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 6. Powers and Duties of Guardian or Conservator of the Estate [2400 - 2595]

  ( Chapter 6 enacted by Stats. 1990, Ch. 79. )

ARTICLE 1. Definitions and General Provisions [2400 - 2410]
  ( Article 1 enacted by Stats. 1990, Ch. 79. )

2400.
  

As used in this chapter:

(a) “Conservator” means the conservator of the estate, or the limited conservator of the estate to the extent that the powers and duties of the limited conservator are specifically and expressly provided by the order appointing the limited conservator.

(b) “Estate” means all of the conservatee’s or ward’s personal property, wherever located, and real property located in this state.

(c) “Guardian” means the guardian of the estate.

(Amended by Stats. 2008, Ch. 52, Sec. 2. Effective January 1, 2009.)

2401.
  

(a) The guardian or conservator, or limited conservator to the extent specifically and expressly provided in the appointing court’s order, has the management and control of the estate and, in managing and controlling the estate, shall use ordinary care and diligence. What constitutes use of ordinary care and diligence is determined by all the circumstances of the particular estate.

(b) The guardian or conservator:

(1) Shall exercise a power to the extent that ordinary care and diligence requires that the power be exercised.

(2) Shall not exercise a power to the extent that ordinary care and diligence requires that the power not be exercised.

(c) Notwithstanding any other law, a guardian or conservator who is not a trust company, in exercising his or her powers, may not hire or refer any business to an entity in which he or she has a financial interest except upon authorization of the court. Prior to authorization from the court, the guardian or conservator shall disclose to the court in writing his or her financial interest in the entity. For the purposes of this subdivision, “financial interest” shall mean (1) an ownership interest in a sole proprietorship, a partnership, or a closely held corporation, or (2) an ownership interest of greater than 1 percent of the outstanding shares in a publicly held corporation, or (3) being an officer or a director of a corporation.

(d) Notwithstanding any other law, a guardian or conservator who is a trust company, in exercising its powers may not, except upon authorization of the court, invest in securities of the trust company or an affiliate or subsidiary, or other securities from which the trust company or affiliate or subsidiary receives a financial benefit or in a mutual fund, other than a mutual fund authorized in paragraph (5) of subdivision (a) of Section 2574, registered under the Investment Company Act of 1940 (Subchapter 1 (commencing with Sec. 80a-1) of Chapter 2D of Title 15 of the United States Code), to which the trust company or its affiliate provides services, including, but not limited to, services as an investment adviser, sponsor, distributor, custodian, agent, registrar, administrator, servicer, or manager, and for which the trust company or its affiliate receives compensation.

Prior to authorization from the court, the guardian or conservator shall disclose to the court in writing the trust company’s financial interest.

(Amended by Stats. 2006, Ch. 493, Sec. 21. Effective January 1, 2007.)

2401.1.
  

The guardian or conservator shall use ordinary care and diligence to determine whether the ward or conservatee owns real property in a foreign jurisdiction and to preserve and protect that property. What constitutes use of ordinary care and diligence shall be determined by all the facts and circumstances known, or that become known, to the guardian or conservator, the value of the real property located in the foreign jurisdiction, and the needs of the ward or conservatee. The guardian or conservator, except as provided in subdivision (a) of Section 1061 and in Section 1062, is not charged with, and shall have no duty to inventory or account for the real property located in a foreign jurisdiction, but the guardian or conservator shall, when presenting the inventory and appraisal and accounting to the court, include the schedule set forth in subdivision (h) of Section 1063.

(Added by Stats. 2008, Ch. 52, Sec. 3. Effective January 1, 2009.)

2401.3.
  

(a) If the guardian or conservator breaches a fiduciary duty, the guardian or conservator is chargeable with any of the following that is appropriate under the circumstances:

(1) Any loss or depreciation in value of the estate resulting from the breach of duty, with interest.

(2) Any profit made by the guardian or conservator through the breach of duty, with interest.

(3) Any profit that would have accrued to the estate if the loss of profit is the result of the breach of duty.

(b) If the guardian or conservator has acted reasonably and in good faith under the circumstances as known to the guardian or conservator, the court, in its discretion, may excuse the guardian or conservator in whole or in part from liability under subdivision (a) if it would be equitable to do so.

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

2401.5.
  

(a) If the guardian or conservator is liable for interest pursuant to Section 2401.3, the guardian or conservator is liable for the greater of the following amounts:

(1) The amount of interest that accrues at the legal rate on judgments.

(2) The amount of interest actually received.

(b) If the guardian or conservator has acted reasonably and in good faith under the circumstances as known to the guardian or conservator, the court, in its discretion, may excuse the guardian or conservator in whole or in part from liability under subdivision (a) if it would be equitable to do so.

(Amended by Stats. 1998, Ch. 77, Sec. 2. Effective January 1, 1999.)

2401.6.
  

Any surcharge that a guardian or conservator incurs under the provisions of Sections 2401.3 or 2401.5 may not be paid by or offset against future fees or wages to be provided by the estate to the guardian or conservator.

(Added by Stats. 2000, Ch. 565, Sec. 7. Effective January 1, 2001.)

2401.7.
  

The provisions of Sections 2401.3 and 2401.5 for liability of a guardian or conservator for breach of a fiduciary duty do not prevent resort to any other remedy available against the guardian or conservator under the statutory or common law.

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

2402.
  

When a guardian or conservator is appointed, the court may, with the consent of the guardian or conservator, insert in the order of appointment conditions not otherwise obligatory providing for the care and custody of the property of the ward or conservatee. Any such conditions shall be included in the letters. The performance of such conditions is a part of the duties of the guardian or conservator for the faithful performance of which the guardian or conservator and the sureties on the bond are responsible.

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

2403.
  

(a) Upon petition of the guardian or conservator, the ward or conservatee, a creditor, or other interested person, the court may authorize and instruct the guardian or conservator, or approve and confirm the acts of the guardian or conservator, in the administration, management, investment, disposition, care, protection, operation, or preservation of the estate, or the incurring or payment of costs, fees, or expenses in connection therewith.

(b) Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

(c) (1) When a guardian or conservator petitions for the approval of a purchase, lease, or rental of real or personal property from the estate of a ward or conservatee, the guardian or conservator shall provide a statement disclosing the family or affiliate relationship between the guardian and conservator and the purchaser, lessee, or renter of the property, and the family or affiliate relationship between the guardian or conservator and any agent hired by the guardian or conservator.

(2) For the purposes of this subdivision, “family” means a person’s spouse, domestic partner, or relatives within the second degree of lineal or collateral consanguinity of a person or a person’s spouse. For the purposes of this subdivision, “affiliate” means an entity that is under the direct control, indirect control, or common control of the guardian or conservator.

(3) 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. 33. Effective January 1, 2002.)

2404.
  

(a) If the guardian or conservator fails, neglects, or refuses to furnish comfortable and suitable support, maintenance, or education for the ward or conservatee as required by this division, or to pay a debt, expense, or charge lawfully due and payable by the ward or conservatee or the estate as provided in this division, the court shall, upon petition or upon its own motion, order the guardian or conservator to do so from the estate.

(b) The petition may be filed by the ward or conservatee or by the creditor or any other interested person. Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

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

2405.
  

If there is a dispute relating to the estate between the guardian or conservator and a third person, the guardian or conservator, or the limited conservator to the extent specifically and expressly provided in the order appointing the limited conservator, may do either of the following:

(a) Enter into an agreement in writing with the third person to refer the dispute to a temporary judge designated in the agreement. The agreement shall be filed with the clerk, who shall thereupon, with the approval of the court, enter an order referring the matter to the designated person. The temporary judge shall proceed promptly to hear and determine the matter in controversy by summary procedure, without any pleadings, discovery, or jury trial. The decision of the temporary judge is subject to Section 632 of the Code of Civil Procedure. Judgment shall be entered on the decision and is as valid and effective as if rendered by a judge of the court in an action against the guardian or conservator or the third person commenced by ordinary process.

(b) Enter into an agreement in writing with the third person that a judge of the court, pursuant to the agreement and with the written consent of the judge, both filed with the clerk within the time for bringing an independent action on the matter in dispute, may hear and determine the dispute pursuant to the procedure provided in subdivision (a).

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

2406.
  

If there is a dispute relating to the estate between the guardian or conservator and a third person, the guardian or conservator may enter into an agreement in writing with the third person to submit the dispute to arbitration under Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure. The agreement is not effective unless it has first been approved by the court and a copy of the approved agreement is filed with the court.

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

2407.
  

This chapter applies to property owned by spouses as community property only to the extent authorized by Part 6 (commencing with Section 3000).

(Amended by Stats. 2016, Ch. 50, Sec. 82. (SB 1005) Effective January 1, 2017.)

2408.
  

Nothing in this chapter limits or restricts any authority granted to a guardian or conservator pursuant to Article 11 (commencing with Section 2590) to administer the estate under that article.

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

2410.
  

On or before January 1, 2008, the Judicial Council, in consultation with the California Judges Association, the California Association of Superior Court Investigators, the California State Association of Public Administrators, Public Guardians, and Public Conservators, the State Bar of California, the National Guardianship Association, and the Association of Professional Geriatric Care Managers, shall adopt a rule of court that shall require uniform standards of conduct for actions that conservators and guardians may take under this chapter on behalf of conservatees and wards to ensure that the estate of conservatees or wards are maintained and conserved as appropriate and to prevent risk of loss or harm to the conservatees or wards. This rule shall include at a minimum standards for determining the fees that may be charged to conservatees or wards and standards for asset management.

(Added by Stats. 2006, Ch. 493, Sec. 22. Effective January 1, 2007.)

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