BILL NUMBER: AB 239 CHAPTERED 07/26/99 CHAPTER 175 FILED WITH SECRETARY OF STATE JULY 26, 1999 APPROVED BY GOVERNOR JULY 26, 1999 PASSED THE ASSEMBLY JULY 15, 1999 PASSED THE SENATE JULY 8, 1999 AMENDED IN SENATE JULY 2, 1999 INTRODUCED BY Assembly Member Kaloogian JANUARY 28, 1999 An act to amend Sections 2357, 2580, and 17200 of, to add Part 18 (commencing with Section 825) to Division 2 of, and to repeal Section 7200 of, the Probate Code, relating to estates and trusts. LEGISLATIVE COUNSEL'S DIGEST AB 239, Kaloogian. Estates and trusts. (1) Existing case law provides that a right to jury trial in a civil matter exists only where that right existed at common law; jury trials in probate proceedings were unknown to common law. Existing statutory law specifies that there is no right to a jury trial in proceedings under the Probate Code concerning the administration of a decedent's estate, except as otherwise expressly provided in the Probate Code. This bill would revise existing statutory law to specify that there is no right to a jury trial in proceedings under the Probate Code, except as otherwise expressly provided in the Probate Code. (2) Existing law requires a petition for court authorization of specified medical treatment for a ward or conservatee to include specified information. Existing law requires the court, upon the filing of the petition, to notify the attorney of record for the ward or conservatee or appoint the public defender or private counsel to consult with and represent the ward or conservatee. It also authorizes a hearing on the petition to be held pursuant to an order of the court prescribing the notice to be given. This bill would specify additional information to be included in the petition, and would revise the notice requirements, as specified. (3) Under existing law, a court may authorize or require a conservator to take a proposed action for specified purposes, including the exercise or surrender of the right of the conservatee to revoke a revocable trust under specified conditions. This bill would include within these purposes, the exercise or surrender of the right of the conservatee to modify a revocable trust under specified conditions. (4) Under existing law, a trust instrument may by amended in order to qualify a decedent's estate for the charitable estate tax deduction under federal law in any case in which all parties interested in the trust have submitted written agreement to the proposed changes or written disclaimer of interest. This bill would delete the written agreement or disclaimer requirement. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Part 18 (commencing with Section 825) is added to Division 2 of the Probate Code, to read: PART 18. RIGHT TO TRIAL 825. Except as otherwise expressly provided in this code, there is no right to a jury trial in proceedings under this code. SEC. 2. Section 2357 of the Probate Code is amended to read: 2357. (a) As used in this section: (1) "Guardian or conservator" includes a temporary guardian of the person or a temporary conservator of the person. (2) "Ward or conservatee" includes a person for whom a temporary guardian of the person or temporary conservator of the person has been appointed. (b) If the ward or conservatee requires medical treatment for an existing or continuing medical condition which is not authorized to be performed upon the ward or conservatee under Section 2252, 2353, 2354, or 2355, and the ward or conservatee is unable to give an informed consent to such medical treatment, the guardian or conservator may petition the court under this section for an order authorizing such medical treatment and authorizing the guardian or conservator to consent on behalf of the ward or conservatee to such medical treatment. (c) The petition shall state, or set forth by medical affidavit attached thereto, all of the following so far as is known to the petitioner at the time the petition is filed: (1) The nature of the medical condition of the ward or conservatee which requires treatment. (2) The recommended course of medical treatment which is considered to be medically appropriate. (3) The threat to the health of the ward or conservatee if authorization to consent to the recommended course of treatment is delayed or denied by the court. (4) The predictable or probable outcome of the recommended course of treatment. (5) The medically available alternatives, if any, to the course of treatment recommended. (6) The efforts made to obtain an informed consent from the ward or conservatee. (7) The name and addresses, so far as they are known to the petitioner, of the persons specified in subdivision (c) of Section 1510 in a guardianship proceeding or subdivision (b) of Section 1821 in a conservatorship proceeding. (d) Upon the filing of the petition, unless an attorney is already appointed the court shall appoint the public defender or private counsel under Section 1471, to consult with and represent the ward or conservatee at the hearing on the petition and, if that appointment is made, Section 1472 applies. (e) Notice of the Petition shall be given as follows: (1) Not less than 15 days before the hearing, notice of the time and place of the hearing, and a copy of the petition shall be personally served on the ward, if 12 years of age or older, or the conservatee, and on the attorney for the ward or conservatee. (2) Not less than 15 days before the hearing, notice of the time and place of the hearing, and a copy of the petition shall be mailed to the following persons: (A) The spouse, if any, of the proposed conservatee at the address stated in the petition. (B) The relatives named in the petition at their addresses stated in the petition. (f) For good cause, the court may shorten or waive notice of the hearing as provided by this section. In determining the period of notice to be required, the court shall take to account both of the following: (1) The existing medical facts and circumstances set forth in the petition or in a medical affidavit attached to the petition or in a medical affidavit presented to the court. (2) The desirability, where the condition of the ward or conservatee permits, of giving adequate notice to all interested persons. (g) Notwithstanding subdivisions (e) and (f), the matter may be submitted for the determination of the court upon proper and sufficient medical affidavits or declarations if the attorney for the petitioner and the attorney for the ward or conservatee so stipulate and further stipulate that there remains no issue of fact to be determined. (h) The court may make an order authorizing the recommended course of medical treatment of the ward or conservatee and authorizing the guardian or conservator to consent on behalf of the ward or conservatee to the recommended course of medical treatment for the ward or conservatee if the court determines from the evidence all of the following: (1) The existing or continuing medical condition of the ward or conservatee requires the recommended course of medical treatment. (2) If untreated, there is a probability that the condition will become life-endangering or result in a serious threat to the physical or mental health of the ward or conservatee. (3) The ward or conservatee is unable to give an informed consent to the recommended course of treatment. (i) Upon petition of the ward or conservatee or other interested person, the court may order that the guardian or conservator obtain or consent to, or obtain and consent to, specified medical treatment to be performed upon the ward or conservatee. Notice of the hearing on the petition under this subdivision shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1. SEC. 3. Section 2580 of the Probate Code is amended to read: 2580. (a) The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes: (1) Benefiting the conservatee or the estate. (2) Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee. (3) Providing gifts for any purposes, and to any charities, relatives (including the other spouse), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee. (b) The action proposed in the petition may include, but is not limited to, the following: (1) Making gifts of principal or income, or both, of the estate, outright or in trust. (2) Conveying or releasing the conservatee's contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety. (3) Exercising or releasing the conservatee's powers as donee of a power of appointment. (4) Entering into contracts. (5) Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatee's disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article. (6) Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust. (7) Exercising options of the conservatee to purchase or exchange securities or other property. (8) Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following: (i) Life insurance policies, plans, or benefits. (ii) Annuity policies, plans, or benefits. (iii) Mutual fund and other dividend investment plans. (iv) Retirement, profit-sharing, and employee welfare plans and benefits. (9) Exercising the right of the conservatee to elect to take under or against a will. (10) Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2. (11) Exercising the right of the conservatee (i) to revoke or modify a revocable trust or (ii) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (i) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (ii) provides expressly that a conservator may not revoke or modify the trust, or (iii) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust. (12) Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503. (13) Making a will. SEC. 4. Section 7200 of the Probate Code is repealed. SEC. 5. Section 17200 of the Probate Code is amended to read: 17200. (a) Except as provided in Section 15800, a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust. (b) Proceedings concerning the internal affairs of a trust include, but are not limited to, proceedings for any of the following purposes: (1) Determining questions of construction of a trust instrument. (2) Determining the existence or nonexistence of any immunity, power, privilege, duty, or right. (3) Determining the validity of a trust provision. (4) Ascertaining beneficiaries and determining to whom property shall pass or be delivered upon final or partial termination of the trust, to the extent the determination is not made by the trust instrument. (5) Settling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers. (6) Instructing the trustee. (7) Compelling the trustee to report information about the trust or account to the beneficiary, if (A) the trustee has failed to submit a requested report or account within 60 days after written request of the beneficiary and (B) no report or account has been made within six months preceding the request. (8) Granting powers to the trustee. (9) Fixing or allowing payment of the trustee's compensation or reviewing the reasonableness of the trustee's compensation. (10) Appointing or removing a trustee. (11) Accepting the resignation of a trustee. (12) Compelling redress of a breach of the trust by any available remedy. (13) Approving or directing the modification or termination of the trust. (14) Approving or directing the combination or division of trusts. (15) Amending or conforming the trust instrument in the manner required to qualify a decedent's estate for the charitable estate tax deduction under federal law, including the addition of mandatory governing instrument requirements for a charitable remainder trust as required by final regulations and rulings of the United States Internal Revenue Service. (16) Authorizing or directing transfer of a trust or trust property to or from another jurisdiction. (17) Directing transfer of a testamentary trust subject to continuing court jurisdiction from one county to another. (18) Approving removal of a testamentary trust from continuing court jurisdiction. (19) Reforming or excusing compliance with the governing instrument of an organization pursuant to Section 16105. (20) Determining the liability of the trust for any debts of a deceased settlor. However, nothing in this paragraph shall provide standing to bring an action concerning the internal affairs of the trust to a person whose only claim to the assets of the decedent is as a creditor. (21) Determining petitions filed pursuant to Section 15687 and reviewing the reasonableness of compensation for legal services authorized under that section. In determining the reasonableness of compensation under this paragraph, the court may consider, together with all other relevant circumstances, whether prior approval was obtained pursuant to Section 15687. (22) If a member of the State Bar of California has transferred the economic interest of his or her practice to a trustee and if the member is a deceased member under Section 9764, a petition may be brought to appoint a practice administrator. The procedures, including, but not limited to, notice requirements, that apply to the appointment of a practice administrator for a deceased member shall apply to the petition brought under this section. (23) If a member of the State Bar of California has transferred the economic interest of his or her practice to a trustee and if the member is a disabled member under Section 2468, a petition may be brought to appoint a practice administrator. The procedures, including, but not limited to, notice requirements, that apply to the appointment of a practice administrator for a disabled member shall apply to the petition brought under this section.