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

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Date Published: 05/20/2021 09:00 PM
SB724:v96#DOCUMENT

Amended  IN  Senate  May 20, 2021
Amended  IN  Senate  April 15, 2021
Amended  IN  Senate  April 05, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 724

Introduced by Senator Allen

February 19, 2021

An act to amend Sections 1051, 1470, 1471, 1826, 1850, 1850.5, 1851, 1851.1, 2250, 2250.4, 2250.6, 2253, and 2620 and 2253 of the Probate Code, relating to guardians and conservators.


LEGISLATIVE COUNSEL'S DIGEST


SB 724, as amended, Allen. Guardianships and conservatorships.
(1) 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 to appoint the public defender or private counsel if the conservatee or proposed conservatee has not retained legal counsel and does not plan to retain legal counsel. The bill would generally require the court to allow representation by an attorney for whom a conservatee, proposed conservatee, or person alleged to lack legal capacity expresses a preference, even if the attorney is not on the court’s list of court appointed attorneys. The bill would require the court, in an appeal or writ proceeding, to appoint counsel to advocate for the rights, interests, and stated wishes of a conservatee who is not represented by legal counsel. The bill would specify that the role of legal counsel for a conservatee, proposed conservatee, or person alleged to lack legal capacity is that of a zealous advocate, observing specified legal requirements.
Existing law authorizes the court to appoint private legal counsel for a ward, proposed ward, a conservatee, or a proposed conservatee in any other proceeding 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 interest.
This bill, instead, would authorize the court to appoint private legal counsel for a ward, proposed ward, a conservatee, a proposed conservatee, or a person alleged to lack legal capacity in any proceeding if the court determines the person is not otherwise represented by legal counsel.
(2) Existing law regulates the terms and conditions of guardianships and conservatorships. Existing law authorizes a court to refer certain issues relating to a conservatorship to a court investigator and prescribes the duties of an investigator in this regard, which include interviewing specified relatives of a proposed conservatee, conducting investigations of, and reporting to a court about, the appropriateness of a conservatorship, and, to the extent practicable, reviewing accountings with a conservatee. Existing law requires a court to review each limited conservatorship one year after the appointment of the conservator and biennially thereafter. Existing law permits specified parties to file a petition for an appointment of a temporary guardian or a temporary conservator and establishes requirements for the petition and for notice of the hearing on the petition. Existing law makes the requirement that a court implement these provisions contingent on the Legislature appropriating money for that purpose. determining if a proposed conservatee has not retained legal counsel or if a conservatee desires the court to appoint legal counsel.
This bill would require the court to implement the above provisions, irrespective of a specific appropriation. The bill would also require the court investigator to determine whether a conservatee plans to retain legal counsel if they have not already done so.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.Section 1051 of the Probate Code is amended to read:
1051.

(a)In the absence of a stipulation to the contrary between parties who have filed pleadings in a proceeding under this code, there shall be no ex parte communications between any party, or attorney for the party, and the court concerning a subject raised in those pleadings, except as permitted or required by law.

(b)Notwithstanding subdivision (a), in any case upon which the court has exercised its jurisdiction, the court may refer to the court investigator or take other appropriate action in response to an ex parte communication regarding either or both of the following: (1) a fiduciary, as defined in Section 39, about the fiduciary’s performance of their duties and responsibilities, and (2) a person who is the subject of a conservatorship or guardianship proceeding under Division 4 (commencing with Section 1400). Any action by the court pursuant to this subdivision shall be consistent with due process and the requirements of this code. The court shall disclose the ex parte communication to all parties and counsel. The court may, for good cause, dispense with the disclosure if necessary to protect the ward or conservatee from harm.

(c)The Judicial Council shall, on or before January 1, 2008, adopt a rule of court to implement this section.

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, 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.
(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 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 has not retained legal counsel and 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).
(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 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, 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 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 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 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 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) 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.
(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 their own conservator, if 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. 5.Section 1850 of the Probate Code is amended to read:
1850.

(a)Except as provided in subdivision (b), each conservatorship initiated pursuant to this part shall be reviewed by the court as follows:

(1)At the expiration of six months after the initial appointment of the conservator, the court investigator shall visit the conservatee, conduct an investigation in accordance with the provisions of subdivision (a) of Section 1851, and report to the court regarding the appropriateness of the conservatorship and whether the conservator is acting in the best interests of the conservatee regarding the conservatee’s placement, quality of care, including physical and mental treatment, and finances. The court may, in response to the investigator’s report, take appropriate action including, but not limited to:

(A)Ordering a review of the conservatorship pursuant to subdivision (b).

(B)Ordering the conservator to submit an accounting pursuant to subdivision (a) of Section 2620.

(2)One year after the appointment of the conservator and annually thereafter. However, at the review that occurs one year after the appointment of the conservator, and every subsequent review conducted pursuant to this paragraph, the court may set the next review in two years if the court determines that the conservator is acting in the best interest interests of the conservatee. In these cases, the court shall require the investigator to conduct an investigation pursuant to subdivision (a) of Section 1851 one year before the next review and file a status report in the conservatee’s court file regarding whether the conservatorship still appears to be warranted and whether the conservator is acting in the best interests of the conservatee. If the investigator determines, pursuant to this investigation, that the conservatorship still appears to be warranted and that the conservator is acting in the best interests of the conservatee regarding the conservatee’s placement, quality of care, including physical and mental treatment, and finances, a hearing or court action in response to the investigator’s report is not required.

(b)The court may, on its own motion or upon request by any interested person, take appropriate action, including, but not limited to, ordering a review of the conservatorship, including at a noticed hearing, and ordering the conservator to present an accounting of the assets of the estate pursuant to Section 2620.

(c)Notice of a hearing pursuant to subdivision (b) shall be provided to all persons listed in subdivision (b) of Section 1822.

(d)This chapter does not apply to either of the following:

(1)A conservatorship for an absentee as defined in Section 1403.

(2)A conservatorship of the estate for a nonresident of this state where the conservatee is not present in this state.

SEC. 6.Section 1850.5 of the Probate Code is amended to read:
1850.5.

(a)Notwithstanding Section 1850, each limited conservatorship for a developmentally disabled adult, as defined in subdivision (d) of Section 1801, shall be reviewed by the court one year after the appointment of the conservator and biennially thereafter.

(b)The court may, on its own motion or upon request by any interested person, take appropriate action, including, but not limited to, ordering a review of the limited conservatorship, including at a noticed hearing, at any time.

SEC. 7.Section 1851 of the Probate Code is amended to read:
1851.

(a)(1)If court review is required pursuant to Section 1850, the court investigator shall, without prior notice to the conservator except as ordered by the court for necessity or to prevent harm to the conservatee, visit the conservatee. The court investigator shall inform the conservatee personally that the conservatee is under a conservatorship and shall give the name of the conservator to the conservatee. The court investigator shall determine all of the following:

(A)If the conservatee wishes to petition the court for termination of the conservatorship.

(B)If the conservatee is still in need of the conservatorship.

(C)If the conservator is acting in the best interests of the conservatee. In determining if the conservator is acting in the best interests of the conservatee, the court investigator’s evaluation shall include an examination of the conservatee’s placement, the quality of care, including physical and mental treatment, and the conservatee’s finances. To the extent practicable, the investigator shall review the accounting with a conservatee who has sufficient capacity. To the greatest extent possible, the court investigator shall interview individuals set forth in paragraph (1) of subdivision (a) of Section 1826, in order to determine if the conservator is acting in the best interests of the conservatee.

(D)(i)If the 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 or 2209 of the Elections Code.

(ii)The conservatee shall not be disqualified from voting on the basis that the 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.

(2)If the court has made an order under Chapter 4 (commencing with Section 1870), the court investigator shall determine if the present condition of the conservatee is such that the terms of the order should be modified or the order revoked.

(3)Upon request of the court investigator, the conservator shall make available to the court investigator during the investigation for inspection and copying all books and records, including receipts and any expenditures, of the conservatorship.

(b)(1)The findings of the court investigator, including the facts upon which the findings are based, shall be certified in writing to the court not less than 15 days before the date of review. A copy of the report shall be delivered pursuant to Section 1215 to the conservator and to the attorneys of record for the conservator and conservatee at the same time it is certified to the court. A copy of the report, modified as set forth in paragraph (2), also shall be delivered pursuant to Section 1215 to the conservatee’s spouse or registered domestic partner, the conservatee’s relatives in the first degree, and, if there are no such relatives, to the next closest relative, unless the court determines that the delivery will harm the conservatee.

(2)Confidential medical information and confidential information from the California Law Enforcement Telecommunications System shall be in a separate attachment to the report and shall not be provided in copies sent to the conservatee’s spouse or registered domestic partner, the conservatee’s relatives in the first degree, and, if there are no such relatives, to the next closest relative.

(c)In the case of a limited conservatee, the court investigator shall recommend continuing or terminating the limited conservatorship.

(d)The court investigator may personally visit the conservator and other persons as necessary to determine if the conservator is acting in the best interests of the conservatee.

(e)The report required by this section shall be confidential and shall be made available only to parties, persons described in subdivision (b), persons given notice of the petition who have requested the report or who have appeared in the proceeding, their attorneys, and the court. The court shall have discretion at any other time to release the report if it would serve the interests of the conservatee. The clerk of the court shall limit disclosure of the report exclusively to persons entitled to the report under this section.

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 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. 9.Section 2250 of the Probate Code is amended to read:
2250.

(a)On or after the filing of a petition for appointment of a guardian or conservator, any person entitled to petition for appointment of the guardian or conservator may file a petition for appointment of:

(1)A temporary guardian of the person or estate, or both.

(2)A temporary conservator of the person or estate, or both.

(b)The petition shall state facts that establish good cause for appointment of the temporary guardian or temporary conservator. The court, upon that petition or other showing as it may require, may appoint a temporary guardian of the person or estate, or both, or a temporary conservator of the person or estate, or both, to serve pending the final determination of the court upon the petition for the appointment of the guardian or conservator.

(c)If the petitioner, proposed guardian, or proposed conservator is a professional fiduciary, as described in Section 2340, who is required to be licensed under the Professional Fiduciaries Act (Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code), the petition for appointment of a temporary guardian or temporary conservator shall include the following:

(1)The petitioner’s, proposed guardian’s, or proposed conservator’s proposed hourly fee schedule or another statement of proposed compensation from the estate of the proposed ward or proposed conservatee for services performed as a guardian or conservator. The petitioner’s, proposed guardian’s, or proposed conservator’s provision of a proposed hourly fee schedule or another statement of proposed compensation, as required by this paragraph, shall not preclude a court from later reducing the petitioner’s, proposed guardian’s, or proposed conservator’s fees or other compensation.

(2)Unless a petition for appointment of a guardian or conservator that contains the statements required by this paragraph is filed together with a petition for appointment of a temporary guardian or temporary conservator, both of the following:

(A)A statement of the petitioner’s, proposed guardian’s, or proposed conservator’s registration or license information.

(B)A statement explaining who engaged the petitioner, proposed guardian, or proposed conservator or how the petitioner, proposed guardian, or proposed conservator was engaged to file the petition for appointment of a temporary guardian or temporary conservator or to agree to accept the appointment as temporary guardian or temporary conservator and what prior relationship the petitioner, proposed guardian, or proposed conservator had with the proposed ward or proposed conservatee or the proposed ward’s or proposed conservatee’s family or friends.

(d)If the petition is filed by a party other than the proposed conservatee, the petition shall include a declaration of due diligence showing both of the following:

(1)Either the efforts to find the proposed conservatee’s relatives named in the petition for appointment of a general conservator or why it was not feasible to contact any of them.

(2)Either the preferences of the proposed conservatee concerning the appointment of a temporary conservator and the appointment of the proposed temporary conservator or why it was not feasible to ascertain those preferences.

(e)Unless the court for good cause otherwise orders, at least five court days before the hearing on the petition, notice of the hearing shall be given as follows:

(1)Notice of the hearing shall be personally delivered to the proposed ward if the proposed ward is 12 years of age or older, to the parent or parents of the proposed ward, and to any person having a valid visitation order with the proposed ward that was effective at the time of the filing of the petition. Notice of the hearing shall not be delivered to the proposed ward if the proposed ward is under 12 years of age. In a proceeding for temporary guardianship of the person, evidence that a custodial parent has died or become incapacitated, and that the petitioner or proposed guardian is the nominee of the custodial parent, may constitute good cause for the court to order that this notice not be delivered.

(2)Notice of the hearing shall be personally delivered to the proposed conservatee, and notice of the hearing shall be delivered pursuant to Section 1215 on the persons required to be named in the petition for appointment of conservator. If the petition states that the petitioner and the proposed conservator have no prior relationship with the proposed conservatee and have not been nominated by a family member, friend, or other person with a relationship to the proposed conservatee, notice of hearing shall be delivered pursuant to Section 1215 on the public guardian of the county in which the petition is filed.

(3)A copy of the petition for temporary appointment shall be delivered pursuant to Section 1215 with the notice of hearing.

(f)If a temporary guardianship is granted ex parte and the hearing on the general guardianship petition is not to be held within 30 days of the granting of the temporary guardianship, the court shall set a hearing within 30 days to reconsider the temporary guardianship. Notice of the hearing for reconsideration of the temporary guardianship shall be provided pursuant to Section 1511, except that the court may for good cause shorten the time for the notice of the hearing.

(g)Visitation orders with the proposed ward granted before the filing of a petition for temporary guardianship shall remain in effect, unless for good cause the court orders otherwise.

(h)(1)If a temporary conservatorship is granted ex parte, and a petition to terminate the temporary conservatorship is filed more than 15 days before the first hearing on the general petition for appointment of conservator, the court shall set a hearing within 15 days of the filing of the petition for termination of the temporary conservatorship to reconsider the temporary conservatorship. Unless the court otherwise orders, notice of the hearing on the petition to terminate the temporary conservatorship shall be given at least 10 days before the hearing.

(2)If a petition to terminate the temporary conservatorship is filed within 15 days before the first hearing on the general petition for appointment of conservator, the court shall set the hearing at the same time that the hearing on the general petition is set. Unless the court otherwise orders, notice of the hearing on the petition to terminate the temporary conservatorship pursuant to this section shall be given at least five court days before the hearing.

(i)If the court suspends powers of the guardian or conservator under Section 2334 or 2654 or under any other provision of this division, the court may appoint a temporary guardian or conservator to exercise those powers until the powers are restored to the guardian or conservator or a new guardian or conservator is appointed.

(j)If for any reason a vacancy occurs in the office of guardian or conservator, the court, on a petition filed under subdivision (a) or on its own motion, may appoint a temporary guardian or conservator to exercise the powers of the guardian or conservator until a new guardian or conservator is appointed.

(k)On or before January 1, 2008, the Judicial Council shall adopt a rule of court that establishes uniform standards for good cause exceptions to the notice required by subdivision (e), limiting those exceptions to only cases when waiver of the notice is essential to protect the proposed conservatee or ward, or the estate of the proposed conservatee or ward, from substantial harm.

SEC. 10.Section 2250.4 of the Probate Code is amended to read:
2250.4.

The proposed temporary conservatee shall attend the hearing except in the following cases:

(a)If the proposed temporary conservatee is out of the state when served and is not the petitioner.

(b)If the proposed temporary conservatee is unable to attend the hearing by reason of medical inability.

(c)If the court investigator has visited the proposed conservatee prior to the hearing and the court investigator has reported to the court that the proposed temporary conservatee has expressly communicated that all of the following apply:

(1)The proposed conservatee is not willing to attend the hearing.

(2)The proposed conservatee does not wish to contest the establishment of the temporary conservatorship.

(3)The proposed conservatee does not object to the proposed temporary conservator or prefer that another person act as temporary conservator.

(d)If the court determines that the proposed conservatee is unable or unwilling to attend the hearing, and holding the hearing in the absence of the proposed conservatee is necessary to protect the conservatee from substantial harm.

SEC. 11.Section 2250.6 of the Probate Code is amended to read:
2250.6.

(a)Regardless of whether the proposed temporary conservatee attends the hearing, the court investigator shall do all of the following prior to the hearing, unless it is not feasible to do so, in which case the court investigator shall comply with the requirements set forth in subdivision (b):

(1)Interview the proposed conservatee personally. The court investigator also shall do all of the following:

(A)Interview the petitioner and the proposed conservator, if different from the petitioner.

(B)To the greatest extent possible, interview the proposed conservatee’s spouse or registered domestic partner, relatives within the first degree, neighbors, and, if known, close friends.

(C)To the extent possible, interview the proposed conservatee’s relatives within the second degree, as set forth in subdivision (b) of Section 1821, before the hearing.

(2)Inform the proposed conservatee of the contents of the citation, of the nature, purpose, and effect of the temporary conservatorship, 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 whether 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)Determine whether the proposed conservatee wishes to contest the establishment of the conservatorship.

(5)Determine whether the proposed conservatee objects to the proposed conservator or prefers another person to act as conservator.

(6)Report to the court, in writing, concerning all of the foregoing.

(b)If not feasible before the hearing, the court investigator shall do all of the following within two court days after the hearing:

(1)Interview the conservatee personally. The court investigator also shall do all of the following:

(A)Interview the petitioner and the proposed conservator, if different from the petitioner.

(B)To the greatest extent possible, interview the proposed conservatee’s spouse or registered domestic partner, relatives within the first degree, neighbors, and, if known, close friends.

(C)To the extent possible, interview the proposed conservatee’s relatives within the second degree, as set forth in subdivision (b) of Section 1821.

(2)Inform the conservatee of the nature, purpose, and effect of the temporary conservatorship, as well as the right of the conservatee to oppose the proposed general conservatorship, 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.

(c)If the investigator does not visit the conservatee until after the hearing at which a temporary conservator was appointed, and the conservatee objects to the appointment of the temporary conservator, or requests an attorney, the court investigator shall report this information promptly, and in no event more than three court days later, to the court. Upon receipt of that information, the court shall proceed with appointment of an attorney as provided in Chapter 4 (commencing with Section 1470) of Part 1.

(d)If it appears to the court investigator that the temporary conservatorship is inappropriate, the court investigator shall immediately, and in no event more than two court days later, provide a written report to the court so the court can consider taking appropriate action on its own motion.

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 means less restrictive of the conservatee’s liberty will not suffice to prevent that harm.
(b) Unless the court, for good 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, whether the conservatee plans to retain legal counsel or desires the court to appoint legal counsel.
(6) Determine whether the proposed change of place of residence is required to prevent irreparable harm to the conservatee and whether a means less restrictive of the conservatee’s liberty will not suffice to prevent that harm.
(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 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) 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) 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, or on behalf of, the temporary conservator and to present evidence on 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 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 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.

SEC. 13.Section 2620 of the Probate Code is amended to read:
2620.

(a)At the expiration of one year from the time of appointment and thereafter not less frequently than biennially, unless otherwise ordered by the court to be more frequent, the guardian or conservator shall present the accounting of the assets of the estate of the ward or conservatee to the court for settlement and allowance in the manner provided in Chapter 4 (commencing with Section 1060) of Part 1 of Division 3. By 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, and the California Society of Certified Public Accountants, shall develop a standard accounting form, a simplified accounting form, and rules for when the simplified accounting form may be used. After January 1, 2008, all accountings submitted pursuant to this section shall be submitted on the Judicial Council form.

(b)The final court accounting of the guardian or conservator following the death of the ward or conservatee shall include a court accounting for the period that ended on the date of death and a separate accounting for the period subsequent to the date of death.

(c)Along with each court accounting, the guardian or conservator shall file supporting documents, as provided in this section.

(1)For purposes of this subdivision, the term “account statement” shall include any original account statement or verified electronic statement from any institution, as defined in Section 2890, or any financial institution, as defined in Section 2892, in which money or other assets of the estate are held or deposited. A court may also accept a computer-generated printout of an original verified electronic statement if the guardian or conservator verifies that the statement was received in electronic form and printed without alteration. A verification shall be executed by the guardian or conservator pursuant to Section 2015.5 of the Code of Civil Procedure.

(2)The filing shall include all account statements showing the account balance as of the closing date of the accounting period of the court accounting. If the court accounting is the first court accounting of the guardianship or conservatorship, the guardian or conservator shall provide to the court all account statements showing the account balance immediately preceding the date the conservator or guardian was appointed and all account statements showing the account balance as of the closing date of the first court accounting.

(3)If the guardian or conservator is a private professional or licensed guardian or conservator, the guardian or conservator shall also file all original account statements or verified electronic statements, as described in paragraph (1), showing the balance as of all periods covered by the accounting.

(4)The filing shall include the original closing escrow statement received showing the charges and credits for any sale of real property of the estate.

(5)If the ward or conservatee is in a residential care facility or a long-term care facility, the filing shall include the original bill statements for the facility.

(6)This subdivision shall not apply to the public guardian if the money belonging to the estate is pooled with money belonging to other estates pursuant to Section 2940 and Article 3 (commencing with Section 7640) of Chapter 4 of Part 1 of Division 7. This section does not affect any other duty or responsibility of the public guardian with regard to managing money belonging to the estate or filing accountings with the court.

(7)If any document to be filed or lodged with the court under this section contains the ward’s or conservatee’s social security number or any other personal information regarding the ward or conservatee that would not ordinarily be disclosed in a court accounting, an inventory and appraisal, or other nonconfidential pleadings filed in the action, the account statement or other document shall be attached to a separate affidavit describing the character of the document, captioned “CONFIDENTIAL FINANCIAL STATEMENT” in capital letters. Except as otherwise ordered by the court, the clerk of the court shall keep the document confidential except to the court and subject to disclosure only upon an order of the court. The guardian or conservator may redact the ward’s or conservatee’s social security number from any document lodged with the court under this section.

(8)Courts may provide by local rule that the court shall retain all documents lodged with it under this subdivision until the court’s determination of the guardian’s or conservator’s account has become final, at which time the supporting documents shall be returned to the depositing guardian or conservator or delivered to any successor appointed by the court.

(d)Each accounting is subject to random or discretionary, full or partial review by the court. The review may include consideration of any information necessary to determine the accuracy of the accounting. If the accounting has any material error, the court shall make an express finding as to the severity of the error and what further action is appropriate in response to the error, if any. Among the actions available to the court is immediate suspension of the guardian or conservator without further notice or proceedings and appointment of a temporary guardian or conservator or removal of the guardian or conservator pursuant to Section 2650 and appointment of a temporary guardian or conservator.

(e)The guardian or conservator shall make available for inspection and copying, upon reasonable notice, to any person designated by the court to verify the accuracy of the accounting, all books and records, including receipts for any expenditures, of the guardianship or conservatorship.