AB 1194

Bill Subjects

Abstract

Existing law, the Guardianship-Conservatorship Law generally establishes the standards and procedures for the appointment and termination of an appointment for a guardian or conservator of a person, an estate, or both. Existing law, the Professional Fiduciaries Act, establishes the Professional Fiduciaries Bureau within the Department of Consumer Affairs, and requires the bureau to license and regulate professional fiduciaries. The act defines a "professional fiduciary" as, among other things, a person who acts as a guardian or conservator of the person, the estate, or the person and estate, for 2 or more individuals at the same time who are not related to the professional fiduciary or to each other. Existing law requires the court to be guided by what appears to be the best interests of the proposed conservatee in selecting a conservator, and sets forth an order of preference for appointment if there are multiple persons equally qualified to be the conservator. This bill would require a professional fiduciary with an internet website to post a schedule of the range of fees on their internet website and would require a professional fiduciary without an internet website to provide that schedule, as specified. The bill would require the bureau to impose specified sanctions on a professional fiduciary's license upon a finding of a violation of applicable statutes or regulations, a breach of fiduciary duty where there is a finding of serious financial or physical harm or mental suffering, or that the professional fiduciary has engaged in defined acts of abuse, as specified. If the court finds that a conservator who is a professional fiduciary has abused a conservatee, the bill would make the conservator liable for a civil penalty of up to $10,000 for each separate act of abuse, payable to the estate of the conservatee. The bill would make a conservator who is not a professional fiduciary who abuses a conservatee liable for civil penalties of up to $1,000 for each separate act of abuse, payable to the estate of the conservatee. This bill would require the bureau to investigate specified allegations and would authorize the bureau to impose upon a professional fiduciary, as a sanction for violation of their duties, a restitution order, as specified. The bill would require the bureau to revoke a professional fiduciary's license if the person knowingly, intentionally, or willfully violated a legal duty or breached a fiduciary duty to a client or if the person caused serious physical or financial harm or mental suffering to a client through gross negligence or gross incompetence. Existing law conditioned upon an appropriation by the Legislature a requirement that a court investigator undertake specified actions regarding a proposed conservatee, including interviewing the proposed conservatee. Existing law authorizes specified persons to petition the court to take specified actions regarding a conservatorship. This bill would, also contingent upon an appropriation, revise the information that a court investigator is required to gather and review and the determinations the investigator is required to make. The bill would authorize an interested person, as defined, with personal knowledge of a conservatee to petition the court to investigate an allegation of physical abuse or financial abuse of a conservatee by a conservator, and would require the court to investigate those allegations that establish a prima facie case of abuse. Existing law requires the court to appoint the public defender or private counsel to represent interests of a conservatee, proposed conservatee, or person alleged to lack legal capacity who is unable to retain legal counsel and requests the appointment of counsel to assist them in particular proceedings that include, among others, proceedings to establish a conservatorship or to remove the conservator, whether or not that person lacks or appears to lack legal capacity. The law also requires the court to appoint the public defender or private counsel in these proceedings to represent the interests of a conservatee or proposed conservatee who does not plan to retain legal counsel and has not requested the court to appoint legal counsel, if the court determines that the appointment would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee or proposed conservatee based on information contained in the court investigator's report or obtained from any other source, whether or not that person lacks or appears to lack legal capacity. This bill would, instead, require the court to appoint the public defender or private counsel if the conservatee or proposed conservatee has not retained legal counsel and does not plan to retain legal counsel. The bill would generally require the court to allow representation by an attorney for whom a conservatee, proposed conservatee, or person alleged to lack legal capacity expresses a preference, even if the attorney is not on the court's list of court-appointed attorneys, unless the counsel cannot provide zealous advocacy or has a conflict of interest. The bill would specify that the role of legal counsel for a conservatee, proposed conservatee, or person alleged to lack legal capacity is that of a zealous, independent advocate, observing specified legal requirements. Existing law prescribes the process for petitioning to terminate a conservatorship or limited conservatorship or to appoint a new conservator. Existing law specifies a process for hearings on the termination or revision of conservatorships and the review of conservatorships. This bill would, contingent upon an appropriation by the Legislature in many cases, make various changes to those processes. The bill would require that the court, at specified hearings, consider terminating the conservatorship and would authorize the court in specified circumstances to modify the conservatorship so that the conservatorship is the least restrictive alternative needed for the protection of the conservatee. Existing law prohibits a guardian or trustee who is not a trust company from hiring or referring business to an entity in which the guardian or trustee has a financial interest, except upon authorization of the court. Existing law prohibits compensating a guardian or trustee from the estate for the costs or fees they incurred in unsuccessfully opposing a petition or other action made by or on behalf of a ward or conservatee, unless the court determines the opposition was made in good faith, based on the best interests of the ward or conservatee. If the court removes the guardian or conservatee for cause, existing law requires the court to award the petitioner for that removal the costs of the petition and other expenses and costs of litigation, unless the court determines the guardian or conservator acted in good faith, based on the best interests of the ward or conservatee. This bill would prohibit a guardian or trustee who is not a trust company, or an employee of such a guardian or conservator, to hire or refer business to an entity in which they have a financial interest. The bill would prohibit a guardian or conservator from being compensated from the estate for any costs or fees that they incurred in unsuccessfully defending their fee request petition, opposing a petition, or any other unsuccessful request or action made by, or on behalf of, the ward or conservatee. The bill would authorize the court to reduce the compensation requested in the petition if the court determines, by clear and convincing evidence, that the defense was made in good faith, was based on the best interest of the ward or conservatee, and did not harm the ward or conservatee. The bill would require the court to award the costs of the petition and other expenses and costs of litigation to a successful petitioner if a guardian or conservatee is removed for cause. The bill would require the Judicial Council to report to the Legislature, on or before January 1, 2024, regarding specified findings and recommendations on court effectiveness in conservatorship cases.