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SB-303 Guardians and conservators: compensation: residence of conservatee.(2019-2020)

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Date Published: 10/14/2019 09:00 PM
SB303:v93#DOCUMENT

Senate Bill No. 303
CHAPTER 847

An act to amend Sections 2352.5, 2540, 2591, 2591.5, 2640, and 2641 of, and to add Section 2541.5 to, the Probate Code, relating to guardians and conservators.

[ Approved by Governor  October 12, 2019. Filed with Secretary of State  October 12, 2019. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 303, Wieckowski. Guardians and conservators: compensation: residence of conservatee.
(1) The Guardianship-Conservatorship Law (law) generally establishes the powers and duties of a guardian or conservator of a person, an estate, or both. The law authorizes the guardian or conservator to establish the residence of the ward or conservatee at any place within this state without the permission of the court, and requires the guardian or conservator to select the least restrictive appropriate residence that is available. The law presumes that the personal residence of the conservatee is the least restrictive appropriate residence for the conservatee, and provides that, in any hearing to determine if removal of the conservatee from their personal residence is appropriate, the presumption may be overcome by a preponderance of the evidence.
This bill would instead provide the presumption may be overcome by clear and convincing evidence.
(2) The law generally authorizes a conservator to sell the present or former residence of the conservatee, if the sale provides specified benefits and the guardian or conservator complies with applicable procedures and provides required notice. Existing law requires a conservator to notify the court of the proposed sale and provide specific information about the sale and the conservatee, including the benefits of selling the residence and whether the conservatee supports the sale or has the ability to live in their personal residence. Existing law authorizes the court to waive certain requirements imposed on a conservator selling the conservatee’s residence, including requirements for an appraisal.
This bill would require a conservator to notify the court of a sale of a present or former residence before the conservator commits any significant resources to the proposed sale, except as specified, and would further require the conservator to provide the court with additional information about the sale. The bill would authorize the sale of a conservatee’s present or former personal residence only if the court finds by clear and convincing evidence that the conservator demonstrated a compelling need to sell the residence for the benefit of the conservatee. The bill would delete the authority of a court to waive certain requirements for a sale, including the requirement for a conservator to obtain an appraisal.
(3) The law authorizes a guardian or conservator of the estate or person to petition the court for an order to compensate their services or the services of the attorney to the guardian or conservator. Existing law requires the compensation to be reasonable and prohibits compensation to a guardian or conservator for any costs or fees incurred in unsuccessfully opposing a petition, or other request or action, made by or on behalf of the ward or conservatee, except as specified.
This bill would prohibit compensation to a guardian, conservator, or attorney with any government benefits program moneys unless deemed by the court to be necessary to sustain the support and maintenance of the ward or conservatee.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 2352.5 of the Probate Code is amended to read:

2352.5.
 (a) It shall be presumed that the personal residence of the conservatee at the time of commencement of the proceeding is the least restrictive appropriate residence for the conservatee. In any hearing to determine if removal of the conservatee from the conservatee’s personal residence is appropriate, that presumption may be overcome by clear and convincing evidence.
(b) Upon appointment, the conservator shall determine the appropriate level of care for the conservatee.
(1) That determination shall include an evaluation of the level of care existing at the time of commencement of the proceeding and the measures that would be necessary to keep the conservatee in their personal residence.
(2) If the conservatee is living at a location other than the conservatee’s personal residence at the commencement of the proceeding, that determination shall either include a plan to return the conservatee to their personal residence or an explanation of the limitations or restrictions on a return of the conservatee to their personal residence in the foreseeable future.
(c) The determination made by the conservator pursuant to subdivision (b) shall be in writing, signed under penalty of perjury, and submitted to the court within 60 days of appointment as conservator.
(d) The conservator shall evaluate the conservatee’s placement and level of care if there is a material change in circumstances affecting the conservatee’s needs for placement and care.
(e) (1) This section shall not apply to a conservatee with developmental disabilities for whom the Director of Developmental Services or a regional center for the developmentally disabled, established pursuant to Chapter 5 (commencing with Section 4620) of Division 4.5 of the Welfare and Institutions Code, acts as the conservator and who receives services from a regional center pursuant to the Lanterman Developmental Disabilities Act (Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code).
(2) Services, including residential placement, for a conservatee described in paragraph (1) who is a consumer, as defined in Section 4512 of the Welfare and Institutions Code, shall be identified, delivered, and evaluated consistent with the individual program plan process described in Article 2 (commencing with Section 4640) of Chapter 5 of Division 4.5 of the Welfare and Institutions Code.

SEC. 2.

 Section 2540 of the Probate Code is amended to read:

2540.
 (a) Except as otherwise provided in Sections 2544 and 2545, and except for the sale of a conservatee’s present or former personal residence as set forth in subdivision (b), sales of real or personal property of the estate under this article are subject to authorization, confirmation, or direction of the court, as provided in this article.
(b) In seeking authorization to sell a conservatee’s present or former personal residence, the conservator shall notify the court that the present or former personal residence is proposed to be sold and that the conservator has discussed the proposed sale with the conservatee. The conservator shall inform the court whether the conservatee supports or is opposed to the proposed sale and shall describe the circumstances that necessitate the proposed sale, including whether the conservatee has the ability to live in the personal residence and why other alternatives, including, but not limited to, in-home care services, are not available. The court, in its discretion, may require the court investigator to discuss the proposed sale with the conservatee.
(c) Notice under subdivision (b) shall be provided to the court before the conservator commits any significant resources to the proposed sale of the residence, unless the conservator can establish that either the conservatee has the capacity to consent and unequivocally consents to the sale, or there are exigent circumstances that require the conservator to commit resources to the sale prior to court approval.

SEC. 3.

 Section 2541.5 is added to the Probate Code, to read:

2541.5.
 Notwithstanding Section 2541, the court may authorize a conservator to sell a conservatee’s present or former personal residence only if the court finds by clear and convincing evidence that the conservator demonstrated a compelling need to sell the residence for the benefit of the conservatee.

SEC. 4.

 Section 2591 of the Probate Code is amended to read:

2591.
 The powers referred to in Section 2590 are:
(a) The power to operate, for a period longer than 45 days, at the risk of the estate a business, farm, or enterprise constituting an asset of the estate.
(b) The power to grant and take options.
(c) (1) The power to sell at public or private sale real or personal property of the estate without confirmation of the court of the sale, other than the personal residence of a conservatee.
(2) The power to sell at public or private sale the personal residence of the conservatee as described in Section 2591.5 without confirmation of the court of the sale. The power granted pursuant to this paragraph is subject to the requirements of Sections 2352.5, 2540, 2541, and 2541.5.
(3) For purposes of this subdivision, authority to sell property includes authority to contract for the sale and fulfill the terms and conditions of the contract, including conveyance of the property.
(d) The power to create by grant or otherwise easements and servitudes.
(e) The power to borrow money.
(f) The power to give security for the repayment of a loan.
(g) The power to purchase real or personal property.
(h) The power to alter, improve, raze, replace, and rebuild property of the estate.
(i) The power to let or lease property of the estate, or extend, renew, or modify a lease of real property, for which the monthly rental or lease term exceeds the maximum specified in Sections 2501 and 2555 for any purpose (including exploration for and removal of gas, oil, and other minerals and natural resources) and for any period, including a term commencing at a future time.
(j) The power to lend money on adequate security.
(k) The power to exchange property of the estate.
(l) The power to sell property of the estate on credit if any unpaid portion of the selling price is adequately secured.
(m) The power to commence and maintain an action for partition.
(n) The power to exercise stock rights and stock options.
(o) The power to participate in and become subject to and to consent to the provisions of a voting trust and of a reorganization, consolidation, merger, dissolution, liquidation, or other modification or adjustment affecting estate property.
(p) The power to pay, collect, compromise, or otherwise adjust claims, debts, or demands upon the guardianship or conservatorship described in subdivision (a) of Section 2501, Section 2502 or 2504, or to arbitrate any dispute described in Section 2406.

SEC. 5.

 Section 2591.5 of the Probate Code is amended to read:

2591.5.
 (a) Notwithstanding any other provisions of this article, a conservator seeking an order under Section 2590 authorizing a sale of the conservatee’s personal residence shall demonstrate to the court that the terms of sale, including the price for which the property is to be sold, the commissions to be paid from the estate, estimated capital gains income and tax consequences, and impact on access to governmental benefits, are in all respects in the best interests of the conservatee.
(b) A conservator authorized to sell the conservatee’s personal residence pursuant to Section 2590 shall comply with the provisions of Section 10309 concerning appraisal or new appraisal of the property for sale and sale at a minimum offer price. Notwithstanding Section 10309, if the last appraisal of the conservatee’s personal residence was conducted more than six months prior to the proposed sale of the property, a new appraisal shall be required prior to the sale of the property, unless the court finds that it is in the best interests of the conservatee to rely on an appraisal of the personal residence that was conducted not more than one year prior to the proposed sale of the property. For purposes of this section, the date of sale is the date of the contract for sale of the property.
(c) Within 15 days of the close of escrow, the conservator shall serve a copy of the final escrow settlement statement on all persons entitled to notice of the petition for appointment for a conservator and all persons who have filed and served a request for special notice and shall file a copy of the final escrow statement along with a proof of service with the court.

SEC. 6.

 Section 2640 of the Probate Code is amended to read:

2640.
 (a) At any time after the filing of the inventory and appraisal, 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, the guardian or conservator of the estate may petition the court for an order fixing and allowing compensation to any one or more of the following:
(1) The guardian or conservator of the estate for services rendered to that time.
(2) The guardian or conservator of the person for services rendered to that time.
(3) The attorney for services rendered to that time by the attorney to the guardian or conservator of the person or estate or both.
(b) Notice of the hearing shall be given for the period and in the manner provided for in Chapter 3 (commencing with Section 1460) of Part 1.
(c) Upon the hearing, the court shall make an order allowing (1) 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 (2) 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. 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. The compensation allowed shall be charged to the estate. Legal services for which the attorney may be compensated include those services rendered by any paralegal performing legal services under the direction and supervision of an attorney. The petition or application for compensation shall set forth the hours spent and services performed by the paralegal.
(d) Notwithstanding subdivision (c), the guardian or conservator shall not be 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.
(e) Notwithstanding subdivision (c), the guardian, conservator, or attorney shall not be compensated with any government benefits program moneys unless deemed by the court as necessary to sustain the support and maintenance of the ward or conservatee, but in no event may this exceed the amount permitted by federal laws and regulations.

SEC. 7.

 Section 2641 of the Probate Code is amended to read:

2641.
 (a) At any time permitted by Section 2640 and upon the notice therein prescribed, the guardian or conservator of the person may petition the court for an order fixing and allowing compensation for services rendered to that time.
(b) Upon the hearing, the court shall make an order allowing any compensation the court determines is just and reasonable to the guardian or conservator of the person for services rendered. The compensation allowed to the guardian or conservator of the person may, in the discretion of the court, include compensation for services rendered before the date of the order appointing the guardian or conservator. The compensation allowed shall thereupon be charged against the estate.
(c) The guardian or conservator shall not be 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.
(d) Notwithstanding subdivision (b), the guardian or conservator of the person shall not be compensated with any government benefits program moneys unless deemed by the court as necessary to sustain the support and maintenance of the ward or conservatee, but in no event may this exceed the amount permitted by federal laws and regulations.