BILL ANALYSIS                                                                                                                                                                                                    




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          |SENATE RULES COMMITTEE            |                        SB 269|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
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                                   THIRD READING 


          Bill No:  SB 269
          Author:   Vidak (R)
          Amended:  4/6/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  6-0, 4/14/15
           AYES:  Jackson, Vidak, Anderson, Leno, Monning, Wieckowski
           NO VOTE RECORDED:  Hertzberg

           SUBJECT:   Conservator appointments:  compensation


          SOURCE:    Conference of California Bar Associations


          DIGEST:  This bill authorizes a person, who has successfully  
          petitioned for the appointment of a third-party conservator, and  
          the person's attorney, to petition the court for an order fixing  
          and allowing compensation for services rendered and  
          reimbursement for costs incurred in connection with the  
          appointment of the conservator.  This bill provides that any  
          compensation and costs shall be charged to the conservatee's  
          estate.


          ANALYSIS:   


          Existing law:


            1)  Permits the guardian or conservator of the estate, at any  
              time after the filing of the inventory and appraisal of the  
              ward's or conservatee's estate, but not before the  
              expiration of 90 days from the issuance of letters or any  








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              other period of time as the court for good cause orders, to  
              petition the court for an order fixing and allowing  
              compensation to, among others, the guardian or conservator  
              of the estate or person, or both, and the guardian's or  
              conservator's attorney.

            2)  Requires the petition for compensation to be noticed to  
              interested parties, as specified.

            3)  Authorizes the court, upon the hearing, to make an order  
              allowing:  (a) any compensation requested in the petition  
              the court determines is just and reasonable to the guardian  
              or conservator of the estate for services rendered or to the  
              guardian or conservator of the person for services rendered,  
              or to both; and (b) any compensation requested in the  
              petition the court determines is reasonable to the attorney  
              for services rendered to the guardian or conservator of the  
              person or estate or both.
            
             4)  Provides that the compensation allowed to the guardian or  
              conservator of the person, the guardian or conservator of  
              the estate, and to the attorney may, in the discretion of  
              the court, include compensation for services rendered before  
              the date of the order appointing the guardian or  
              conservator, and the compensation allowed is charged against  
              the guardian's or conservatee's estate.

            5)  Prohibits the guardian or conservator from being  
              compensated from the estate for any costs or fees that the  
              guardian or conservator incurred in unsuccessfully opposing  
              a petition, or other request or action, made by or on behalf  
              of the ward or conservatee, unless the court determines that  
              the opposition was made in good faith, based on the best  
              interests of the ward or conservatee.

            6)  Authorizes a person who has petitioned for the appointment  
              of a particular conservator and another conservator was  
              appointed while the petition was pending, but not before the  
              expiration of 90 days from the issuance of letters, the  
              person who petitioned for the appointment of a conservator  
              but was not appointed and that person's attorney may  
              petition the court for an order fixing and allowing  








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              compensation and reimbursement of costs, provided that the  
              court determines that the petition was filed in the best  
              interests of the conservatee.

            7)  Authorizes a guardian or conservator of the person to  
              petition the court for an order fixing and allowing  
              compensation for services rendered to that time.

            8)  Authorizes the court, upon a hearing and after determining  
              that a guardian's or conservator's petition for compensation  
              is just and reasonable, to award to the guardian or  
              conservator of the person fees and costs for services  
              rendered.

            9)  Authorizes, in the discretion of the court, for the  
              guardian or conservator of the person to receive  
              compensation for services rendered before the date of the  
              order appointing the guardian or conservator, and provides  
              that compensation is charged against the guardian's or  
              conservatee's estate.

            10) Prohibits compensation from the estate to the guardian or  
              conservator for any costs or fees that the guardian or  
              conservator incurred in unsuccessfully opposing a petition,  
              or other request or action, made by or on behalf of the ward  
              or conservatee, unless the court determines that the  
              opposition was made in good faith, based on the best  
              interests of the ward or conservatee.

            11) Authorizes an attorney who has rendered legal services to  
              the guardian or conservator of the person or estate or both  
              to petition the court for an order fixing and allowing  
              compensation for such services rendered to that time.

            12) Requires the court, upon the hearing, to make an order  
              allowing such compensation as the court determines  
              reasonable to the attorney for services rendered to the  
              guardian or conservator, and the compensation is required to  
              be charged against the ward's or conservatee's estate.
           
           This bill:









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            1)  Provides that when a conservator nominated by a third  
              party is appointed by the court, but not before the  
              expiration of 90 days from the issuance of letters, the  
              person who has petitioned for the appointment of that  
              conservator and that person's attorney may petition the  
              court for an order fixing and allowing compensation and  
              reimbursement of costs.

            2)  Requires notice of the time and place of the hearing to be  
              given, as specified, at least 15 days before the day of the  
              hearing.

            3)  Requires the court to make an order to allow both of the  
              following:

                   any compensation or costs requested in the petition  
                the court determines is just and reasonable to the person  
                who petitioned for the appointment of a conservator for  
                the person's services rendered in connection with and to  
                facilitate the appointment of the conservator, and costs  
                incurred in connection therewith; and

                   any compensation or costs requested in the petition  
                the court determines is just and reasonable to the  
                attorney for that person, for the attorney's services  
                rendered in connection with and to facilitate the  
                appointment of the conservator, and costs incurred in  
                connection therewith.
            
             1)  Requires any compensation and costs allowed to be charged  
              to the conservatee's estate. 

            2)  Provides that if a conservator of the estate is not  
              appointed, but a conservator of the person is appointed, the  
              compensation and costs allowed is to be ordered by the court  
              to be paid from property belonging to the conservatee,  
              whether held outright, in trust, or otherwise.

          Background


          In California, if an adult is unable to manage his or her  








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          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).

          After the guardian or conservator has been appointed, the  
          guardian or conservator of the estate or person, and his or her  
          attorney, may petition the court for an order fixing and  
          allowing compensation for services rendered to that time, which  
          may include compensation for services rendered before the date  
          of the order appointing the guardian or conservator.  Further, a  
          person, who unsuccessfully petitioned for the appointment of a  
          conservator because a different conservator was appointed, may  
          petition the court for an order fixing and allowing compensation  
          and reimbursement of the person's costs in filing the petition  
          for conservator.  In that case, the court must find that the  
          petition was brought in the best interests of the conservatee,  
          and the compensation and fees awarded are charged to the ward's  
          or conservatee's estate.

          This bill also authorizes a person, who successfully petitions  
          for the appointment of a third-party conservator, and the  
          person's attorney, to petition the court for payment of the fees  
          and costs incurred in filing the petition for conservator.

          Comments

          The author writes:
          
             Current law provides a hierarchical preference to certain  
             individuals to become the conservator, which begin with the  
             spouse and then works down through adult children, parents,  
             and siblings.  Individuals can also petition the court for  
             the appointment of another conservator if they feel that  
             another individual should act as the conservator.

             Probate Code [Section] 2640 only authorizes reimbursement  
             from the estate of the compensation, costs and attorney's  
             fees of a successful petitioner, on their own behalf, for  
             appointment as estate conservator.  Probate Code [Section]  








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             2640.1 allows for the allowance of such compensation, costs,  
             and fees to an unsuccessful petitioner for appointment as  
             conservator.

             But there is no provision allowing for compensation, costs,  
             and fees for a successful petitioner for the appointment of a  
             third person to act as the conservator.  Without this  
             authority for reimbursement of fees, family members and other  
             interested parties may be discouraged, because of their own  
             limited means, from petitioning to have a suitable  
             conservator appointed.

             SB 269 allows interested parties who are successful in their  
             petition for appointment of another, more appropriate person  
             as conservator, to recover compensation, reimbursement of  
             attorneys' fees and other costs incurred in connection with  
             that petition.

          Prior Legislation


          AB 1363 (Jones, Chapter 493, Statutes of 2006), the Omnibus  
          Conservatorship and Guardianship Reform Act of 2006, among other  
          things, required that a person, whose petition for appointment  
          of a conservator is unsuccessful because a different conservator  
          was appointed, and who petitions the court for an award of  
          compensation of fees and costs associated with the  
          conservatorship petition, must also prove that the unsuccessful  
          petition to appoint a conservator was filed in the best  
          interests of the conservatee.  AB 1363 also prohibited the  
          guardian or conservator of the estate from being compensated  
          from the estate for any costs or fees that the guardian or  
          conservator incurred in unsuccessfully opposing a petition, or  
          other request or action, made by or on behalf of the ward or  
          conservatee, unless the court determines that the opposition was  
          made in good faith, based on the best interests of the ward or  
          conservatee.

          AB 2801 (Committee on Judiciary, Chapter 581, Statutes of 1998)  
          authorized the court, at any other period of time, other than  
          after the filing of an inventory and appraisal not filed before  
          the expiration of 90 days from the issuance of letters, and as  








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          the court for good cause orders, to issue an order fixing and  
          allowing compensation to the guardian or conservator of the  
          estate.

          AB 1466 (Kaloogian, Chapter 730, Statutes of 1995) authorized a  
          person, whose petition for appointment of a conservator was  
          unsuccessful because a different conservator was appointed, to  
          receive compensation and reimbursement for costs incurred in the  
          conservatorship proceeding.

          SB 1455 (Mello, Chapter 572, Statutes of 1992), among other  
          things, extended the ability of a guardian or conservator of the  
          estate or person to file a petition for an order fixing and  
          allowing compensation, in the discretion of the court, for  
          services rendered before the date of the order appointing the  
          guardian or conservator.

          AB 759 (Friedman, Chapter 79, Statutes of 1990) revised and  
          recast the Probate Code and, among other things, authorized a  
          guardian or conservator of a person or estate, and his or her  
          attorney, to file a petition for an order fixing and allowing  
          compensation for services rendered to that time.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified4/15/15)


          Conference of California Bar Associations (source)

          OPPOSITION:   (Verified4/15/15)

          None received


          Prepared by:Tara Welch / JUD. / (916) 651-4113
          4/17/15 14:26:29


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