Today's Law As Amended


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SB-724 Guardianships and conservatorships.(2021-2022)



As Amends the Law Today


SEC. 2.SECTION 1.

 Section 1470 of the Probate Code is amended to read:

1470.
 (a) The court may appoint private legal counsel for a ward, a proposed ward, a conservatee, or a proposed conservatee  a proposed conservatee, or a person alleged to lack legal capacity  in any proceeding under this division if the court determines the person is not otherwise represented by legal counsel and that the appointment would be helpful to the resolution of the matter or is necessary to protect the person’s interests. counsel. 
(b) If a person is furnished legal counsel under this section, the court shall, upon conclusion of the matter, fix a reasonable sum for compensation and expenses of counsel. The sum may, in the discretion of the court, include compensation for services rendered, and expenses incurred, before the date of the order appointing counsel.
(c) The court shall order the sum fixed under subdivision (b) to be paid:
(1) If the person for whom legal counsel is appointed is an adult, from the estate of that person.
(2) If the person for whom legal counsel is appointed is a minor, by a parent or the parents of the minor or from the minor’s estate, or any combination thereof, in any proportions the court deems just.
(3) If a ward or proposed ward is furnished legal counsel for a guardianship proceeding, upon its own motion or that of a party, the court shall determine whether a parent or parents of the ward or proposed ward or the estate of the ward or proposed ward is financially unable to pay all or a portion of the cost of counsel appointed pursuant to this section. Any portion of the cost of that counsel that the court finds the parent or parents or the estate of the ward or proposed ward is unable to pay shall be paid by the county. The Judicial Council shall adopt guidelines to assist in determining financial eligibility for county payment of counsel appointed by the court pursuant to this chapter.
(d) The court may make an order under subdivision (c) requiring payment by a parent or parents of the minor only after the parent or parents, as the case may be, have been given notice and the opportunity to be heard on whether the order would be just under the circumstances of the particular case.

SEC. 3.SEC. 2.

 Section 1471 of the Probate Code is amended to read:

1471.
 (a) If a conservatee, proposed conservatee, or person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the interest of that  person in the following proceedings under this division:
(1) A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.
(2) A proceeding to terminate the conservatorship.
(3) A proceeding to remove the conservator.
(4) A proceeding for a court order affecting the legal capacity of the conservatee.
(5) A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence.
(b) If a conservatee or proposed conservatee does not plan to retain  has not retained  legal counsel and has not requested the court to appoint does not plan to retain  legal counsel, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the interests of that person in any proceeding listed in subdivision (a) if, based on information contained in the court investigator’s report or obtained from any other source, 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. (a). 
(c) In any proceeding to establish a limited conservatorship, if the proposed limited conservatee has not retained legal counsel and does not plan to retain legal counsel, the court shall immediately appoint the public defender or private counsel to represent the proposed limited conservatee. The proposed limited conservatee shall pay the cost for that legal service if he or she is  they are  able. This subdivision applies irrespective of any medical or psychological inability to attend the hearing on the part of the proposed limited conservatee as allowed in Section 1825.
(d) If a conservatee, proposed conservatee, or person alleged to lack legal capacity expresses any preference for a particular attorney to represent them, the court shall allow representation by the preferred attorney, even if the attorney is not on the court’s list of a court appointed attorneys.
(e) The role of legal counsel of a conservatee, proposed conservatee, or a person alleged to lack legal capacity is that of a zealous advocate, consistent with the duties set forth in Section 6068 of the Business and Professions Code and the California Rules of Professional Conduct.
(f) In an appeal or writ proceeding arising out of a proceeding described in this section, if a conservatee or proposed conservatee is not represented by legal counsel, the reviewing court shall appoint legal counsel to represent the conservatee or proposed conservatee before the court.

SEC. 4.SEC. 3.

 Section 1826 of the Probate Code is amended to read:

1826.
 (a) Regardless of whether the proposed conservatee attends the hearing, the court investigator shall do all of the following:
(1) Conduct the following interviews:
(A) The proposed conservatee conservatee,  personally.
(B) All petitioners and all proposed conservators who are not petitioners.
(C) The proposed conservatee’s spouse or registered domestic partner and relatives within the first degree. If the proposed conservatee does not have a spouse, registered domestic partner, or relatives within the first degree, to the greatest extent possible, the proposed conservatee’s relatives within the second degree.
(D) To the greatest extent practical and taking into account the proposed conservatee’s wishes, the proposed conservatee’s relatives within the second degree not required to be interviewed under subparagraph (C), neighbors, and, if known, close friends.
(2) Inform the proposed conservatee of the contents of the citation, of the nature, purpose, and effect of the proceeding, and of the right of the proposed conservatee to oppose the proceeding, to attend the hearing, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.
(3) Determine if it appears that the proposed conservatee is unable to attend the hearing and, if able to attend, whether the proposed conservatee is willing to attend the hearing.
(4) Review the allegations of the petition as to why the appointment of the conservator is required and, in making his or her  that  determination, do the following:
(A) Refer to the supplemental information form submitted by the petitioner and consider the facts set forth in the form that address each of the categories specified in paragraphs (1) to (5), inclusive, of subdivision (a) of Section 1821.
(B) Consider, to the extent practicable, whether he or she the court investigator  believes the proposed conservatee suffers from any of the mental function deficits listed in subdivision (a) of Section 811 that significantly impairs the proposed conservatee’s ability to understand and appreciate the consequences of his or her  their  actions in connection with any of the functions described in subdivision (a) or (b) of Section 1801 and identify the observations that support that belief.
(5) Determine if the proposed conservatee wishes to contest the establishment of the conservatorship.
(6) Determine if the proposed conservatee objects to the proposed conservator or prefers another person to act as conservator.
(7) Determine if the proposed conservatee wishes to be represented by legal counsel and, if so, whether the proposed conservatee has retained legal counsel and, if not, the name of an attorney the proposed conservatee wishes to retain.
(8) (A) Determine if the proposed conservatee is incapable of communicating, with or without reasonable accommodations, a desire to participate in the voting process, and may be disqualified from voting pursuant to Section 2208 of the Elections Code.
(B) The proposed conservatee shall not be disqualified from voting on the basis that he or she the proposed conservatee  does, or would need to do, any of the following to complete an affidavit of voter registration:
(i) Signs the affidavit of voter registration with a mark or a cross pursuant to subdivision (b) of Section 2150 of the Elections Code.
(ii) Signs the affidavit of voter registration by means of a signature stamp pursuant to Section 354.5 of the Elections Code.
(iii) Completes the affidavit of voter registration with the assistance of another person pursuant to subdivision (d) of Section 2150 of the Elections Code.
(iv) Completes the affidavit of voter registration with reasonable accommodations.
(9) If the proposed conservatee does not plan to retain legal counsel or  has not retained legal counsel, determine if the proposed conservatee desires the court to appoint legal counsel.  
(10) Determine if the appointment of legal counsel would be helpful to the resolution of the matter or is necessary to protect the interests of the proposed conservatee in a case where the proposed conservatee does not plan to retain legal counsel and has not requested the appointment of legal counsel by the court.
(11) (10)  Report to the court in writing, at least five days before the hearing, concerning all of the foregoing, including the proposed conservatee’s express communications concerning both of the following:
(A) Representation by legal counsel.
(B) If the proposed conservatee is not willing to attend the hearing, does not wish to contest the establishment of the conservatorship, and does not object to the proposed conservator or prefers that another person act as conservator.
(12) (11)  Deliver pursuant to Section 1215, at least five days before the hearing, a copy of the report referred to in paragraph (11) to all of the following:
(A) The attorney, if any, for the petitioner.
(B) The attorney, if any, for the proposed conservatee.
(C) The proposed conservatee.
(D) The spouse, registered domestic partner, and relatives within the first degree of the proposed conservatee who are required to be named in the petition for appointment of the conservator, unless the court determines that the delivery will harm the conservatee.
(E) Any other persons as the court orders.
(b) The court investigator has discretion to release the report required by this section to the public conservator, interested public agencies, and the long-term care ombudsperson.
(c) The report required by this section is confidential and shall be made available only to parties, persons described in paragraph (12) of subdivision (a), persons given notice of the petition who have requested this report or who have appeared in the proceedings, their attorneys, and the court. The court has discretion at any other time to release the report, if it would serve the interests of the conservatee. The clerk of the court shall provide for the limitation of the report exclusively to persons entitled to its receipt.
(d) This section does not apply to a proposed conservatee who has personally executed the petition for conservatorship, or a proposed conservatee who has nominated his or her  their  own conservator, if he or she the proposed conservatee  attends the hearing.
(e) If the court investigator has performed an investigation within the preceding six months and furnished a report thereon to the court, the court may order, upon good cause shown, that another investigation is not necessary or that a more limited investigation may be performed.
(f) An investigation by the court investigator related to a temporary conservatorship also may be a part of the investigation for the general petition for conservatorship, but the court investigator shall make a second visit to the proposed conservatee and the report required by this section shall include the effect of the temporary conservatorship on the proposed conservatee.
(g) The Judicial Council shall, on or before January 1, 2009, adopt rules of court and Judicial Council forms as necessary to implement an expedited procedure to authorize, by court order, a proposed conservatee’s health care provider to disclose confidential medical information about the proposed conservatee to a court investigator pursuant to federal medical information privacy regulations promulgated under the federal Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191).
(h) A superior court shall not be required to perform any duties imposed pursuant to the amendments to this section enacted by Chapter 493 of the Statutes of 2006 until the Legislature makes an appropriation identified for this purpose.

SEC. 8.SEC. 4.

 Section 1851.1 of the Probate Code is amended to read:

1851.1.
 (a) When a court issues an order provisionally granting a petition under Section 2002, the investigator appointed under Section 2002 shall promptly commence an investigation under this section.
(b) In conducting an investigation and preparing a report under this section, the court investigator shall do all of the following:
(1) Comply with the requirements of Section 1851.
(2) Conduct an interview of the conservator.
(3) Conduct an interview of the conservatee’s spouse or registered domestic partner, if any.
(4) Inform the conservatee of the nature, purpose, and effect of the conservatorship.
(5) Inform the conservatee and all other persons entitled to notice under subdivision (b) of Section 2002 of the right to seek termination of the conservatorship.
(6) Determine whether the conservatee objects to the conservator or prefers another person to act as conservator.
(7) Inform the conservatee of the right to attend the hearing under subdivision (c).
(8) Determine whether it appears that the conservatee is unable to attend the hearing and, if able to attend, whether the conservatee is willing to attend the hearing.
(9) Inform the conservatee of the right to be represented by legal counsel if the conservatee so chooses, and to have legal counsel appointed by the court if the conservatee is unable to retain legal counsel.
(10) Determine whether the conservatee wishes to be represented by legal counsel and, if so, whether the conservatee has retained legal counsel and, if not, the name of an attorney the conservatee wishes to retain. or plans to retain legal counsel. 
(11) If the conservatee has not retained legal counsel and does not plan to retain legal  counsel, determine whether the conservatee desires the court to appoint legal counsel.
(12) Determine whether the appointment of legal counsel would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee in any case where the conservatee does not plan to retain legal counsel and has not requested the appointment of legal counsel by the court.
(13) Consider each of the categories specified in paragraphs (1) to (5), inclusive, of subdivision (a) of Section 1821.
(14) Consider, to the extent practicable, whether the investigator believes the conservatee suffers from any of the mental function deficits listed in subdivision (a) of Section 811 that significantly impairs the conservatee’s ability to understand and appreciate the consequences of the conservatee’s actions in connection with any of the functions described in subdivision (a) or (b) of Section 1801 and identify the observations that support that belief.
(c) The court shall review the conservatorship as provided in Section 2002. The conservatee shall attend the hearing unless the conservatee’s attendance is excused under Section 1825. The court may take appropriate action in response to the court investigator’s report under this section.
(d) The court investigator’s report under this section shall be confidential as provided in Section 1851.
(e) Except as provided in paragraph (2) of subdivision (a) of Section 1850, the court shall review the conservatorship again one year after the review conducted pursuant to subdivision (c), and annually thereafter, in the manner specified in Section 1850.
(f) The first time that the need for a conservatorship is challenged by any interested person or raised on the court’s own motion after a transfer under Section 2002, whether in a review pursuant to this section or in a petition to terminate the conservatorship under Chapter 3 (commencing with Section 1860), the court shall presume that there is no need for a conservatorship. This presumption is rebuttable, but can only be overcome by clear and convincing evidence. The court shall make an express finding on whether continuation of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.
(g) If a duty described in this section is the same as a duty imposed pursuant to the amendments to Sections 1826, 1850, 1851, 2250, 2253, and 2620 and the addition of Sections 2250.4 and 2250.6 enacted by Chapter 493 of the Statutes of 2006, and the addition of Section 1051 enacted by Chapter 492 of the Statutes of 2006, a superior court shall not be required to perform that duty until the Legislature makes an appropriation identified for this purpose.

SEC. 12.SEC. 5.

 Section 2253 of the Probate Code is amended to read:

2253.
 (a) If a temporary conservator of the person proposes to fix the residence of the conservatee at a place other than that where the conservatee resided prior to the commencement of the proceedings, that power shall be requested of the court in writing, unless the change of residence is required of the conservatee by a prior court order. The request shall be filed with the petition for temporary conservatorship or, if a temporary conservatorship has already been established, separately. The request shall specify in particular the place to which the temporary conservator proposes to move the conservatee, and the precise reasons why it is believed that the conservatee will suffer irreparable harm if the change of residence is not permitted, and why no  means less restrictive of the conservatee’s liberty will not  suffice to prevent that harm.
(b) Unless the court court,  for good cause cause,  orders otherwise, the court investigator shall do all of the following:
(1) Interview the conservatee personally.
(2) Inform the conservatee of the nature, purpose, and effect of the request made under subdivision (a), and of the right of the conservatee to oppose the request, attend the hearing, be represented by legal counsel if the conservatee so chooses, and to have legal counsel appointed by the court if unable to obtain legal counsel.
(3) Determine whether the conservatee is unable to attend the hearing because of medical inability and, if able to attend, whether the conservatee is willing to attend the hearing.
(4) Determine whether the conservatee wishes to oppose the request.
(5) Determine whether the conservatee wishes to be represented by legal counsel at the hearing and, if so, whether the conservatee has retained legal counsel and, if not, the name of an attorney the proposed conservatee wishes to retain or whether the conservatee  whether the conservatee plans to retain legal counsel or  desires the court to appoint legal counsel.  
(6) If the conservatee does not plan to retain legal counsel and has not requested the appointment of legal counsel by the court, determine whether the appointment of legal counsel would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee.
(7) (6)  Determine whether the proposed change of place of residence is required to prevent irreparable harm to the conservatee and whether no a  means less restrictive of the conservatee’s liberty will not  suffice to prevent that harm.
(8) (7)  Report to the court in writing, at least two days before the hearing, concerning all of the foregoing, including the conservatee’s express communications concerning representation by legal counsel and whether the conservatee is not willing to attend the hearing and does not wish to oppose the request.
(c) Within seven days of the date of filing of a temporary conservator’s request to remove the conservatee from his or her  the conservatee’s  previous place of residence, the court shall hold a hearing on the request.
(d) The conservatee shall be present at the hearing except in the following cases:
(1) Where When  the conservatee is unable to attend the hearing by reason of medical inability. Emotional or psychological instability is not good cause for the absence of the conservatee from the hearing unless, by reason of that instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the conservatee.
(2) Where When  the court investigator has reported to the court that the conservatee has expressly communicated that the conservatee is not willing to attend the hearing and does not wish to oppose the request, and the court makes an order that the conservatee need not attend the hearing.
(e) If the conservatee is unable to attend the hearing because of medical inability, that inability shall be established (1) by the affidavit or certificate of a licensed medical practitioner or (2) if the conservatee is an adherent of a religion whose tenets and practices call for reliance on prayer alone for healing and is under treatment by an accredited practitioner of that religion, by the affidavit of the practitioner. The affidavit or certificate is evidence only of the conservatee’s inability to attend the hearing and shall not be considered in determining the issue of need for the establishment of a conservatorship.
(f) At the hearing, the conservatee has the right to be represented by counsel and the right to confront and cross-examine any witness presented by by,  or on behalf of of,  the temporary conservator and to present evidence on his or her  the conservatee’s  own behalf.
(g) The court may approve the request to remove the conservatee from the previous place of residence only if the court finds (1) that change of residence is required to prevent irreparable harm to the conservatee and (2) that no a  means less restrictive of the conservatee’s liberty will not  suffice to prevent that harm. If an order is made authorizing the temporary conservator to remove the conservatee from the previous place of residence, the order shall specify the specific place wherein the temporary conservator is authorized to place the conservatee. The temporary conservator may not be authorized to remove the conservatee from this state unless it is additionally shown that such  removal is required to permit the performance of specified nonpsychiatric medical treatment, consented to by the conservatee, which is essential to the conservatee’s physical survival. A temporary conservator who willfully removes a temporary conservatee from this state without authorization of the court is guilty of a felony.
(h) Subject to subdivision (e) of Section 2252, the court shall also order the temporary conservator to take all reasonable steps to preserve the status quo concerning the conservatee’s previous place of residence.
(i) A superior court shall not be required to perform any duties imposed pursuant to the amendments to this section enacted by Chapter 493 of the Statutes of  2006 until the Legislature makes an appropriation identified for this purpose.