BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1363 A
Assembly Member Jones B
As Amended June 7, 2006
Hearing Date: June 20, 2006 1
Probate Code; Welfare & Institutions Code 3
GMO:cjt 6
3
SUBJECT
Conservatorships
DESCRIPTION
This bill would enact the Omnibus Conservatorship and
Guardianship Reform Act (Act) of 2006.
This bill would establish additional requirements on the
court's oversight of conservatorships. Among the reforms
contained in this Act are the following:
(1) It would establish more frequent court reviews of a
conservatorship, at
noticed hearings, and expand the classes of persons
entitled to notice.
(2) It would require more frequent accountings and require
court review and
verification of each accounting.
(3) It would prohibit a court from reducing the amount of
a bond in a
conservatorship proceeding without good cause.
(4) It would impose new duties on court investigators,
including expanded evaluations, new and more frequent
investigations, expedited investigations for temporary
conservatorships, and interviews of an expanded class of
persons connected to the conservatee or proposed
conservatee.
(5) It would prohibit the compensation of a guardian or
conservator from the estate of the conservatee or ward
(more)
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for costs or fees incurred in unsuccessfully opposing a
petition.
(6) It would require the Public Guardian of a county to
apply for appointment as guardian or conservator if there
is an imminent threat to the proposed conservatee's
health or safety of the person's estate, and require the
court to order the Public Guardian to apply for
appointment as conservator for a resident of the county
where it appears there is no person qualified and it is
in the proposed conservatee's best interests that the
appointment is made.
(7) It would require the Judicial Council to develop
self-help educational programs and establish court-based
assistance centers for self-represented non-professional
conservators or guardians, as specified.
(8) It would require the Judicial Council to establish
qualifications and educational requirements for any
court-employed staff attorney, examiner, investigator, or
court-appointed attorney and to require educational
classes for these attorneys, probate judges, and public
guardians.
(9) It would require the Judicial Council to establish
conservatorship accountability measures and to report
annually to the Legislature and the Conservator Ombudsman
specified data to be compiled by the courts and reported
to the Judicial Council on a quarterly basis.
This bill would establish the Office of the Conservatorship
Ombudsman in the Department of Aging, and specify the
duties and responsibilities of the Ombudsman. Among those
duties are the taking, reviewing and investigation of
complaints relative to conservatorships, and the collection
and analysis of data relative to those complaints. Records
kept by the Office of the Ombudsman would be confidential
unless disclosure is required.
The bill would eliminate the Statewide Registry of
Professional Conservators, Professional Guardians, and
Professional Trustees, deferring to the Board of
Professional Fiduciaries to be established by the
Professional Fiduciaries Act (SB 1550, Figueroa, of this
year) instead.
The bill contains legislative findings and declarations
relating to the state of the conservatorship system in
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California and the need to address failings of the system.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
The U.S. Bureau of Census has estimated that by the year
2050, the number of people over the age of 65 in the United
States will more than double to 80 million. In California,
the Judicial Council estimates that 5,500 new probate
conservatorship cases are filed each year and there is an
active caseload of approximately 33,000 cases. Some 500
conservators oversee more than $1.5 billion in assets.
Over the last seven years the Legislature has enacted
numerous bills relating to financial fraud and abuse
perpetrated on the elderly and dependent adults by their
conservators or guardians.
Of those who are now frail and dependent on another such as
a conservator to manage their affairs, many suffer from
Alzheimer's disease, and other age-related dementia. As
the baby boomers approach an age when they may be incapable
of taking care of themselves, the number of conservatorship
cases will increase. Because conservators and guardians
have complete authority over the personal and financial
affairs of conservatees and wards, it is essential that
adequate protections be in place to prevent abuse.
In November 2005, a series of articles published in the Los
Angeles Times highlighted numerous flaws in the
conservatorship system in the state. The Senate and
Assembly Judiciary Committees held public informational
hearings following publication of those articles, to
further focus on systemic problems and thus fashion
proposals for effective reforms. The complaints lodged by
conservatees and their families, who felt victimized by
unscrupulous conservators, and by advocates for the elderly
and dependent adults centered on a couple of points, one of
which is the inadequacy of court oversight on conservators
and conservatorship activities. The courts, on the other
hand, complained of the lack of resources for court
investigators who are the actual field inspectors for
probate conservatees, so that even the currently required
reports are sometimes delayed. Although it was generally
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agreed upon by legal practitioners, advocates, county
counsels, and the courts that the conservatorship system is
in and of itself not deficient in terms of policy, process,
procedures and safeguards, all agreed that certain problems
may be ameliorated expeditiously if only more oversight is
exercised by the courts through court investigators.
Indeed, many of the complaints lodged by the conservatees
and their families could be avoided or detected early by
court investigators reporting on their cases more
frequently and more completely. Thus, it became obvious,
from those hearings, that lack of resources (i.e., court
investigators and probate examiners) is a real problem that
must be tackled.
In February 2006, Chief Justice Ron George appointed a
Probate Conservatorship Task Force to evaluate the court's
role in the conservatorship system and to make
recommendations for reform, if necessary. Composed of
representatives from the courts, advocacy organizations,
the Attorney General, legislative staff, practitioners in
the conservatorship area, conservators, and other judicial
officers, the Task Force has held several public hearings
and hopes to present its proposals by the fall.
Meanwhile, the bills introduced in both the Senate and the
Assembly this year hope to ameliorate the most troublesome
aspects of the conservatorship system as it operates today.
AB 1363 (Jones) contains numerous substantive provisions
that reform critical aspects of the courts' oversight of
conservatorships. SB 1550 (Figueroa) would license and
regulate professional guardians, conservators and trustees
as fiduciaries. SB 1716 (Bowen) would expand the scope of
evaluations conducted by court investigators and establish
a protocol for ex parte communication with the court about
a conservatorship. SB 1116 (Scott) deals with the sale of
a conservatee's personal residence. The three Senate bills
are scheduled to be heard in the Assembly Judiciary
Committee today. AB 1363 is double-joined to each of the
Senate bills.
CHANGES TO EXISTING LAW
Existing law provides a comprehensive scheme for the
establishment, oversight, and termination of
conservatorships and guardianships.
AB 1363 (Jones)
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1. Judicial Council
Existing law requires the Judicial Council to establish
by rule educational requirements for private professional
conservators, requires private professional conservators
and guardians to meet those educational requirements
prior to appointment, and prohibits private professional
conservators or guardians from registering with the
Statewide Registry if they have failed to complete the
educational requirements.
This bill would require the Judicial Council to adopt
rules of court that:
(1) develop educational programs for nonlicensed
conservators and guardians, including user-friendly
self-help training programs;
(2) specify qualifications and educational requirements
for its court-employed staff attorneys, examiners,
investigators, or court-appointed attorneys, and
judges regularly assigned to hear probate matters;
(3) provide assistance to self-representing
nonprofessional conservators or guardians, including
assistance in completing forms and referrals to proper
community agencies;
(4) develop conservatorship accountability measures for
use by each court, and collect data, as specified, to
be reported by the court to the Judicial Council on a
quarterly basis and the Judicial Council to the
Legislature and the Conservator Ombudsman annually;
(5) develop appropriate forms as required by new
mandates for hearings and notices;
(6) require uniform standards of conduct for actions of
conservators and guardians to ensure the actions taken
are appropriate and to prevent risk or loss or harm to
the conservatees or wards, including standards for
determining fees that may be charged to conservatees
or wards and standards for asset management; and
(7) develop standard accounting forms, a simplified
accounting form, and rules for when the simplified
accounting form may be used.
All new mandates on the Judicial Council carry an
effective date of January 1, 2008.
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2. Court investigator duties
Existing law requires a court investigator to conduct
evaluations of a conservatorship at various stages of the
proceedings: prior to the noticed hearing for appointment
of a conservator and at designated intervals during the
conservatorship. Existing law requires the court
investigator to make specified findings and certify the
findings in a written report to the court, copies of
which are mailed to the conservator and the attorneys of
record for the conservator and conservatee at the same
time it is certified to the court.
This bill would add, to the tasks currently undertaken by
a court investigator prior to the hearing on appointment
of a conservator and at various times during the
conservatorship, various duties, including interviewing
"to the greatest extent possible," the proposed
conservatees relatives to the second degree, neighbors,
and close friends.
This bill would require the court investigator to inform
the conservatee of the nature, purpose and effect of a
temporary conservatorship, as well as the conservatee's
rights relative to the proposed general conservatorship.
This bill would require the court investigator, if the
investigator does not visit the conservatee until after a
temporary conservatee had been appointed and the
conservatee objects to the conservatorship or requests an
attorney, to report this matter to the court within three
days so that the court may proceed with appointment of an
attorney as provided under existing law.
This bill would require the court investigator, if it
appears that the temporary conservatorship is
inappropriate, to immediately, but no more than two court
days later, inform the court of this determination, so
that the court may take appropriate action.
This bill would require a conservator to make available
to a court investigator during the investigation for
inspection and copying all books and records (including
receipts and expenditures) of the conservatorship.
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This bill would require copies of the court
investigator's report to be mailed to the conservatee's
spouse or 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 mailing will result in harm to the conservatee.
3. Court review
Existing law requires each conservatorship to be reviewed
by the court one year after the appointment of the
conservator and every two years (biennially) thereafter,
except for a conservatorship for an absentee and for a
conservatorship of the estate of a nonresident who is not
present in the state. [Prob. C. 1850.]
This bill would require that a conservatorship be
reviewed by the court at a noticed hearing six months
after appointment of the conservator and annually
thereafter.
4. Transfer of proceedings to a new venue
Existing law permits the court in which a conservatorship
or guardianship proceeding is pending to transfer the
proceeding to another county within the state, upon
petition therefor, and if the transfer is for the best
interests of the ward or conservatee. [Prob. C. 2211.]
This bill would require the court to order the transfer
if the ward or conservatee has moved his or her residence
to another county within the state where a person
required to receive notice of the conservatorship
resides, unless the court determines that the transfer
will harm the conservator.
5. Notices and noticing
Existing law requires that notice of hearings be made at
specified times prior to specific conservatorship
hearings, and that notices be mailed to specified
individuals for different types of hearings.
This bill would make changes to various types of notices,
expand the list of persons required to receive notice,
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and require that certain notices be made upon the
happening of specified events.
Existing law provides that a request for special notice
filed with the court may be modified or withdrawn and is
deemed to be withdrawn three years from the date it was
served. [Prob. C. 2700.]
This bill would delete the presumption that the request
is deemed withdrawn three years after it was filed and
served.
6. Bonds of conservators and guardians
Existing law requires every person appointed as
conservator or guardian, unless excepted by the court, to
give a bond approved by the court prior to the issuance
of letters. The bond is for the benefit of the ward or
conservatee and all persons interested in the estate and,
unless varied by the court upon a showing of good cause,
must constitute the sum of the value of the personal
property of the estate, the probable annual gross income
of all of the property of the estate, and the sum of the
probable annual gross payments to the estate as
specified. [Prob. C. 2320.]
This bill would add, to the sum constituting the bond
that a court must require except for good cause shown,
the cost of recovery to collect on the bond, including
attorney's fees and costs.
Existing law prohibits the court from waiving or reducing
the bond required of conservators without good cause, and
states that good cause may not be established by the
conservator having filed a bond in another or prior
proceeding.
This bill would require the court, in determining whether
good cause exists to waive or reduce a bond, to determine
that the conservatee will not suffer harm as a result of
the waiver or reduction of the bond.
7. Fiduciary duties of conservator; presentation of
accountings
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a. Where there may be a financial interest of the
conservator
Existing law prohibits a guardian or conservator, in
exercising his or her powers, from hiring or referring
any business to an entity in which he or she has a
financial interest, except upon authorization of the
court after disclosure of the financial interest.
[Prob. C. 2401.]
This bill would make the above prohibition
inapplicable to a trust company acting as a
conservator or guardian, but instead would prohibit
the trust company, unless authorized by the court,
from investing in securities of the trust company, its
affiliate or subsidiary or in other securities from
which the trust company receives a financial benefit,
or in a mutual fund other than a specified mutual fund
to which the trust company provides services for
compensation. This bill would require the trust
company to disclose to the court its financial
interests prior to authorization.
b. Filing of inventory and appraisal
Existing law requires the conservator or guardian to
file with the court within 90 days after appointment
an inventory and appraisal of the estate, made as of
the date of the appointment. The inventory must be
subscribed to under oath, and the appraisal may be
done by the conservator in the same as a personal
representative of an estate. [Prob. C.
2610.]
This bill would require the conservator to mail the
inventory and appraisal, along with notice of how to
file an objection, to the conservatee, to the
attorneys of record for the ward or conservatee, the
conservatee's spouse or domestic partner, the
conservatee's relatives to the first degree and, if
there are no such relatives, to the next closest
relative, unless the court determines that the mailing
will result in harm to the conservatee.
c. Accountings of the conservatorship or guardianship
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estate
Existing law requires the guardian or conservator, at
the end of one year from the date of appointment, and
thereafter biennially, unless otherwise ordered by the
court, to present the accounting of the assets of the
estate of the ward or conservatee to the court for
settlement and allowance.
This bill would require the first accounting to be
made at six months after the appointment and annually
thereafter, unless otherwise ordered by the court to
be more frequently presented. Court forms would be
developed for the accountings.
Existing law requires the accounting to be accompanied
by supporting documents, including all original
account statements from any financial or deposit
institution in which moneys or other assets of the
estate are held or deposited, for the period of the
accounting. [Prob. C. 2620.]
This bill would require the accounting to include all
supporting documents for both disbursing and
non-disbursing accounts in any financial or depositary
institution in which moneys or assets of the estate
are held.
This bill would subject each accounting to random and
full review and verification by the court, including a
review of all documents necessary to determine the
accuracy of the accounting.
This bill would require the court to take one of
several courses of action, if the review and
verification revealed any material error in an
accounting: (1) remove the conservator as provided in
existing law; (2) hold a hearing to determine the
severity of the error and whether the conservator or
guardian should be removed as provided; or (3) make a
finding that the error was harmless.
Existing law provides that if a guardian or
conservator fails to file an accounting, the court
shall by written notice direct the conservator or
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guardian and their attorney of record to file an
accounting and to set the accounting for a hearing
before the court within 60 days of the date of the
notice or, if the conservator or guardian is a public
agency, within 120 days of the date of the notice.
[Prob. C. 2620.2.]
This bill would require the hearing on the accounting,
when directed by the court as prescribed, to be within
30 days of the date of the notice, or, 45 days, if the
conservator or guardian is a public agency.
Existing law prescribes certain actions a court may
take if the conservator or guardian fails to file an
accounting as required or after direction by the court
within the prescribed time. The court may remove the
conservator, issue and serve a citation and order the
conservator or guardian to show cause why he or she
should not be punished for contempt, suspend the
powers of the conservator or guardian and appoint a
temporary conservator or guardian, or appoint legal
counsel to represent the conservatee, as prescribed.
[Prob. C. 2620.2(b).]
This bill would require the court to take the same
actions if the conservator or guardian does not file
an accounting with all the supporting documentation,
and require the court to report the action taken to
the board established to regulate professional
fiduciaries.
This bill would authorize the court, on an ex parte
application and upon a showing of good cause and that
the estate is adequately bonded, to extend the time to
file an accounting, not to exceed an additional 30
days after the expiration of the deadline for filing
an accounting, if the conservator or guardian is
exempt from the licensing requirements for
professional fiduciaries.
8. Limitation on compensation to guardian or
conservator
Existing law requires that a conservator or guardian
be allowed payment for reasonable expenses incurred in
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the exercise of the powers and performance of his or
her duties (including costs of surety bonds furnished,
reasonable attorney's fees, and other just and
reasonable compensation for services rendered to the
conservatee or ward) and for other reasonable expenses
as specified. [Prob. C. 2623.]
Existing law provides that, at any time after filing
of the inventory and appraisal but not before 90 days
after the issuance of the letters of appointment to a
conservator or guardian, the court, upon petition and
a noticed hearing, shall order just and reasonable
compensation to the guardian or conservator of the
person or estate for services rendered up to that
time, as well as compensation to the attorney for
services rendered to the guardian or conservator prior
to the date of appointment of the conservator or
guardian and other services provided thereafter. All
compensation is charged to the estate. [Prob. C.
2640, 2641.]
This bill would prohibit compensation from the estate
to the conservator or guardian for any costs or fees
that the guardian or conservator incurred in
unsuccessfully opposing a petition, or other request
or action made on behalf of a ward or conservatee,
unless the court determines that the opposition was
made in good faith, based on the best interests of the
ward of conservatee.
Existing law authorizes a person who files a timely
petition for appointment as conservator but was not
appointed to file a petition with the court for an
order fixing and allowing compensation and
reimbursement of costs, including compensation to the
person's attorney. Existing law authorizes the court
to allow just and reasonable compensation after
noticed hearing.
This bill would require the court to determine that
the failed petition was filed in the best interests of
the conservatee.
Existing law permits the ward or conservatee, the
spouse or domestic partner of the ward or conservatee,
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or any relative or friend of the ward or conservatee,
or any interested person to petition the court for the
removal of the guardian or conservator for cause at a
noticed hearing. [Prob. C. 2650, 2651, 2652.]
This bill would provide that if the court removes the
guardian or conservator for cause, the court shall
award the petitioner his or her costs, including
expenses of litigation and attorney's fees, incurred.
This bill would provide that the guardian or
conservator so removed for cause may not deduct from
or charge to the estate his or her costs of litigation
and is personally liable for those costs and expenses.
9. Public guardians
Existing law permits the public guardian of a county
to apply for appointment as guardian or conservator of
the person, estate, or person and estate, of a person
who is a resident of the county when the person
requires a conservator or guardian, there is no one
else qualified and willing to act, and appointment is
in the best interest of the person. Existing law
requires the public guardian to so apply when ordered
by the court upon petition by an interested person or
on the court's own motion. [Prob. C. 2920.]
This bill would require the public guardian to apply
for appointment as conservator or guardian under the
circumstances described above, if there is an imminent
threat to the person's health or safety or to the
person's estate. Otherwise, the public guardian may
apply for appointment in all other cases.
This bill would require the public guardian to begin
an investigation within two business days of receiving
a referral for conservatorship or guardianship.
10. The Conservatorship Ombudsman
Existing law establishes in the Department of Aging a
Long-Term Care Ombudsman Program in compliance with
the Older Americans Act and pursuant to a grant from
the federal government.
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Existing law describes the structure, powers, and
duties of the Long-Term Care Ombudsman, and defines
its main responsibility as the provision of effective
assistance to residents, patients, and clients of
long-term care facilities in the assertion of their
civil and human rights under the Older Americans Act.
This bill would establish in the Department of Aging
an Office of the Conservatorship Ombudsman (OCO) and
give that office the following powers and
responsibilities with respect to conservatorships:
a. The OCO shall establish a statewide reporting
system to collect and analyze data relative to
complaints regarding conservatorships in order to
identify and resolve significant problems, and
submit the data annually to the Calfornia Board of
Professional Fiduciaries, the Judicial Council, and
the Legislature.
b. The OCO shall provide to the public information
and assistance regarding conservators.
c. The OCO shall take complaints communicated by or
on behalf of consrvatees and review the complaints
to determine if they require further investigation
and, if so, refer the complaint to the relevant
court, the Judicial Council, the Calfiornia Board of
Professional Fiduciaries, the Attorney General, the
relevant district attorney, or the relevant office
of Adult Protective Services as appropriate. Those
agencies would be required to investigate the
complaint forwarded by the OCO and would be required
to take all appropriate steps as warranted by the
investigations and in a timely manner report back to
the OCO on its findings and actions.
d. The OCO shall report back to the complainant
whatever resolution is carried out, and if the OCO
did not seek resolution of the complaint, the OCO
shall notify the complainant in writing.
The bill would authorize the OCO to hire experts and
employees and to access confidential records in order
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to execute its duties and would make all records and
files of the office confidential. The OCO may not be
required by the court to testify, except under
specified circumstances. All communication by the OCO
or its representatives related to its duties and
functions shall be privileged.
The bill would confer on the OCO, its employees
immunity from liability for good faith performance of
their duties.
This bill is joined to three bills: SB 1116 (Scott), SB
1550 (Figueroa) and SB 1716 (Bowen). These bills are
discussed in the Background.
COMMENT
1. Need for the bill
This bill is co-sponsored by the Bet Tzedek Legal
Services, the California Alliance for Retired Americans
(CARA), and the Older Women's League.
CARA states:
Recent articles in the Los Angeles Times have
once again exposed serious problems in the
systems that are supposed to protect people,
especially seniors, when they cannot fend for
themselves?[t]he articles and [subsequent]
hearings have exposed a broken system which
allowed financial, and yes physical abuse in some
cases, to be perpetrated on helpless people by
those hired to protect these same people?AB 1363
will go a long way to correcting many of the
problems in the current inadequate system.
The Judicial Council, while supporting many of the
provisions in the bill, prefers to take a more cautious
approach with regards to the effect of sweeping reforms
on the current resources of the court:
The Judicial Council supports [the bill],
contingent upon the resolution of several areas
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of concern?The bill contains a variety of new
mandates that would require additional resources
for the judicial branch, including but not
limited to increasing the frequency of probate
conservatorship reviews and court reviews of
accountings, expanding the duties and
responsibilities of court investigators at the
temporary and general conservatorship phases of
the process, and requiring each court to provide
self-help assistance to non-professional
guardians and conservators?[W]e support many of
the provisions in the bill provided sufficient
new funding is made available to cover the costs
of complying with new mandates on the courts and
the council.
In fact, many of the provisions in the bill that the
Judicial Council supports may be implemented by adopting
statewide court rules and local rules of court, without
legislation. The Probate Conservatorship Task Force,
which is conducting a comprehensive evaluation of the
court's role in the problems highlighted by the Los
Angeles Times and other articles, expects to deliver its
recommendations to the Legislature by this fall. In the
meantime, several bills that address some glaring gaps in
the oversight function of the court that may be
implemented without the need for a major infusion of
funds into the judiciary are moving through the
Legislature.
SHOULD THIS BILL AWAIT THE RECOMMENDATIONS OF THE
JUDICIAL COUNCIL'S PROBATE CONSERVATORSHIP TASK FORCE?
In contrast to AB 1363, the three Senate bills address
areas that are not under consideration by the Probate
Conservatorship Task Force (in fact they have been
endorsed by the Task Force). SB 1550 would enact the
Professional Fiduciaries Act, to license and regulate
professional fiduciaries, including professional
conservators, professional guardians and professional
trustees as well as agents under durable powers of
attorney. SB 1116 would affect only the factors to be
considered when a conservatee's residence is proposed to
be sold, and requires the use of the appraisals as
currently required under decedents' administration. SB
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1716 would direct the Judicial Council to adopt a rule of
court related to ex parte communications in
conservatorship cases and would also authorize the court
to order a court review at any time (other than the
regularly scheduled reviews under existing law).
2. The role of the Conservatorship Ombudsman
Of all the ideas for reform presented by this bill, the
one that would appear to yield the least effective result
is the creation of the Office of the Conservatorship
Ombudsman.
Much of the language in the bill was literally taken word
for word from the statutes establishing the Long-Term
Care Ombudsman Program, which were enacted in compliance
with the requirements of the federal Older Americans Act
for purposes of receiving federal grants. It is
important to understand the role, powers and structure of
the Long-Term Care Ombudsman (LTCO) in order to assess
whether or not a similar creature would in fact help
conservatees and their families in confronting many of
the problems that have apparently been brewing for a long
time.
The LTCO was created "to effectively assist residents,
patients, and clients of long-term care facilities in the
assertion of their civil and human rights." Thus, the
LTCO is imbued with the power not only to promote the
development, coordination and utilization of resources to
meet the needs of older individuals and to establish "a
statewide uniform reporting system to collect and analyze
data relative to complaints and conditions in long term
care facilities," but also the power to directly
investigate and actually resolve complaints and concerns
communicated by or on behalf of patients, residents or
clients of long-term care facilities. In other words,
when a person files a complaint with the LCTO, there is
an expectation that the complaint will be resolved in a
short period and there is no need to take other action
because the LCTO has the power to resolve a complaint.
In fact it does have that power, and it can resolve
issues because it is part of the executive branch of
government and has the ability to exert oversight
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functions and powers over local long-term facilities
because they are licensed and regulated by various state
agencies.
The Conservatorship Ombudsman, on the other hand, would
do nothing more than collect data about complaints and
basically refer out whatever complaints they receive
because under the bill, and in fact, they will have no
oversight jurisdiction over the courts, court
investigators, judges, attorneys, conservators,
conservatees, or the conservatee's families. Even
assuming that the OCO is equipped to investigate and
ascertain facts pertaining to a complaint, proposed
Section 9807 states:
If the office determines that further investigation is
required, the office shall refer the complaint to the
relevant court, the Judicial Council, the California
Board of Professional Fiduciaries, the Attorney
General, the relevant district attorney, or the
relevant office of Adult Protective Services, as
appropriate, which shall investigate the complaint,
take all appropriate steps as warranted by the
investigations, and report its findings to the office
in a timely manner.
It would indeed be tragic if a family member lodges an
objection to the appointment of a temporary or permanent
conservator with the OCO and waits for a resolution, when
what should have been done is to file a timely objection
in court or contact the court investigator.
SB 1716 (Bowen) would require the Judicial Council to
adopt rules of court to deal with a suggestion made in
the Los Angeles Times articles and the subsequent
hearings held by the Legislature on conservatorships.
The suggestion was that ex parte communications regarding
a conservator's performance of his or her duties should
be exempted from the prohibition against ex parte
communications, and witnesses cited many cases where the
court could have acted if only it had the information.
The Judicial Council is looking into that part of SB 1716
as part of its agenda for the Probate Conservatorship
Task Force.
AB 1363 (Jones)
Page 19
An Office of the Conservatorship Ombudsman would create a
brand new bureaucracy with powers and duties that will do
little to provide information (as the courts will already
be required, under the bill, to develop and disseminate
self-help information to nonprofessional conservators and
to assist them in each probate court), or actually
resolve problems with the conservatorship in a timely
manner (because unlike the LCTO, it has no jurisdictional
powers over the entities that can do something about any
problem of a conservatorship).
SHOULD A NEW BUREACRACY, THE OFFICE OF CONSERVATORSHIP
OMBUDSMAN, BE CREATED?
3. Court review frequency increased: would this resolve
the problems or create new ones?
Testimony at the hearings was overwhelming that there is
a great need for more court investigators, that the court
investigators' assessments have to be expanded in scope,
that the courts need to be more aware or apprised about a
conservatorship that is not in the best interests of the
conservator.
Current law requires a court review of the
conservatorship at the one year mark after appointment of
the conservator, and then biennially after. This gives
the court investigator the time to evaluate the
conservatorship, the need for the conservatorship, and
how the conservator is managing the conservatorship.
This bill would require that, instead of the first court
review at the one year mark, a court review occur at six
months, at a noticed hearing, and then annually
thereafter.
The Judicial Council believes that this time frame may
create an undue burden on the courts for several reasons.
First, the new scheme would double the conservatorship
reviews, creating severe burdens on the court
investigators and the courts. The Council suggests
maintaining the current schedule but amending it to
specifically authorize the court, on its own motion or at
the request of any interested person, to order a review
of the conservatorship at any other time.
AB 1363 (Jones)
Page 20
Second, shortening the time frame would push the schedule
for court investigators, who are already overworked.
This may mean that their reports are not complete, or
that other, more pressing investigations may have to
wait.
A compromise could be the submittal of a court
investigator's basic, not necessarily in-depth report at
six months, a review by the court without a hearing, and
a determination by the court whether a noticed hearing
should be set immediately if the report shows the need
for it, or whether the regularly scheduled noticed
hearing at the one year mark should suffice. At the
one-year hearing, the court may be able to determine,
based on a more complete court investigator's report,
whether the conservatorship review needs to occur one
year later or two years later, as required under existing
law.
SHOULD THIS REVISED SCHEDULE BE USED INSTEAD?
The advantage of this revised schedule is that a more
frequent (and earlier) review would be made by the court,
without a noticed hearing if the hearing is unnecessary.
This would leave the court free to handle other, more
problematic cases that need more attention.
The bill also proposes to require the court investigator
to report to the court within three court days if, when
the investigator interviews a conservatee after the
temporary conservator has been appointed, the
investigator discovers that the conservatee objects to
the appointment or wants an attorney. The speedy report
to the court in this instance would assist the court in
taking immediate action to replace the temporary
conservator or appoint counsel. [Proposed Sec.
2250.2(c).] That proposed provision also would require
the court investigator to report to the court within two
court days if it appears to the investigator that the
temporary conservatorship is inappropriate.
This provision would fill a big gap in the ability of
families or conservatees to reverse a temporary
conservatorship that may have been established by those
who would take advantage of the elderly, as was reported
AB 1363 (Jones)
Page 21
extensively at the hearings.
4. Other provisions are helpful, but need more input from
interested parties and the courts
As stated earlier, many of the provisions in the bill
would cure deficiencies and gaps in the conservatorship
system, but those do not necessarily need legislation at
this time. The notice provisions would provide comfort
to families and friends that they would be apprised of
what is happening with their loved one's status.
However, the notice provisions are included as one of
many potential areas of reform being considered by the
Task Force. The fiduciary duties of the conservator,
while reinforced by this bill, would not be enlarged, but
rather enforced more easily by the courts. In short,
there seems to be a lot that the courts can do with the
resources they have now to remedy some of the problems
raised at the hearings on conservatorships. Since the
courts are conducting serious self-evaluation of its role
as the overseer of conservatorships through the Probate
Conservatorship Task Force, it might be prudent to wait
until their recommendations can be incorporated into the
proposals in this bill.
Support: Office of the Attorney General; AARP, California;
Adult Services Policy Council of San Luis Obispo
County; Advisory Council of Area 4 Agency on Aging;
Area 1 on Aging's Advisory Council; Area Agency on
Aging Council, San Luis Obispo and Santa Barbara
Counties; California Alliance for Retired Americans;
California Commission on Aging; California for
Disability Rights, Inc.; California Seniors
Coalition; Contra Costa County Advisory Council on
Aging; Elder and Dependent Adult Abuse Prevention
Council of Santa Barbara County; Gray Panthers;
National Association of Social Workers, California
Chapter; Older Women's League of California; Retired
Public Employees Association; San Joaquin County
Commission on Aging; 2 individuals
Opposition: Madera County Board of Supervisors; Orange
County Board of Supervisors; Trusts and Estates
Section of the State Bar of California
AB 1363 (Jones)
Page 22
HISTORY
Source: Bet Tzedek Legal Services, Caifornia Alliance for
Retired Americans
Related Pending Legislation: SB 1116 (Scott) [See
Background.]
SB 1550 (Figueroa) [See
Background.]
SB 1716 (Bowen) [See Background.]
Prior Legislation: AB 1155 (Liu, Ch.625, Stats. of 2004)
requires the Judicial Council, by January 1,
2006, to adopt court rules establishing
qualifications and educational requirements
for private professional conservators and
guardians.
AB 2687 (Canciamilla, Ch. 888, Stats. of
2004) expanded the authority to the public
administrator to take control of a decedent's
property that is subject to loss, waste,
injury or misappropriation.
SB 1248 (Bowen, Ch. 548, Stas. of 2004)
modified the requirements for a trustee of
multiple parties to register in the Statewide
Registry.
Prior Vote:Asm. Hum. S. (not relevant)
Asm. Jud. (Ayes 6, Noes 0)
Asm. Appr. (Ayes 13, Noes 5)
Asm. Flr. (Ayes 55, Noes 10)
Sen. B.P. & E.D. (withdrawn from committee)
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