Code Section Group

Probate Code - PROB

DIVISION 4. GUARDIANSHIP, CONSERVATORSHIP, AND OTHER PROTECTIVE PROCEEDINGS [1400 - 3925]

  ( Division 4 enacted by Stats. 1990, Ch. 79. )

PART 4. PROVISIONS COMMON TO GUARDIANSHIP AND CONSERVATORSHIP [2100 - 2893]

  ( Part 4 enacted by Stats. 1990, Ch. 79. )

CHAPTER 1. General Provisions [2100 - 2113]
  ( Chapter 1 enacted by Stats. 1990, Ch. 79. )

2100.
  

Guardianships and conservatorships are governed by Division 3 (commencing with Section 1000), except to the extent otherwise expressly provided by statute, and by this division. If no specific provision of this division is applicable, the provisions applicable to administration of estates of decedents govern so far as they are applicable to like situations.

(Enacted by Stats. 1990, Ch. 79.)

2101.
  

The relationship of guardian and ward and of conservator and conservatee is a fiduciary relationship that is governed by the law of trusts, except as provided in this division.

(Amended by Stats. 1993, Ch. 293, Sec. 2. Effective January 1, 1994.)

2102.
  

A guardian or conservator is subject to the regulation and control of the court in the performance of the duties of the office.

(Enacted by Stats. 1990, Ch. 79.)

2103.
  

(a) When a judgment or order made pursuant to this division becomes final, it releases the guardian or conservator and the sureties from all claims of the ward or conservatee and of any persons affected thereby based upon any act or omission directly authorized, approved, or confirmed in the judgment or order. For the purposes of this section, “order” includes an order settling an account of the guardian or conservator, whether an intermediate or final account.

(b) This section does not apply where the judgment or order is obtained by fraud or conspiracy or by misrepresentation contained in the petition or account or in the judgment or order as to any material fact. For the purposes of this subdivision, misrepresentation includes, but is not limited to, the omission of a material fact.

(Enacted by Stats. 1990, Ch. 79.)

2104.
  

(a) A nonprofit charitable corporation may be appointed as a guardian or conservator of the person or estate, or both, if all of the following requirements are met:

(1) The corporation is incorporated in this state.

(2) The articles of incorporation specifically authorize the corporation to accept appointments as guardian or conservator, as the case may be.

(3) The corporation has been providing, at the time of appointment, care, counseling, or financial assistance to the proposed ward or conservatee under the supervision of a registered social worker certified by the Board of Behavioral Science Examiners of this state.

(b) The petition for appointment of a nonprofit charitable corporation described in this section as a guardian or conservator shall include in the caption the name of a responsible corporate officer who shall act for the corporation for the purposes of this division. If, for any reason, the officer so named ceases to act as the responsible corporate officer for the purposes of this division, the corporation shall file with the court a notice containing (1) the name of the successor responsible corporate officer and (2) the date the successor becomes the responsible corporate officer.

(c) If a nonprofit charitable corporation described in this section is appointed as a guardian or conservator:

(1) The corporation’s compensation as guardian or conservator shall be allowed only for services actually rendered.

(2) Any fee allowed for an attorney for the corporation shall be for services actually rendered.

(Amended by Stats. 2001, Ch. 351, Sec. 1. Effective January 1, 2002.)

2105.
  

(a) The court, in its discretion, may appoint for a ward or conservatee:

(1) Two or more joint guardians or conservators of the person.

(2) Two or more joint guardians or conservators of the estate.

(3) Two or more joint guardians or conservators of the person and estate.

(b) When joint guardians or conservators are appointed, each shall qualify in the same manner as a sole guardian or conservator.

(c) Subject to subdivisions (d) and (e):

(1) Where there are two guardians or conservators, both must concur to exercise a power.

(2) Where there are more than two guardians or conservators, a majority must concur to exercise a power.

(d) If one of the joint guardians or conservators dies or is removed or resigns, the powers and duties continue in the remaining joint guardians or conservators until further appointment is made by the court.

(e) Where joint guardians or conservators have been appointed and one or more are (1) absent from the state and unable to act, (2) otherwise unable to act, or (3) legally disqualified from serving, the court may, by order made with or without notice, authorize the remaining joint guardians or conservators to act as to all matters embraced within its order.

(f) If a custodial parent has been diagnosed as having a terminal condition, as evidenced by a declaration executed by a licensed physician, the court, in its discretion, may appoint the custodial parent and a person nominated by the custodial parent as joint guardians of the person of the minor. However, this appointment shall not be made over the objection of a noncustodial parent without a finding that the noncustodial parent’s custody would be detrimental to the minor, as provided in Section 3041 of the Family Code. It is the intent of the Legislature in enacting the amendments to this subdivision adopted during the 1995–96 Regular Session for a parent with a terminal condition to be able to make arrangements for the joint care, custody, and control of his or her minor children so as to minimize the emotional stress of, and disruption for, the minor children whenever the parent is incapacitated or upon the parent’s death, and to avoid the need to provide a temporary guardian or place the minor children in foster care, pending appointment of a guardian, as might otherwise be required.

“Terminal condition,” for purposes of this subdivision, means an incurable and irreversible condition that, without the administration of life-sustaining treatment, will, within reasonable medical judgment, result in death.

(Amended by Stats. 1999, Ch. 658, Sec. 11. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)

2105.5.
  

(a) Except as provided in subdivision (b), where there is more than one guardian or conservator of the estate, one guardian or conservator is not liable for a breach of fiduciary duty committed by another guardian or conservator.

(b) Where there is more than one guardian or conservator of the estate, one guardian or conservator is liable for a breach of fiduciary duty committed by another guardian or conservator of the same estate under any of the following circumstances:

(1) Where the guardian or conservator participates in a breach of fiduciary duty committed by the other guardian or conservator.

(2) Where the guardian or conservator improperly delegates the administration of the estate to the other guardian or conservator.

(3) Where the guardian or conservator approves, knowingly acquiesces in, or conceals a breach of fiduciary duty committed by the other guardian or conservator.

(4) Where the guardian or conservator negligently enables the other guardian or conservator to commit a breach of fiduciary duty.

(5) Where the guardian or conservator knows or has information from which the guardian or conservator reasonably should have known of the breach of fiduciary duty by the other guardian or conservator and fails to take reasonable steps to compel the other guardian or conservator to redress the breach.

(c) The liability of a guardian or conservator for a breach of fiduciary duty committed by another guardian or conservator that occurred before July 1, 1988, is governed by prior law and not by this section.

(Enacted by Stats. 1990, Ch. 79.)

2106.
  

(a) The court, in its discretion, may appoint one guardian or conservator for several wards or conservatees.

(b) The appointment of one guardian or conservator for several wards or conservatees may be requested in the initial petition filed in the proceeding or may be requested subsequently upon a petition filed in the same proceeding and noticed and heard with respect to the newly proposed ward or conservatee in the same manner as an initial petition for appointment of a guardian or conservator.

(Enacted by Stats. 1990, Ch. 79.)

2107.
  

(a) Unless limited by court order, when a court of this state appoints a guardian or conservator of the person of a nonresident, the appointee has the same powers and duties as a guardian or conservator of the person of a resident while the nonresident is in this state.

(b) When a court of this state appoints a guardian or conservator of the estate of a nonresident, the appointee has, with respect to the property of the nonresident within this state, the same powers and duties as a guardian or conservator of the estate of a resident. The responsibility of such a guardian or conservator with regard to inventory, accounting, and disposal of the estate is confined to the property that comes into the hands of the guardian or conservator in this state.

(Amended by Stats. 2014, Ch. 553, Sec. 21. (SB 940) Effective January 1, 2015. Operative January 1, 2016, by Stats. 2014, Ch. 553, Sec. 29.)

2108.
  

(a) Except to the extent the court for good cause determines otherwise, if a guardian of the person is nominated as provided in Article 1 (commencing with Section 1500) of Chapter 1 of Part 2 and is appointed by the court, the guardian shall be granted in the order of appointment, to the extent provided in the nomination, the same authority with respect to the person of the ward as a parent having legal custody of a child and may exercise such authority without notice, hearing, or court authorization, instructions, approval, or confirmation in the same manner as if such authority were exercised by a parent having legal custody of a child.

(b) Except to the extent the court for good cause determines otherwise and subject to Sections 2593, 2594, and 2595, if a guardian of the estate is nominated under Section 1500 or a guardian for property is nominated under Section 1501 and the guardian is appointed by the court, the guardian shall be granted in the order of appointment, to the extent provided in the nomination, the right to exercise any one or more of the powers listed in Section 2591 without notice, hearing, or court authorization, instructions, approval, or confirmation in the same manner as if such authority were granted by order of the court under Section 2590. In the case of a guardian nominated under Section 1501, such additional authority shall be limited to the property covered by the nomination.

(c) The terms of any order made under this section shall be included in the letters.

(Enacted by Stats. 1990, Ch. 79.)

2109.
  

(a) Subject to Section 2108, a guardian appointed under subdivision (d) of Section 1514 for particular property upon a nomination made under Section 1501 has, with respect to that property, the same powers and duties as a guardian of the estate. The responsibility of such a guardian with regard to inventory, accounting, and disposal of the estate is confined to the property covered by the nomination.

(b) When a guardian is appointed under subdivision (d) of Section 1514 for particular property upon a nomination made under Section 1501 and there is a guardian of the estate appointed under any other provision of Part 2 (commencing with Section 1500):

(1) The guardian appointed for the property covered by the nomination manages and controls that property and the guardian of the estate manages and controls the balance of the guardianship estate.

(2) Either guardian may petition under Section 2403 to the court in which the guardianship of the estate proceeding is pending for instructions concerning how the duties that are imposed by law upon the guardian of the estate are to be allocated between the two guardians.

(Enacted by Stats. 1990, Ch. 79.)

2110.
  

Unless otherwise provided in the instrument or in this division, a guardian or conservator is not personally liable on an instrument, including but not limited to a note, mortgage, deed of trust, or other contract, properly entered into in the guardian’s or conservator’s fiduciary capacity in the course of the guardianship or conservatorship unless the guardian or conservator fails to reveal the guardian’s or conservator’s representative capacity or identify the guardianship or conservatorship estate in the instrument.

(Enacted by Stats. 1990, Ch. 79.)

2111.
  

(a) As used in this section, “transaction” means any of the following:

(1) A conveyance or lease of real property of the guardianship or conservatorship estate.

(2) The creation of a mortgage or deed of trust on real property of the guardianship or conservatorship estate.

(3) A transfer of personal property of the guardianship or conservatorship estate.

(4) The creation of a security interest or other lien in personal property of the guardianship or conservatorship estate.

(b) Whenever the court authorizes or directs a transaction, the transaction shall be carried out by the guardian or conservator of the estate in accordance with the terms of the order.

(c) A conveyance, lease, or mortgage of, or deed of trust on, real property executed by a guardian or conservator shall set forth therein that it is made by authority of the order authorizing or directing the transaction and shall give the date of the order. A certified copy of the order shall be recorded in the office of the county recorder in each county in which any portion of the real property is located.

(d) A transaction carried out by a guardian or conservator in accordance with an order authorizing or directing the transaction has the same effect as if the ward or conservatee had carried out the transaction while having legal capacity to do so.

(Enacted by Stats. 1990, Ch. 79.)

2111.5.
  

(a) Except as provided in subdivision (b), every court official or employee who has duties or responsibilities related to the appointment of a guardian or conservator, or the processing of any document related to a guardian or conservator, and every person who is related by blood or marriage to a court official or employee who has these duties, is prohibited from purchasing, leasing, or renting any real or personal property from the estate of the ward or conservatee whom the guardian or conservator represents. For purposes of this subdivision, a “person related by blood or marriage” means any of the following:

(1) A person’s spouse or domestic partner.

(2) Relatives within the second degree of lineal or collateral consanguinity of a person or a person’s spouse.

(b) A person described in subdivision (a) is not prohibited from purchasing real or personal property from the estate of the ward or conservatee whom the guardian or conservator represents where the purchase is made under terms and conditions of a public sale of the property.

(c) A violation of this section shall result in the rescission of the purchase, lease, or rental of the property. Any losses incurred by the estate of the ward or conservatee because the property was sold or leased at less than fair market value shall be deemed as charges against the guardian or conservator under the provisions of Sections 2401.3 and 2401.5. The court shall assess a civil penalty equal to three times the charges against the guardian, conservator, or other person in violation of this section, and may assess punitive damages as it deems proper. If the estate does not incur losses as a result of the violation, the court shall order the guardian, conservator, or other person in violation of this section to pay a fine of up to five thousand dollars ($5,000) for each violation. The fines and penalties provided in this section are in addition to any other rights and remedies provided by law.

(Amended by Stats. 2001, Ch. 893, Sec. 28. Effective January 1, 2002.)

2113.
  

A conservator shall accommodate the desires of the conservatee, except to the extent that doing so would violate the conservator’s fiduciary duties to the conservatee or impose an unreasonable expense on the conservatorship estate.

(Added by Stats. 2006, Ch. 493, Sec. 13. Effective January 1, 2007.)

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