BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 929|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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THIRD READING
Bill No: SB 929
Author: Vidak (R)
Amended: 4/7/16
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 4/26/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
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 other period
of time as the court for good cause orders, to petition the
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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 guardian or conservator to provide to
interested parties, as specified, notice of the hearing on
the petition for compensation.
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
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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 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.
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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:
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 are 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 are 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.
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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 are 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
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 up 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 is identical to SB 269 (Vidak, 2015), which was gutted
and amended in the Assembly, under a new author (Roth), to
provide relief to small businesses with respect to
construction-related accessibility litigation and to encourage
compliance with construction-related accessibility standards.
This bill authorizes a person, who successfully petitions for
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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]
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.
[This bill] 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.
Related/Prior Legislation
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SB 269 (Roth, 2015) See Background.
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. The bill 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
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
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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: (Verified4/28/16)
Conference of California Bar Associations (source)
OPPOSITION: (Verified4/28/16)
California Advocates for Nursing Home Reform
ARGUMENTS IN SUPPORT: The Conference of California Bar
Associations (CCBA) argues that allowing a person who
unsuccessfully petitions to have a third party appointed as
conservator in a contested proceeding to receive reimbursement
for costs and attorney's fees, but denying the same possibility
to a person whose petition is successful, is nonsensical and
unfair. CCBA contends that the absence of specific authority for
a successful petitioner to be reimbursed for expenses and
attorney's fees may discourage family members and other
interested parties of limited means from seeking the best
possible conservator for their loved ones. CCBA asserts that
California should be encouraging people to seek appointment of
the most qualified and capable conservators possible for their
loved ones, and this bill removes an unnecessary and illogical
impediment to this process.
ARGUMENTS IN OPPOSITION: California Advocates for Nursing
Home Reform (CANHR) argues that this bill "would eliminate one
of the very few remaining financial disincentives for filing for
conservatorship in California. The bill permits compensation to
third parties who neither want nor will take a role in the
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conservatorship. Such an arrangement could create a market for
conservatorship 'head hunters.' The headhunters would actively
search for older and disabled folks who arguably meet the
criteria for conservatorship and then broker deals to file the
petition on behalf of a family member, friend, or professional
fiduciary, and get paid for their time. This would add yet
another person into the conservatorship system the conservatee
will have to pay for - without their consent. At some point, we
need to say enough is enough. SB 929 adds further deprivation
to conservatees in California. We are troubled by the bill's
provision that would give third party petitioners a financial
incentive to seek conservatorships with little regard to whether
the conservatorship will be granted."
Prepared by:Tara Welch / JUD. / (916) 651-4113
4/29/16 12:39:22
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