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SB-1011 Proceeding to establish limited conservatorship: person with developmental disabilities.(2017-2018)

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Date Published: 04/12/2018 09:00 PM
SB1011:v97#DOCUMENT

Amended  IN  Senate  April 12, 2018
Amended  IN  Senate  April 02, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1011


Introduced by Senator Roth

February 06, 2018


An act to amend Sections 1821 and 1827.5 of the Probate Code, relating to conservatorships.


LEGISLATIVE COUNSEL'S DIGEST


SB 1011, as amended, Roth. Proceeding to establish limited conservatorship: person with developmental disabilities.
(1) Existing law requires a petition for a conservatorship to provide identification and contact information about the proposed conservator and the proposed conservatee, and state the reasons why a conservatorship is necessary. Existing law further requires a petition to be supported by separately filed supplemental information that is protected from disclosure, except under specified conditions.
This bill would specifically authorize a petition to establish a limited conservatorship for a person with developmental disabilities to be additionally supported by the most recent individual program plan (IPP) regarding the proposed limited conservatee and provide this plan the IPP with similar protections from disclosure as the supplemental information provided in support of a petition.
(2) Existing law requires, in a proceeding on a petition to establish a limited conservatorship for a person with developmental disabilities, a regional center to evaluate a proposed limited conservatee, with his or her consent, and submit a written report of its findings and recommendations. Existing law requires the regional center to submit this report to the court at least 5 days before the hearing on the petition.
This bill would expand the time in which a regional center is generally required to submit the report to the court from 5 to 15 days before the hearing on the petition. The bill would require the regional center to attach the most recent individual program plan IPP to its report regarding a person who is a client of a regional center.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1821 of the Probate Code is amended to read:

1821.
 (a) The petition shall request that a conservator be appointed for the person or estate, or both, shall specify the name, address, and telephone number of the proposed conservator and the name, address, and telephone number of the proposed conservatee, and state the reasons why a conservatorship is necessary. Unless the petitioner or proposed conservator is a bank or other entity authorized to conduct the business of a trust company, the petitioner or proposed conservator shall also file supplemental information as to why the appointment of a conservator is required. The supplemental information to be submitted required that shall include include, but not be limited to, a brief statement of facts addressed to each of the following categories:
(1) The inability of the proposed conservatee to properly provide for his or her needs for physical health, food, clothing, and shelter.
(2) The location of the proposed conservatee’s residence and the ability of the proposed conservatee to live in the residence while under conservatorship.
(3) Alternatives to conservatorship considered by the petitioner or proposed conservator and reasons why those alternatives are not available.
(4) Health or social services provided to the proposed conservatee during the year preceding the filing of the petition, when the petitioner or proposed conservator has information as to those services.
(5) The inability of the proposed conservatee to substantially manage his or her own financial resources, or to resist fraud or undue influence.
The facts required to address the categories set forth in paragraphs (1) to (5), inclusive, shall be set forth by the petitioner or proposed conservator if he or she has knowledge of the facts or by the declarations or affidavits of other persons having knowledge of those facts.
If any of the categories set forth in paragraphs (1) to (5), inclusive, are not applicable to the proposed conservatorship, the petitioner or proposed conservator shall so indicate and state on the supplemental information form the reasons therefor.
The Judicial Council shall develop a supplemental information form for the information required pursuant to paragraphs (1) to (5), inclusive, after consultation with individuals or organizations approved by the Judicial Council, who represent public conservators, court investigators, the State Bar, specialists with experience in performing assessments and coordinating community-based services, and legal services for the elderly and disabled.
The supplemental information form shall be separate and distinct from the form for the petition. The supplemental information shall be confidential and shall be made available only to parties, persons given notice of the petition who have requested this supplemental information or who have appeared in the proceedings, their attorneys, and the court. The court shall have discretion at any other time to release the supplemental information to other persons if it would serve the interests of the conservatee. The clerk of the court shall make provision for limiting disclosure of the supplemental information exclusively to persons entitled thereto under this section.
(b) The petition shall set forth, so far as they are known to the petitioner or proposed conservator, the names and addresses of the spouse or domestic partner, and of the relatives of the proposed conservatee within the second degree. If no spouse or domestic partner of the proposed conservatee or relatives of the proposed conservatee within the second degree are known to the petitioner or proposed conservator, the petition shall set forth, so far as they are known to the petitioner or proposed conservator, the names and addresses of the following persons who, for the purposes of Section 1822, shall all be deemed to be relatives:
(1) A spouse or domestic partner of a predeceased parent of a proposed conservatee.
(2) The children of a predeceased spouse or domestic partner of a proposed conservatee.
(3) The siblings of the proposed conservatee’s parents, if any, but if none, then the natural and adoptive children of the proposed conservatee’s parents’ siblings.
(4) The natural and adoptive children of the proposed conservatee’s siblings.
(c) If the petitioner or proposed conservator is a professional fiduciary, as described in Section 2340, who is required to be licensed under the Professional Fiduciaries Act (Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code), the petition shall include the following:
(1) The petitioner’s or proposed conservator’s proposed hourly fee schedule or another statement of his or her proposed compensation from the estate of the proposed conservatee for services performed as a conservator. The petitioner’s or proposed conservator’s provision of a proposed hourly fee schedule or another statement of his or her proposed compensation, as required by this paragraph, shall not preclude a court from later reducing the petitioner’s or proposed conservator’s fees or other compensation.
(2) Unless a petition for appointment of a temporary conservator that contains the statements required by this paragraph is filed together with a petition for appointment of a conservator, both of the following:
(A) A statement of the petitioner’s or proposed conservator’s license information.
(B) A statement explaining who engaged the petitioner or proposed conservator or how the petitioner or proposed conservator was engaged to file the petition for appointment of a conservator or to agree to accept the appointment as conservator and what prior relationship the petitioner or proposed conservator had with the proposed conservatee or the proposed conservatee’s family or friends.
(d) If the petition is filed by a person other than the proposed conservatee, the petition shall include a declaration of due diligence showing both of the following:
(1) Either the efforts to find the proposed conservatee’s relatives or why it was not feasible to contact any of them.
(2) Either the preferences of the proposed conservatee concerning the appointment of a conservator and the appointment of the proposed conservator or why it was not feasible to ascertain those preferences.
(e) If the petition is filed by a person other than the proposed conservatee, the petition shall state whether or not the petitioner is a creditor or debtor, or the agent of a creditor or debtor, of the proposed conservatee.
(f) If the proposed conservatee is a patient in or on leave of absence from a state institution under the jurisdiction of the State Department of State Hospitals or the State Department of Developmental Services and that fact is known to the petitioner or proposed conservator, the petition shall state that fact and name the institution.
(g) The petition shall state, so far as is known to the petitioner or proposed conservator, whether or not the proposed conservatee is receiving or is entitled to receive benefits from the Veterans Administration and the estimated amount of the monthly benefit payable by the Veterans Administration for the proposed conservatee.
(h) The petition may include an application for any order or orders authorized under this division, including, but not limited to, orders under Chapter 4 (commencing with Section 1870).
(i) The petition may include a further statement that the proposed conservatee is not willing to attend the hearing on the petition, does not wish to contest the establishment of the conservatorship, and does not object to the proposed conservator or prefer that another person act as conservator.
(j) In the case of an allegedly developmentally disabled adult, the petition shall set forth the following:
(1) The nature and degree of the alleged disability, the specific duties and powers requested by or for the limited conservator, and the limitations of civil and legal rights requested to be included in the court’s order of appointment.
(2) Whether or not the proposed limited conservatee is or is alleged to be developmentally disabled.
Reports submitted pursuant to Section 416.8 of the Health and Safety Code meet the requirements of this section, and conservatorships filed pursuant to Article 7.5 (commencing with Section 416) of Chapter 2 of Part 1 of Division 1 of the Health and Safety Code are exempt from providing the supplemental information required by this section, so long as the guidelines adopted by the State Department of Developmental Services for regional centers require the same information that is required pursuant to this section.
(k) The petition shall state, so far as is known to the petitioner, whether or not the proposed conservatee is a member of a federally recognized Indian tribe. If so, the petition shall state the name of the tribe, the state in which the tribe is located, whether the proposed conservatee resides on tribal land, and whether the proposed conservatee is known to own property on tribal land. For the purposes of this subdivision, “tribal land” means land that is, with respect to a specific Indian tribe and the members of that tribe, “Indian country” as defined in Section 1151 of Title 18 of the United States Code.
(l) In addition to any supplemental information filed pursuant to subdivision (a), in the case of a proceeding to establish a limited conservatorship for a person with developmental disabilities, the petitioner or proposed conservator may file, as an attachment to the supplemental information form described in subdivision (a), file the most recent individual program plan (IPP), as provided for in Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, of the proposed conservatee. An IPP filed pursuant to this subdivision shall have the same protections from disclosure as the supplemental information form to which it is attached. filed pursuant to subdivision (a).

SEC. 2.

 Section 1827.5 of the Probate Code is amended to read:

1827.5.
 (a) In the case of any proceeding to establish a limited conservatorship for a person with developmental disabilities, within 30 days after the filing of a petition for limited conservatorship, a proposed limited conservatee, with his or her consent, shall be assessed at a regional center as provided in Chapter 5 (commencing with Section 4620) of Division 4.5 of the Welfare and Institutions Code. The regional center shall submit a written report of its findings and recommendations to the court.
(b) In the case of any proceeding to establish a general conservatorship for a person with developmental disabilities, the regional center, with the consent of the proposed conservatee, may prepare an assessment as provided in Chapter 5 (commencing with Section 4620) of Division 4.5 of the Welfare and Institutions Code. If an assessment is prepared, the regional center shall submit its findings and recommendations to the court.
(c) (1) A report prepared under subdivision (a) or (b) shall include a description of the specific areas, nature, and degree of disability of the proposed conservatee or proposed limited conservatee. The findings and recommendations of the regional center are not binding upon the court.
(2) In a proceeding where the petitioner is a provider of board and care, treatment, habilitation, or other services to persons with developmental disabilities or a spouse or employee of a provider, is not the natural parent of the proposed conservatee or proposed limited conservatee, and is not a public entity, the regional center shall include a recommendation in its report concerning the suitability of the petitioners to meet the needs of the proposed conservatee or proposed limited conservatee.
(3) A regional center shall attach to its report prepared under subdivision (a) the most recent individual program plan (IPP), as provided for in Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, for a person with developmental disabilities who is a client of a regional center.
(d) At least 15 days before the hearing on the petition, the regional center shall deliver pursuant to Section 1215 a copy of the report described in subdivision (a) to all of the following:
(1) The proposed limited conservatee.
(2) The attorney, if any, for the proposed limited conservatee.
(3) If the petitioner is not the proposed limited conservatee, the attorney for the petitioner or the petitioner if the petitioner does not have an attorney.
(4) Any other persons as the court orders.
(e) The report referred to in subdivisions (a) and (b) shall be confidential and shall be made available only to parties listed in subdivision (d) unless the court, in its discretion, determines that the release of the report would serve the interests of the conservatee who is developmentally disabled. The clerk of the court shall limit disclosure of the report exclusively to persons entitled under this section.