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SB-724 Conservatees: legal counsel.(2021-2022)

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Date Published: 02/19/2021 09:00 PM
SB724:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 724


Introduced by Senator Allen

February 19, 2021


An act to amend Section 1471 of the Probate Code, relating to guardians and conservators.


LEGISLATIVE COUNSEL'S DIGEST


SB 724, as introduced, Allen. Conservatees: legal counsel.
The Guardianship-Conservatorship Law requires the court to appoint the public defender or private counsel to represent interests of a conservatee, proposed conservatee, or person alleged to lack legal capacity who is unable to retain legal counsel and requests the appointment of counsel to assist them in particular proceedings that include, among others, proceedings to establish a conservatorship or to remove the conservator, whether or not that person lacks or appears to lack legal capacity. The law also requires the court to appoint the public defender or private counsel in these proceedings to represent the interests of a conservatee or proposed conservatee who does not plan to retain legal counsel and has not requested the court to appoint legal counsel, if 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 based on information contained in the court investigator’s report or obtained from any other source, whether or not that person lacks or appears to lack legal capacity.
This bill would instead require the court, in the circumstances of the court determining that the appointment would be helpful to the resolution of the matter or is necessary to protect their interests based on information contained in the court investigator’s report or obtained from any other source, to appoint the public defender or private counsel if the conservatee or proposed conservatee has not retained legal counsel. The bill would generally require the court to allow representation by an attorney who a conservatee, proposed conservatee, or person alleged to lack legal capacity expresses any preference for, even if the attorney is not on the court’s list of court appointed attorneys.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 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 legal counsel and has not requested the court to appoint has not retained 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.
(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.