as Puerto Rico and the District of Columbia.
In 2011, pursuant to authorization from ACR 49 (Evans),
Resolution Chapter 98, Statutes of 2009, the California Law
Revision Commission (CLRC) began studying the UAGPPJA for
potential adoption in California. The CLRC modified the UAGPPJA
provisions to fit California law, received public comment, and
revised those provisions to address the comments. (CLRC,
Recommendation: Uniform Adult Guardianship and Protective
Proceedings Jurisdiction Act (Dec. 2013).) This bill, effective
January 1, 2016, implements the final version of the UAGPPJA
recommended by the CLRC and establishes the CCJA.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0004322