Bill Text: CA SB940 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: California Conservatorship Jurisdiction Act.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-09-25 - Chaptered by Secretary of State. Chapter 553, Statutes of 2014. [SB940 Detail]
Download: California-2013-SB940-Amended.html
Bill Title: California Conservatorship Jurisdiction Act.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-09-25 - Chaptered by Secretary of State. Chapter 553, Statutes of 2014. [SB940 Detail]
Download: California-2013-SB940-Amended.html
BILL NUMBER: SB 940 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 10, 2014
INTRODUCED BY Senator Jackson
FEBRUARY 4, 2014
An act to amend Section 1913 of the Code of Civil Procedure, to
add Section 70663 to the Government Code, and to amend Sections
1455, 1471, 1821, 1834, 1840, 1841, 1842, 1843, 1844, 1845,
1846, 1847, 1848, 1849, 1890, 2107, 2200, 2300, 2352,
2505, 2650, and 3800 of, to add Section
Sections 1301.5 and 1851.1 to, and to add Chapter 8
(commencing with Section 1980) to Part 3 of Division 4 of, the
Probate Code, relating to conservatorships.
LEGISLATIVE COUNSEL'S DIGEST
SB 940, as amended, Jackson. California Conservatorship
Jurisdiction Act.
The Guardianship-Conservatorship Law generally establishes the
standards and procedures for the appointment and termination of an
appointment for a guardian or conservator of a person, an estate, or
both. The law specifically requires, before the appointment of either
a guardian or conservator is effective, the prospective guardian or
conservator to take an oath to perform these duties according to the
law.
This bill would enact, operative January 1, 2016, except as
specified, the California Conservatorship Jurisdiction Act which is
intended to be a modified version of the Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act. This bill would provide
standards and procedures for establishing the proper jurisdiction for
a proceeding to appoint a conservator of a person, an estate, or
both. The bill would also establish conditions for the transfer of a
conservatorship established within this state to a jurisdiction
outside the state , and a transfer of a conservatorship into
this state, and for the registration and recognition by this
state of a conservatorship established by another state, a United
States territory, a federally recognized Indian tribe, or other
specified jurisdiction. This bill would establish rules relating
to the appeals from orders made under the California Conservatorship
Jurisdiction Act. This bill would authorize a $30 charge for
registering a conservatorship established outside this state to be
deposited into the Trial Court Trust Fund.
This bill would authorize a court in a conservatorship proceeding
to make specific requests of a court of another jurisdiction to take
certain actions relating to that proceeding, including, but not
limited to, holding an evidentiary hearing or ordering a person to
produce testimony, and would further authorize a court in this state
to grant similar requests from a court of another jurisdiction. This
bill would require the Judicial Council to develop court rules and
forms to implement the provisions of this act on or before January 1,
2016.
This bill would modify, limit, and supersede specified portions of
the federal Electronic Signatures in Global and National Commerce
Act, as it relates to these provisions. This bill would also specify
that the scope of the required oath obligates a guardian or
conservator to comply with applicable laws, at all times, in any
location within or without the state.
This bill would make conforming changes to related provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1913 of the Code of Civil Procedure is amended
to read:
1913. (a) Subject to subdivision (b), the effect of a judicial
record of a sister state is the same in this state as in the state
where it was made, except that it can only be enforced in this state
by an action or special proceeding.
(b) The authority of a guardian, conservator, or committee, or of
a personal representative, does not extend beyond the jurisdiction of
the government under which that person was invested with authority,
except to the extent expressly authorized by Article 4 (commencing
with Section 2011) of Chapter 8 of Part 3 of Division 4 of the
Probate Code or another statute.
SEC. 2. Section 70663 is added to the Government Code, to read:
70663. The fee for registering a conservatorship under Article 4
(commencing with Section 2011) of Chapter 8 of Part 3 of Division 4
of the Probate Code is thirty dollars ($30). The amounts collected
shall be distributed to the Trial Court Trust Fund under Section
68085.1.
SEC. 3. Section 1301.5 is added to the
Probate Code , to read:
1301.5. The following rules apply with respect to the California
Conservatorship Jurisdiction Act (Chapter 8 (commencing with Section
1980) of Part 3 of Division 4):
(a) (1) An appeal may be taken from an order assessing expenses
against a party under Section 1997 if the amount exceeds five
thousand dollars ($5,000).
(2) An order under Section 1997 assessing expenses of five
thousand dollars ($5,000) or less against a party may be reviewed on
an appeal by that party after entry of a final judgment or an
appealable order in the conservatorship proceeding. At the discretion
of the court of appeal, that type of order may also be reviewed upon
petition for an extraordinary writ.
(b) An appeal may be taken from an order under Section 2001
denying a petition to transfer a conservatorship to another state.
(c) An appeal may be taken from a final order under Section 2002
accepting a transfer and appointing a conservator in this state.
(d) Notwithstanding any other law, an appeal may not be taken from
either of the following until the court enters a final order under
Section 2002 accepting the proposed transfer and appointing a
conservator in this state:
(1) An order under Section 2002 determining whether or how to
conform a conservatorship to the law of this state.
(2) An order that is made pursuant to a court review under
Sections 1851.1 and 2002.
SEC. 4. Section 1455 of the Probate
Code is amended to read:
1455. Any petition for instructions or to grant a guardian or a
conservator any power or authority under this division, which may be
filed by a guardian or conservator, may also be filed by a person who
petitions for the appointment of a guardian or conservator ,
including, but not limited to, a person who petitions under Section
2002 for transfer of conservatorship .
SEC. 3. SEC. 5. Section 1471 of the
Probate Code is amended to read:
1471. (a) If a conservatee, proposed conservatee, or person
alleged to lack legal capacity is unable to retain legal counsel and
requests the appointment of counsel to assist in the particular
matter, whether or not that person lacks or appears to lack legal
capacity, the court shall, at or before the time of the hearing,
appoint the public defender or private counsel to represent the
interest of such that person in the
following proceedings under this division:
(1) A proceeding to establish or transfer a conservatorship or to
appoint a proposed conservator.
(2) A proceeding to terminate the conservatorship.
(3) A proceeding to remove the conservator.
(4) A proceeding for a court order affecting the legal capacity of
the conservatee.
(5) A proceeding to obtain an order authorizing removal of a
temporary conservatee from the temporary conservatee's place of
residence.
(b) If a conservatee or proposed conservatee does not plan to
retain legal counsel and has not requested the court to appoint legal
counsel, whether or not that person lacks or appears to lack legal
capacity, the court shall, at or before the time of the hearing,
appoint the public defender or private counsel to represent the
interests of that person in any proceeding listed in subdivision (a)
if, based on information contained in the court investigator's report
or obtained from any other source, the court determines that the
appointment would be helpful to the resolution of the matter or is
necessary to protect the interests of the conservatee or proposed
conservatee.
(c) In any proceeding to establish a limited conservatorship, if
the proposed limited conservatee has not retained legal counsel and
does not plan to retain legal counsel, the court shall immediately
appoint the public defender or private counsel to represent the
proposed limited conservatee. The proposed limited conservatee shall
pay the cost for that legal service if he or she is 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.
SEC. 4. SEC. 6. Section 1821 of the
Probate Code is amended to read:
1821. (a) The petition shall request that a conservator be
appointed for the person or estate, or both, shall specify the name,
address, and telephone number of the proposed conservator and the
name, address, and telephone number of the proposed conservatee, and
state the reasons why a conservatorship is necessary. Unless the
petitioner or proposed conservator is a bank or other entity
authorized to conduct the business of a trust company, the petitioner
or proposed conservator shall also file supplemental information as
to why the appointment of a conservator is required. The supplemental
information to be submitted shall include a brief statement of facts
addressed to each of the following categories:
(1) The inability of the proposed conservatee to properly provide
for his or her needs for physical health, food, clothing, and
shelter.
(2) The location of the proposed conservatee's residence and the
ability of the proposed conservatee to live in the residence while
under conservatorship.
(3) Alternatives to conservatorship considered by the petitioner
or proposed conservator and reasons why those alternatives are not
available.
(4) Health or social services provided to the proposed conservatee
during the year preceding the filing of the petition, when the
petitioner or proposed conservator has information as to those
services.
(5) The inability of the proposed conservatee to substantially
manage his or her own financial resources, or to resist fraud or
undue influence.
The facts required to address the categories set forth in
paragraphs (1) to (5), inclusive, shall be set forth by the
petitioner or proposed conservator if he or she has knowledge of the
facts or by the declarations or affidavits of other persons having
knowledge of those facts.
If any of the categories set forth in paragraphs (1) to (5),
inclusive, are not applicable to the proposed conservatorship, the
petitioner or proposed conservator shall so indicate and state on the
supplemental information form the reasons therefor.
The Judicial Council shall develop a supplemental information form
for the information required pursuant to paragraphs (1) to (5),
inclusive, after consultation with individuals or organizations
approved by the Judicial Council, who represent public conservators,
court investigators, the State Bar, specialists with experience in
performing assessments and coordinating community-based services, and
legal services for the elderly and disabled.
The supplemental information form shall be separate and distinct
from the form for the petition. The supplemental information shall be
confidential and shall be made available only to parties, persons
given notice of the petition who have requested this supplemental
information or who have appeared in the proceedings, their attorneys,
and the court. The court shall have discretion at any other time to
release the supplemental information to other persons if it would
serve the interests of the conservatee. The clerk of the court shall
make provision for limiting disclosure of the supplemental
information exclusively to persons entitled thereto under this
section.
(b) The petition shall set forth, so far as they are known to the
petitioner or proposed conservator, the names and addresses of the
spouse or domestic partner, and of the relatives of the proposed
conservatee within the second degree. If no spouse or domestic
partner of the proposed conservatee or relatives of the proposed
conservatee within the second degree are known to the petitioner or
proposed conservator, the petition shall set forth, so far as they
are known to the petitioner or proposed conservator, the names and
addresses of the following persons who, for the purposes of Section
1822, shall all be deemed to be relatives:
(1) A spouse or domestic partner of a predeceased parent of a
proposed conservatee.
(2) The children of a predeceased spouse or domestic partner of a
proposed conservatee.
(3) The siblings of the proposed conservatee's parents, if any,
but if none, then the natural and adoptive children of the proposed
conservatee's parents' siblings.
(4) The natural and adoptive children of the proposed conservatee'
s siblings.
(c) If the petitioner 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 shall include the following:
(1) The petitioner's or proposed conservator's proposed hourly fee
schedule or another statement of his or her proposed compensation
from the estate of the proposed conservatee for services performed as
a conservator. The petitioner's or proposed conservator's provision
of a proposed hourly fee schedule or another statement of his or her
proposed compensation, as required by this paragraph, shall not
preclude a court from later reducing the petitioner's or proposed
conservator's fees or other compensation.
(2) Unless a petition for appointment of a temporary conservator
that contains the statements required by this paragraph is filed
together with a petition for appointment of a conservator, both of
the following:
(A) A statement of the petitioner's or proposed conservator's
license information.
(B) A statement explaining who engaged the petitioner or proposed
conservator or how the petitioner or proposed conservator was engaged
to file the petition for appointment of a conservator or to agree to
accept the appointment as conservator and what prior relationship
the petitioner or proposed conservator had with the proposed
conservatee or the proposed conservatee's family or friends.
(d) If the petition is filed by a person 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 or why it was not feasible to contact any of them.
(2) Either the preferences of the proposed conservatee concerning
the appointment of a conservator and the appointment of the proposed
conservator or why it was not feasible to ascertain those
preferences.
(e) If the petition is filed by a person other than the proposed
conservatee, the petition shall state whether or not the petitioner
is a creditor or debtor, or the agent of a creditor or debtor, of the
proposed conservatee.
(f) If the proposed conservatee is a patient in or on leave of
absence from a state institution under the jurisdiction of the State
Department of State Hospitals or the State Department of
Developmental Services and that fact is known to the petitioner or
proposed conservator, the petition shall state that fact and name the
institution.
(g) The petition shall state, so far as is known to the petitioner
or proposed conservator, whether or not the proposed conservatee is
receiving or is entitled to receive benefits from the Veterans
Administration and the estimated amount of the monthly benefit
payable by the Veterans Administration for the proposed conservatee.
(h) The petition may include an application for any order or
orders authorized under this division, including, but not limited to,
orders under Chapter 4 (commencing with Section 1870).
(i) The petition may include a further statement that the proposed
conservatee is not willing to attend the hearing on the petition,
does not wish to contest the establishment of the conservatorship,
and does not object to the proposed conservator or prefer that
another person act as conservator.
(j) In the case of an allegedly developmentally disabled adult,
the petition shall set forth the following:
(1) The nature and degree of the alleged disability, the specific
duties and powers requested by or for the limited conservator, and
the limitations of civil and legal rights requested to be included in
the court's order of appointment.
(2) Whether or not the proposed limited conservatee is or is
alleged to be developmentally disabled.
Reports submitted pursuant to Section 416.8 of the Health and
Safety Code meet the requirements of this section, and
conservatorships filed pursuant to Article 7.5 (commencing with
Section 416) of Chapter 2 of Part 1 of Division 1 of the Health and
Safety Code are exempt from providing the supplemental information
required by this section, so long as the guidelines adopted by the
State Department of Developmental Services for regional centers
require the same information that is required pursuant to this
section.
(k) The petition shall state, so far as is known to the
petitioner, whether or not the proposed conservatee is a member of a
federally recognized Indian tribe. If so, the petition shall state
the name of the tribe, the state in which the tribe is located,
whether the proposed conservatee resides on tribal land, and whether
the proposed conservatee is known to own property on tribal land. For
the purposes of this subdivision, "tribal land" means land that is,
with respect to a specific Indian tribe and the members of that
tribe, "Indian country" as defined in Section 1151 of Title 18 of the
United States Code.
SEC. 5. SEC. 7. Section 1834 of the
Probate Code is amended to read:
1834. (a) Before letters are issued in a conservatorship that
originates in this state or a conservatorship that is transferred to
this state under Chapter 8 (commencing with Section 1980), the
conservator (other than a trust company or a public conservator)
shall file an acknowledgment of receipt of (1) a statement of duties
and liabilities of the office of conservator, and (2) a copy of the
conservatorship information required under Section 1835. The
acknowledgment and the statement shall be in the form prescribed by
the Judicial Council.
(b) The court may by local rules require the acknowledgment of
receipt to include the conservator's birth date and driver's license
number, if any, provided that the court ensures their
confidentiality.
(c) The statement of duties and liabilities prescribed by the
Judicial Council shall not supersede the law on which the statement
is based.
SEC. 8. Section 1840 of the Probate Code
is amended to read:
1840. Except as otherwise provided in this article, a conservator
for an absentee (Section 1403) shall be appointed as provided in
Article 3 (commencing with Section 1820) of this chapter or
Articl e 3 (commencing with Section 2001) of Chapter 8
.
SEC. 9. Section 1841 of the Probate
Code is amended to read:
1841. In addition to the other required contents of the petition,
if the proposed conservatee is an absentee:
(a) The petition, and any notice required by Section 1822 ,
Section 2002, or any other law, shall set forth the last known
military rank or grade and the social security account number of the
proposed conservatee.
(b) The petition shall state whether the absentee's spouse has
commenced any action or proceeding against the absentee for judicial
or legal separation, dissolution of marriage, annulment, or
adjudication of nullity of their marriage.
SEC. 10. Section 1842 of the Probate
Code is amended to read:
1842. In addition to the persons and entities to whom notice of
hearing is required under Section 1822 or Section 2002 ,
if the proposed conservatee is an absentee, a copy of the petition
and notice of the time and place of the hearing shall be mailed at
least 15 days before the hearing to the secretary concerned or to the
head of the United States department or agency concerned, as the
case may be. In such case, notice shall also be published pursuant to
Section 6061 of the Government Code in a newspaper of general
circulation in the county in which the hearing will be held.
SEC. 11. Section 1843 of the Probate
Code is amended to read:
1843. (a) No citation is required under
Section 1823 to the proposed conservatee if the proposed conservatee
is an absentee.
(b) No notice is required under Section 2002 to the proposed
conservatee if the proposed conservatee is an absentee.
SEC. 12. Section 1844 of the Probate
Code is amended to read:
1844. (a) An In a proceeding to appoint a
conservator for an absentee under Article 3 (commencing with Section
1820) of this chapter or Article 3 (comme ncing with
Section 2001) of Chapter 8, an official written report or
record complying with Section 1283 of the Evidence Code that a
proposed conservatee is an absentee shall be received as evidence of
that fact and the court shall not determine the status of the
proposed conservatee inconsistent with the status determined as shown
by the written report or record.
(b) The inability of the proposed conservatee to attend the
hearing is established by the official written report or record
referred to in subdivision (a).
SEC. 13. Section 1845 of the Probate
Code is amended to read:
1845. (a) Except as otherwise provided in this article, a
conservator of the estate of a person who is missing and whose
whereabouts is unknown shall be appointed as provided in Article 3
(commencing with Section 1820) of this chapter or Article 3
(commencing with Section 2001) of Chapter 8 .
(b) This article does not apply where the proposed conservatee is
an absentee as defined in Section 1403.
SEC. 14. Section 1846 of the Probate
Code is amended to read:
1846. In addition to the other required contents of the petition,
if the proposed conservatee is a person who is missing and whose
whereabouts is unknown, the petition shall state all of the
following:
(a) The proposed conservatee owns or is entitled to the possession
of real or personal property located in this state. In a
proceeding to transfer a conservatorship of a missing person to this
state under Article 3 (commencing with Section 2001) of Chapter 8,
this requirement is also satisfied if the petition states that the
proposed conservatee owns or is entitled to the possession of
personal property that is to be relocated to this state upon approval
of the transfer.
(b) The time and circumstance of the person's disappearance and
that the missing person has not been heard from by the persons most
likely to hear (naming them and their relationship to the missing
person) since the time of disappearance and that the whereabouts of
the missing person is unknown to those persons and to the petitioner.
(c) The last known residence of the missing person.
(d) A description of any search or inquiry made concerning the
whereabouts of the missing person.
(e) A description of the estate of the proposed conservatee which
requires attention, supervision, and care.
SEC. 15. Section 1847 of the Probate
Code is amended to read:
1847. In addition to the persons and entities to whom notice of
hearing is required under Section 1822 or Section 2002 ,
if the proposed conservatee is a person who is missing and whose
whereabouts is unknown:
(a) A copy of the petition for appointment of a conservator and
notice of the time and place of the hearing on the petition shall be
mailed at least 15 days before the hearing to the proposed
conservatee at the last known address of the proposed conservatee.
(b) Notice of the time and place of the hearing shall also be
published pursuant to Section 6061 of the Government Code in a
newspaper of general circulation in the county in which the proposed
conservatee was last known to reside if the proposed conservatee's
last known address is in this state.
(c) Pursuant to Section 1202, the court may require that further
or additional notice of the hearing be given.
SEC. 16. Section 1848 of the Probate
Code is amended to read:
1848. (a) In a proceeding under
Article 3 (commencing with Section 1820) to appoint a
conservator of the estate of a person who is missing and whose
whereabouts is unknown, the following acts are not required:
(a)
(1) Issuance of a citation to the proposed conservatee
pursuant to Section 1823.
(b)
(2) Service of a citation and petition pursuant to
Section 1824.
(c)
(3) Production of the proposed conservatee at the
hearing pursuant to Section 1825.
(d)
(4) Performance of the duties of the court investigator
pursuant to Section 1826.
(e)
(5) Performance of any other act that depends upon
knowledge of the location of the proposed conservatee.
(b) In a proceeding to transfer a conservatorship of a missing
person to this state under Article 3 (commencing with Section 2001)
of Chapter 8, the following acts are not required:
(1) Notice to the proposed conservatee pursuant to Section 2002.
(2) Production of the proposed conservatee at the hearings
pursuant to Section 2002.
(3) Performance of the duties of the court investigator pursuant
to Section 1851.1.
(4) Performance of any other act that depends upon knowledge of
the location of the proposed conservatee.
SEC. 17. Section 1849 of the Probate
Code is amended to read:
1849. A conservator of the estate of a person who is missing and
whose whereabouts is unknown may be appointed only if the court finds
all of the following:
(a) The proposed conservatee owns or is entitled to the possession
of real or personal property located in this state.
In a proceeding to transfer a conservatorship of a missing person to
this state under Article 3 (commencing with Section 2001) of Chapter
8, this requirement is also satisfied if the court finds that the
proposed conservatee owns or is entitled to the possession of
personal property that is to be relocated to this state
upon approval of the transfer.
(b) The proposed conservatee remains missing and his or her
whereabouts remains unknown.
(c) The estate of the proposed conservatee requires attention,
supervision, and care.
SEC. 6. SEC. 18. Section 1851.1 is
added to the Probate Code, to read:
1851.1. (a) When a court issues an order provisionally granting a
petition under Section 2002, the investigator appointed under
Section 2002 shall promptly commence an investigation under this
section.
(b) In conducting an investigation and preparing a report under
this section, the court investigator shall do all of the following:
(1) Comply with the requirements of Section 1851.
(2) Conduct an interview of the conservator.
(3) Conduct an interview of the conservatee's spouse or registered
domestic partner, if any.
(4) Inform the conservatee of the nature, purpose, and effect of
the conservatorship.
(5) Inform the conservatee and all other persons entitled to
notice under subdivision (b) of Section 2002 of the right to seek
termination of the conservatorship.
(6) Determine whether the conservatee objects to the conservator
or prefers another person to act as conservator.
(7) Inform the conservatee of the right to attend the hearing
under subdivision (c).
(8) Determine whether it appears that the conservatee is unable to
attend the hearing and, if able to attend, whether the conservatee
is willing to attend the hearing.
(9) Inform the conservatee of the right to be represented by legal
counsel if the conservatee so chooses, and to have legal counsel
appointed by the court if the conservatee is unable to retain legal
counsel.
(10) Determine whether the conservatee wishes to be represented by
legal counsel and, if so, whether the conservatee has retained legal
counsel and, if not, the name of an attorney the conservatee wishes
to retain.
(11) If the conservatee has not retained 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 Section 1826 or 1851 enacted by
Chapter 493 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. 19. Section 1890 of the Probate
Code is amended to read:
1890. (a) An order of the court under Section 1880 may be
included in the order of appointment of the conservator if the order
was requested in the petition for the appointment of the conservator
or the transfer petition under Section 2002 or, except in
the case of a limited conservator, may be made subsequently upon a
petition made, noticed, and heard by the court in the manner provided
in this article.
(b) In the case of a petition filed under this chapter requesting
that the court make an order under this chapter or that the court
modify or revoke an order made under this chapter, when the order
applies to a limited conservatee, the order may only be made upon a
petition made, noticed, and heard by the court in the manner provided
by Article 3 (commencing with Section 1820) of Chapter 1.
(c) No court order under Section 1880, whether issued as part of
an order granting the original petition for appointment of a
conservator or issued subsequent thereto, may be granted unless
supported by a declaration, filed at or before the hearing on the
request, executed by a licensed physician, or a licensed psychologist
within the scope of his or her licensure, and stating that the
proposed conservatee or the conservatee, as the case may be, lacks
the capacity to give an informed consent for any form of medical
treatment and the reasons therefor. Nothing in this section shall be
construed to expand the scope of practice of psychologists as set
forth in the Business and Professions Code.
SEC. 7. SEC. 20. Chapter 8
(commencing with Section 1980) is added to Part 3 of Division 4 of
the Probate Code, to read:
CHAPTER 8. INTERSTATE JURISDICTION, TRANSFER, AND RECOGNITION:
CALIFORNIA CONSERVATORSHIP JURISDICTION ACT
Article 1. General Provisions
1980. (a) By enacting this chapter, it is the Legislature's
intent to enact a modified version of the Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act.
(b) This chapter may be cited as the "California Conservatorship
Jurisdiction Act."
1981. (a) (1) This chapter does not apply to a minor, regardless
of whether the minor is or was married.
(2) This chapter does not apply to any proceeding in which a
person is appointed to provide personal care or property
administration for a minor, including, but not limited to, a
guardianship under Part 2 (commencing with Section 1500).
(b) This chapter does not apply to any proceeding in which a
person is involuntarily committed to a mental health facility or
subjected to other involuntary mental health care, including, but not
limited to, any of the following proceedings or any proceeding that
is similar in substance:
(1) A proceeding under Sections 1026 to 1027, inclusive, of the
Penal Code.
(2) A proceeding under Chapter 6 (commencing with Section 1367) of
Title 10 of Part 2 of the Penal Code.
(3) A proceeding under Article 4 (commencing with Section 2960) of
Chapter 7 of Title 1 of Part 3 of the Penal Code.
(4) A proceeding under Article 6 (commencing with Section 1800) of
Chapter 1 of Division 2.5 of the Welfare and Institutions Code.
(5) A proceeding under Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
(6) A proceeding under Article 3 (commencing with Section 3100) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
(7) A proceeding under Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code, which is also known
as the Lanterman-Petris-Short Act.
(8) A proceeding under Article 2 (commencing with Section 6500) of
Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions
Code.
(9) A proceeding under Article 4 (commencing with Section 6600) of
Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions
Code.
(c) Article 3 (commencing with Section 2001) does not apply to an
adult with a developmental disability, or to any proceeding in which
a person is appointed to provide personal care or property
administration for an adult with a developmental disability,
including, but not limited to, the following types of proceedings:
(1) A proceeding under Article 7.5 (commencing with Section 416)
of Chapter 2 of Part 1 of Division 1 of the Health and Safety Code.
(2) A limited conservatorship under subdivision (d) of Section
1801.
(3) A proceeding under Section 4825 of the Welfare and
Institutions Code.
(4) A proceeding under Article 2 (commencing with Section 6500) of
Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions
Code.
(d) Application of this chapter to a conservatee with dementia is
subject to the express limitations of Sections 2002 and 2014, as well
as the other requirements of this chapter.
1982. In this chapter:
(a) "Adult" means an individual who has attained 18 years of age.
(b) "Conservatee" means an adult for whom a conservator of the
estate, a conservator of the person, or a conservator of the person
and estate has been appointed.
(c) "Conservator" means a person appointed by the court to serve
as a conservator of the estate, a conservator of the person, or a
conservator of the person and estate.
(d) "Conservator of the estate" means a person appointed by the
court to administer the property of an adult, including, but not
limited to, a person appointed for that purpose under subdivision (b)
of Section 1801.
(e) "Conservator of the person" means a person appointed by the
court to make decisions regarding the person of an adult, including,
but not limited to, a person appointed for that purpose under
subdivision (a) of Section 1801.
(f) "Conservator of the person and estate" means a person
appointed by the court to make decisions regarding the person of an
adult and to administer the property of that adult, including, but
not limited to, a person appointed for those purposes under
subdivision (c) of Section 1801.
(g) "Conservatorship order" means an order appointing a
conservator of the estate, a conservator of the person, or a
conservator of the person and estate in a conservatorship proceeding.
(h) "Conservatorship proceeding" means a judicial proceeding in
which an order for the appointment of a conservator of the estate, a
conservator of the person, or a conservator of the person and estate
is sought or has been issued.
(i) "Party" means the conservatee, proposed conservatee,
petitioner, conservator, proposed conservator, or any other person
allowed by the court to participate in a conservatorship proceeding.
(j) "Person" means an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association,
joint venture, public corporation, government or governmental
subdivision, agency, or instrumentality, or any other legal or
commercial entity.
(k) "Proposed conservatee" means an adult for whom a
conservatorship order is sought.
(l) "Record" means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(m) Notwithstanding Section 74, "state" means a state of the
United States, the District of Columbia, Puerto Rico, the United
States Virgin Islands, a federally recognized Indian tribe, or any
territory or insular possession subject to the jurisdiction of the
United States.
1983. A court of this state may treat a foreign country as if it
were a state for the purpose of applying this article and Articles 2,
3, and 5.
1984. (a) A court of this state may communicate with a court in
another state concerning a proceeding arising under this chapter. The
court may allow the parties to participate in the communication.
Except as otherwise provided in subdivision (b), the court shall make
a record of the communication. The record may be limited to the fact
that the communication occurred.
(b) Courts may communicate concerning schedules, calendars, court
records, and other administrative matters without making a record.
1985. (a) In a conservatorship proceeding in this state, a court
of this state may request the appropriate court of another state to
do any of the following:
(1) Hold an evidentiary hearing.
(2) Order a person in that state to produce evidence or give
testimony pursuant to procedures of that state.
(3) Order that an evaluation or assessment be made of the proposed
conservatee.
(4) Order any appropriate investigation of a person involved in a
proceeding.
(5) Forward to the court of this state a certified copy of the
transcript or other record of a hearing under paragraph (1) or any
other proceeding, any evidence otherwise produced under paragraph
(2), and any evaluation or assessment prepared in compliance with an
order under paragraph (3) or (4).
(6) Issue any order necessary to assure
ensure the appearance in the proceeding of a person whose
presence is necessary for the court to make a determination,
including the conservatee or the proposed conservatee.
(7) Issue an order authorizing the release of medical, financial,
criminal, or other relevant information in that state, including
protected health information as defined in Section 160.103 of Title
45 of the Code of Federal Regulations.
(b) If a court of another state in which a conservatorship
proceeding is pending requests assistance of the kind provided in
subdivision (a), a court of this state has jurisdiction for the
limited purpose of granting the request or making reasonable efforts
to comply with the request.
(c) Travel and other necessary and reasonable expenses incurred
under subdivisions (a) and (b) may be assessed against the parties
according to the law of this state.
1986. (a) In a conservatorship proceeding, in addition to other
procedures that may be available, testimony of a witness who is
located in another state may be offered by deposition or other means
allowable in this state for testimony taken in another state. The
court on its own motion may order that the testimony of a witness be
taken in another state and may prescribe the manner in which and the
terms upon which the testimony is to be taken.
(b) In a conservatorship proceeding, a court in this state may
permit a witness located in another state to be deposed or to testify
by telephone or audiovisual or other electronic means. A court of
this state shall cooperate with the court of the other state in
designating an appropriate location for the deposition or testimony.
Article 2. Jurisdiction
1991. (a) In this article:
(1) "Emergency" means a circumstance that likely will result in
substantial harm to a proposed conservatee's health, safety, or
welfare, and for which the appointment of a conservator of the person
is necessary because no other person has authority and is willing to
act on behalf of the proposed conservatee.
(2) "Home state" means the state in which the proposed conservatee
was physically present, including any period of temporary absence,
for at least six consecutive months immediately before the filing of
a petition for a conservatorship order, or, if none, the state in
which the proposed conservatee was physically present, including any
period of temporary absence, for at least six consecutive months
ending within the six months prior to the filing of the petition.
(3) "Significant-connection state" means a state, other than the
home state, with which a proposed conservatee has a significant
connection other than mere physical presence and in which substantial
evidence concerning the proposed conservatee is available.
(b) In determining under Section 1993 and subdivision (e) of
Section 2001 whether a proposed conservatee has a significant
connection with a particular state, the court shall consider all of
the following:
(1) The location of the proposed conservatee's family and other
persons required to be notified of the conservatorship proceeding.
(2) The length of time the proposed conservatee at any time was
physically present in the state and the duration of any absence.
(3) The location of the proposed conservatee's property.
(4) The extent to which the proposed conservatee has ties to the
state such as voting registration, state or local tax return filing,
vehicle registration, driver's license, social relationship, and
receipt of services.
1992. For a conservatorship proceeding governed by this article,
this article provides the exclusive basis for determining whether the
courts of this state, as opposed to the courts of another state,
have jurisdiction to appoint a conservator of the person, a
conservator of the estate, or a conservator of the person and estate.
1993. (a) A court of this state has jurisdiction to appoint a
conservator for a proposed conservatee if this state is the proposed
conservatee's home state.
(b) A court of this state has jurisdiction to appoint a
conservator for a proposed conservatee if, on the date the petition
is filed, this state is a significant-connection state and the
respondent does not have a home state.
(c) A court of this state has jurisdiction to appoint a
conservator for a proposed conservatee if, on the date the petition
is filed, this state is a significant-connection state and a court of
the proposed conservatee's home state has expressly declined to
exercise jurisdiction because this state is a more appropriate forum.
(d) A court of this state has jurisdiction to appoint a
conservator for a proposed conservatee if both of the following
conditions are satisfied:
(1) On the date the petition is filed, this state is a
significant-connection state, the proposed conservatee has a home
state, and a conservatorship petition is not pending in a court of
the home state or another significant-connection state.
(2) Before the court makes the appointment, no conservatorship
petition is filed in the proposed conservatee's home state, no
objection to the court's jurisdiction is filed by a person required
to be notified of the proceeding, and the court in this state
concludes that it is an appropriate forum under the factors set forth
in Section 1996.
(e) A court of this state has jurisdiction to appoint a
conservator for a proposed conservatee if all of the following
conditions are satisfied:
(1) This state does not have jurisdiction under subdivision (a),
(b), (c), or (d).
(2) The proposed conservatee's home state and all
significant-connection states have expressly declined to exercise
jurisdiction because this state is the more appropriate forum.
(3) Jurisdiction in this state is consistent with the
constitutions of this state and the United States.
(f) A court of this state has jurisdiction to appoint a
conservator for a proposed conservatee if the requirements for
special jurisdiction under Section 1994 are met.
1994. (a) A court of this state lacking jurisdiction under
subdivisions (a) to (e), inclusive, of Section 1993 has special
jurisdiction to do any of the following:
(1) Appoint a temporary conservator of the person in an emergency
for a proposed conservatee who is physically present in this state.
In making an appointment under this paragraph, a court shall follow
the procedures specified in Chapter 3 (commencing with Section 2250)
of Part 4. The temporary conservatorship shall terminate in
accordance with Section 2257.
(2) Appoint a conservator of the estate with respect to real or
tangible personal property located in this state.
(3) Appoint a conservator of the person, conservator of the
estate, or conservator of the person and estate for a proposed
conservatee for whom a provisional order to transfer a proceeding
from another state has been issued under procedures similar to
Section 2001. In making an appointment under this paragraph, a court
shall follow the procedures specified in Chapter 3 (commencing with
Section 2250) of Part 4. The temporary conservatorship shall
terminate in accordance with Section 2257.
(b) If a petition for the appointment of a conservator of the
person in an emergency is brought in this state and this state was
not the home state of the proposed conservatee on the date the
petition was filed, the court shall dismiss the proceeding at the
request of the court of the home state, if any, whether dismissal is
requested before or after the emergency appointment of a temporary
conservator of the person.
1995. Except as otherwise provided in Section 1994, a court that
has appointed a conservator consistent with this chapter has
exclusive and continuing jurisdiction over the proceeding until it is
terminated by the court or the appointment expires by its own terms.
1996. (a) (1) A court of this state having jurisdiction under
Section 1993 to appoint a conservator may decline to exercise its
jurisdiction if it determines at any time that a court of another
state is a more appropriate forum.
(2) The issue of appropriate forum may be raised upon petition of
any interested person, the court's own motion, or the request of
another court.
(3) The petitioner, or, if there is no petitioner, the court in
this state, shall give notice of the petition, motion, or request to
the same persons and in the same manner as for a petition for a
conservatorship under Section 1801. The notice shall state the basis
for the petition, motion, or request, and shall inform the recipients
of the date, time, and place of the hearing under paragraph (4). The
notice shall also advise the recipients that they have a right to
object to the petition, motion, or request. The notice to the
potential conservatee shall inform the potential conservatee of the
right to be represented by legal counsel if the potential conservatee
so chooses, and to have legal counsel appointed by the court if the
potential conservatee is unable to retain legal counsel.
(4) The court shall hold a hearing on the petition, motion, or
request.
(b) If a court of this state declines to exercise its jurisdiction
under subdivision (a), it shall grant the petition, motion, or
request, and either dismiss or stay any conservatorship proceeding
pending in this state. The court's order shall be based on evidence
presented to the court. The order shall be in a record and shall
expressly state that the court declines to exercise its jurisdiction
because a court of another state is a more appropriate forum. The
court may impose any condition the court considers just and proper,
including the condition that a petition for the appointment of a
conservator of the person, conservator of the estate, or conservator
of the person and estate be filed promptly in another state.
(c) In determining whether it is an appropriate forum, the court
shall consider all relevant factors, including all of the following:
(1) Any expressed preference of the proposed conservatee.
(2) Whether abuse, neglect, or exploitation of the proposed
conservatee has occurred or is likely to occur and which state could
best protect the proposed conservatee from the abuse, neglect, or
exploitation.
(3) The length of time the proposed conservatee was physically
present in or was a legal resident of this or another state.
(4) The location of the proposed conservatee's family, friends,
and other persons required to be notified of the conservatorship
proceeding.
(5) The distance of the proposed conservatee from the court in
each state.
(6) The financial circumstances of the estate of the proposed
conservatee.
(7) The nature and location of the evidence.
(8) The ability of the court in each state to decide the issue
expeditiously and the procedures necessary to present evidence.
(9) The familiarity of the court of each state with the facts and
issues in the proceeding.
(10) If an appointment were made, the court's ability to monitor
the conduct of the conservator.
1997. (a) If at any time a court of this state determines that it
acquired jurisdiction to appoint a conservator because of
unjustifiable conduct, the court may do any of the following:
(1) Decline to exercise jurisdiction.
(2) Exercise jurisdiction for the limited purpose of fashioning an
appropriate remedy to ensure the health, safety, and welfare of the
conservatee or proposed conservatee or the protection of the property
of the conservatee or proposed conservatee or to prevent a
repetition of the unjustifiable conduct, including staying the
proceeding until a petition for the appointment of a conservator of
the person, conservator of the estate, or conservator of the person
and estate is filed in a court of another state having jurisdiction.
(3) Continue to exercise jurisdiction after considering all of the
following:
(A) The extent to which the conservatee or proposed conservatee
and all persons required to be notified of the proceedings have
acquiesced in the exercise of the court's jurisdiction.
(B) Whether it is a more appropriate forum than the court of any
other state under the factors set forth in subdivision (c) of Section
1996.
(C) Whether the court of any other state would have jurisdiction
under factual circumstances in substantial conformity with the
jurisdictional standards of Section 1993.
(b) If a court of this state determines that it acquired
jurisdiction to appoint a conservator because a party seeking to
invoke its jurisdiction engaged in unjustifiable conduct, it may
assess against that party necessary and reasonable expenses,
including attorney's fees, investigative fees, court costs,
communication expenses, medical examination expenses, witness fees
and expenses, and travel expenses. The court may not assess fees,
costs, or expenses of any kind against this state or a governmental
subdivision, agency, or instrumentality of this state unless
authorized by law other than this chapter.
1998. If a petition for the appointment of a conservator of the
person, conservator of the estate, or conservator of the person and
estate is brought in this state and this state was not the home state
of the proposed conservatee on the date the petition was filed, in
addition to complying with the notice requirements of this state, the
petitioner shall give notice of the petition or of a hearing on the
petition to those persons who would be entitled to notice of the
petition or of a hearing on the petition if a proceeding were brought
in the home state of the proposed conservatee. The notice shall be
given in the same manner as notice is required to be given in this
state.
1999. Except for a petition for the appointment of a conservator
under paragraph (1) or paragraph (2) of subdivision (a) of Section
1994, if a petition for the appointment of a conservator is filed in
this state and in another state and neither petition has been
dismissed or withdrawn, the following rules apply:
(a) If the court in this state has jurisdiction under Section
1993, it may proceed with the case unless a court in another state
acquires jurisdiction under provisions similar to Section 1993 before
the appointment.
(b) If the court in this state does not have jurisdiction under
Section 1993, whether at the time the petition is filed or at any
time before the appointment, the court shall stay the proceeding and
communicate with the court in the other state. If the court in the
other state has jurisdiction, the court in this state shall dismiss
the petition unless the court in the other state determines that the
court in this state is a more appropriate forum.
Article 3. Transfer of Conservatorship
2001. (a) A conservator appointed in this state may petition the
court to transfer the conservatorship to another state.
(b) The petitioner shall give notice of a hearing on a petition
under subdivision (a) to the persons that would be entitled to notice
of a hearing on a petition in this state for the appointment of a
conservator.
(c) The court shall hold a hearing on a petition filed pursuant to
subdivision (a).
(d) The court shall issue an order provisionally granting a
petition to transfer a conservatorship of the person, and shall
direct the conservator of the person to petition for acceptance of
the conservatorship in the other state, if the court is satisfied
that the conservatorship will be accepted by the court in the other
state and the court finds all of the following:
(1) The conservatee is physically present in or is reasonably
expected to move permanently to the other state.
(2) An objection to the transfer has not been made or, if an
objection has been made, the court determines that the transfer would
not be contrary to the interests of the conservatee.
(3) Plans for care and services for the conservatee in the other
state are reasonable and sufficient.
(e) The court shall issue a provisional order granting a petition
to transfer a conservatorship of the estate, and shall direct the
conservator of the estate to petition for acceptance of the
conservatorship in the other state, if the court is satisfied that
the conservatorship will be accepted by the court of the other state
and the court finds all of the following:
(1) The conservatee is physically present in or is reasonably
expected to move permanently to the other state, or the conservatee
has a significant connection to the other state considering the
factors in subdivision (b)
of Section 1991.
(2) An objection to the transfer has not been made or, if an
objection has been made, the court determines that the transfer would
not be contrary to the interests of the conservatee.
(3) Adequate arrangements will be made for management of the
conservatee's property.
(f) The court shall issue a provisional order granting a petition
to transfer a conservatorship of the person and estate, and shall
direct the conservator to petition for acceptance of the
conservatorship in the other state, if the requirements of
subdivision (d) and the requirements of subdivision (e) are both
satisfied.
(g) The court shall issue a final order confirming the transfer
and terminating the conservatorship upon its receipt of both of the
following:
(1) A provisional order accepting the proceeding from the court to
which the proceeding is to be transferred which is issued under
provisions similar to Section 2002.
(2) The documents required to terminate a conservatorship in this
state, including, but not limited to, any required accounting.
2002. (a) (1) To confirm transfer of a conservatorship
transferred to this state under provisions similar to Section 2001,
the conservator shall petition the court in this state to accept the
conservatorship.
(2) The petition shall include a certified copy of the other state'
s provisional order of transfer.
(3) On the first page of the petition, the petitioner shall state
that the conservatorship does not fall within the limitations of
Section 1981. The body of the petition shall allege facts showing
that this chapter applies and the requirements for transfer of the
conservatorship are satisfied.
(4) The petition shall specify any modifications necessary to
conform the conservatorship to the law of this state, and the terms
of a proposed final order accepting the conservatorship.
(5) A petition for the appointment of a temporary conservator
under Section 1994 and Chapter 3 (commencing with Section 2250) of
Part 4 may be filed while a petition under this section is pending.
The petition for the appointment of a temporary conservator shall
request the appointment of a temporary conservator eligible for
appointment in this state, and shall be limited to powers authorized
for a temporary conservator in this state. For purposes of Chapter 3
(commencing with Section 2250) of Part 4, the court shall treat a
petition under this section as the equivalent of a petition for a
general conservatorship.
(b) The petitioner shall give notice of a hearing on a petition
under subdivision (a) to those persons that would be entitled to
notice if the petition were a petition for the appointment of a
conservator in both the transferring state and this state. The
petitioner shall also give notice to any attorney of record for the
conservatee in the transferring state and to any attorney appointed
or appearing for the conservatee in this state. The petitioner shall
give the notice in the same manner that notice of a petition for the
appointment of a conservator is required to be given in this state,
except that notice to the conservatee shall be given by mailing the
petition instead of by personal service of a citation.
(c) Any person entitled to notice under subdivision (b) may object
to the petition on one or more of the following grounds:
(1) Transfer of the proceeding would be contrary to the interests
of the conservatee.
(2) Under the law of the transferring state, the conservator is
ineligible for appointment in this state.
(3) Under the law of this state, the conservator is ineligible for
appointment in this state, and the transfer petition does not
identify a replacement who is willing and eligible to serve in this
state.
(4) This chapter is inapplicable under Section 1981.
(d) Promptly after the filing of a petition under subdivision (a),
the court shall appoint an investigator under Section 1454. The
investigator shall promptly commence a preliminary investigation of
the conservatorship, which focuses on the matters described in
subdivision (f).
(e) The court shall hold a hearing on a petition filed pursuant to
subdivision (a).
(f) The court shall issue an order provisionally granting a
petition filed under subdivision (a) unless any of the following
occurs:
(1) The court determines that transfer of the proceeding would be
contrary to the interests of the conservatee.
(2) The court determines that, under the law of the transferring
state, the conservator is ineligible for appointment in this state.
(3) The court determines that, under the law of this state, the
conservator is ineligible for appointment in this state, and the
transfer petition does not identify a replacement who is willing and
eligible to serve in this state.
(4) The court determines that this chapter is inapplicable under
Section 1981.
(g) If the court issues an order provisionally granting the
petition, the investigator shall promptly commence an investigation
under Section 1851.1.
(h) (1) Not later than 60 days after issuance of an order
provisionally granting the petition, the court shall determine
whether the conservatorship needs to be modified to conform to the
law of this state. The court may take any action necessary to achieve
compliance with the law of this state, including, but not limited
to, striking or modifying any conservator powers that are not
permitted under the law of this state.
(2) At the same time that it makes the determination required by
paragraph (1), the court shall review the conservatorship as provided
in Section 1851.1.
(3) The conformity determination and the review required by this
subdivision shall occur at a hearing, which shall be noticed as
provided in subdivision (b).
(i) (1) The court shall issue a final order accepting the
proceeding and appointing the conservator in this state upon
completion of the conformity determination and review required by
subdivision (h), or upon its receipt from the court from which the
proceeding is being transferred of a final order issued under
provisions similar to Section 2001 transferring the proceeding to
this state, whichever occurs later. In appointing a conservator under
this paragraph, the court shall comply with Section 1830.
(2) A transfer to this state does not become effective unless and
until the court issues a final order under paragraph (1). A
conservator may not take action in this state pursuant to a transfer
petition unless and until the transfer becomes effective and all of
the following steps have occurred:
(A) The conservator has taken an oath in accordance with Section
2300.
(B) The conservator has filed the required bond, if any.
(C) The court has provided the information required by Section
1835 to the conservator.
(D) The conservator has filed an acknowledgment of receipt as
required by Section 1834.
(E) The clerk of the court has issued the letters of
conservatorship.
(3) Paragraph (2) does not preclude a person who has been
appointed as a temporary conservator pursuant to Chapter 3
(commencing with Section 2250) from taking action in this state
pursuant to the order establishing the temporary conservatorship.
(4) When a transfer to this state becomes effective, the
conservatorship is subject to the law of this state and shall
thereafter be treated as a conservatorship under the law of this
state. If a law of this state, including, but not limited to, Section
2356.5, mandates compliance with special requirements to exercise a
particular conservatorship power or take a particular step, the
conservator of a transferred conservatorship may not exercise that
power or take that step without first complying with those special
requirements.
(j) Except as otherwise provided by Section 1851.1, Chapter 3
(commencing with Section 1860), Chapter 9 (commencing with Section
2650) of Part 4, and other law, when the court grants a petition
under this section, the court shall recognize a conservatorship order
from the other state, including the determination of the conservatee'
s incapacity and the appointment of the conservator.
(k) The denial by a court of this state of a petition to accept a
conservatorship transferred from another state does not affect the
ability of the conservator to seek appointment as conservator in this
state under Chapter 1 (commencing with Section 1800) of Part 3 if
the court has jurisdiction to make an appointment other than by
reason of the provisional order of transfer.
2003. If a conservatorship is transferred under this article from
a court of this state to the court of a California tribe or from the
court of a California tribe to a court of this state, the order that
provisionally grants the transfer may expressly provide that
specified powers of the conservator will not be transferred.
Jurisdiction over the specified powers will be retained by the
transferring state and will not be included in the powers that are
granted to the conservator in the state that accepts the transfer.
Article 4. Registration and Recognition of Orders from Other
States
2011. (a) If a conservator of the person has been appointed in
another state and a petition for the appointment of a conservator of
the person is not pending in this state, the conservator of the
person appointed in the other state, after providing notice pursuant
to subdivisions (b) and (c), may register the conservatorship order
in this state by filing certified copies of the order and letters of
office, and proof of notice as required herein, together with a cover
sheet approved by the Judicial Council, in the superior court of any
appropriate county of this state.
(b) At least fifteen (15) 15 days
before registering a conservatorship in this state, the conservator
shall provide notice of an intent to register to all of the
following:
(1) The court supervising the conservatorship.
(2) Every person who would be entitled to notice of a petition for
the appointment of a conservator in the state where the
conservatorship is being supervised.
(3) Every person who would be entitled to notice of a petition for
the appointment of a conservator in this state.
(c) Each notice provided pursuant to subdivision (b) shall
prominently state that when a conservator acts pursuant to
registration, the conservator is subject to the law of this state
governing the action, including, but not limited to, all applicable
procedures, and is not authorized to take any action prohibited by
the law of this state. Except as provided in subdivision (c) of
Section 2023, each notice shall also prominently state that the
registration is effective only while the conservatee resides in
another jurisdiction and does not authorize the conservator to take
any action while the conservatee is residing in this state.
2012. (a) If a conservator of the estate has been appointed in
another state and a petition for a conservatorship of the estate is
not pending in this state, the conservator appointed in the other
state, after providing notice pursuant to subdivisions (b) and (c),
may register the conservatorship order in this state by filing
certified copies of the order and letters of office and of any bond,
and proof of notice as required herein, together with a cover sheet
approved by the Judicial Council, in the superior court of any county
of this state in which property belonging to the conservatee is
located.
(b) At least fifteen (15) 15 days
before registering a conservatorship in this state, the conservator
shall provide notice of an intent to register to all of the
following:
(1) The court supervising the conservatorship.
(2) Every person who would be entitled to notice of a petition for
the appointment of a conservator in the state where the
conservatorship is being supervised.
(3) Every person who would be entitled to notice of a petition for
the appointment of a conservator in this state.
(c) Each notice provided pursuant to subdivision (b) shall
prominently state that when a conservator acts pursuant to
registration, the conservator is subject to the law of this state
governing the action, including, but not limited to, all applicable
procedures, and is not authorized to take any action prohibited by
the law of this state. Except as provided in subdivision (c) of
Section 2023, each notice shall also prominently state that the
registration is effective only while the conservatee resides in
another jurisdiction and does not authorize the conservator to take
any action while the conservatee is residing in this state.
2013. (a) If a conservator of the person and estate has been
appointed in another state and a petition for a conservatorship of
the person, conservatorship of the estate, or conservatorship of the
person and estate is not pending in this state, the conservator
appointed in the other state, after providing notice pursuant to
subdivisions (b) and (c), may register the conservatorship order in
this state by filing certified copies of the order and letters of
office and of any bond, and proof of notice as required herein,
together with a cover sheet approved by the Judicial Council, in the
superior court of any appropriate county of this state.
(b) At least fifteen (15) 15 days
before registering a conservatorship in this state, the conservator
shall provide notice of an intent to register to all of the
following:
(1) The court supervising the conservatorship.
(2) Every person who would be entitled to notice of a petition for
the appointment of a conservator in the state where the
conservatorship is being supervised.
(3) Every person who would be entitled to notice of a petition for
the appointment of a conservator in this state.
(c) Each notice provided pursuant to subdivision (b) shall
prominently state that when a conservator acts pursuant to
registration, the conservator is subject to the law of this state
governing the action, including, but not limited to, all applicable
procedures, and is not authorized to take any action prohibited by
the law of this state. Except as provided in subdivision (c) of
Section 2023, each notice shall also prominently state that the
registration is effective only while the conservatee resides in
another jurisdiction and does not authorize the conservator to take
any action while the conservatee is residing in this state.
2014. (a) Upon registration of a conservatorship order from
another state, the conservator may, while the conservatee resides out
of this state, exercise in any county of this state all powers
authorized in the order of appointment except as prohibited under the
laws of this state, including maintaining actions and proceedings in
this state and, if the conservator is not a resident of this state,
subject to any conditions imposed upon nonresident parties. When
acting pursuant to registration, the conservator is subject to the
law of this state governing the action, including, but not limited
to, all applicable procedures, and is not authorized to take any
action prohibited by the law of this state. If a law of this state,
including, but not limited to, Section 2352, 2352.5, 2355, 2356.5,
2540, 2543, 2545, or 2591.5, or Article 2 (commencing with Section
1880) of Chapter 4 of Part 4, mandates compliance with special
requirements to exercise a particular conservatorship power or take a
particular step, the conservator of a registered conservatorship may
not exercise that power or take that step without first complying
with those special requirements.
(b) When subdivision (a) requires a conservator to comply with a
law of this state that makes it necessary to obtain court approval or
take other action in court, the conservator shall seek that approval
or proceed as needed in an appropriate court of this state. In
handling the matter, that court shall communicate and cooperate with
the court that is supervising the conservatorship, in accordance with
Sections 1984 and 1985.
(c) Subdivision (a) applies only when the conservatee resides out
of this state. When the conservatee resides in this state, a
conservator may not exercise any powers pursuant to a registration
under this article.
(d) A court of this state may grant any relief available under
this chapter and other law of this state to enforce a registered
order.
2015. (a) A third person who acts in good faith reliance on a
conservatorship order registered under this article is not liable to
any person for so acting if all of the following requirements are
satisfied:
(1) The conservator presents to the third person a file-stamped
copy of the registration documents required by Section 2011, 2012, or
2013, including, but not limited to, the certified copy of the
conservatorship order.
(2) Each of the registration documents, including, but not limited
to, the conservatorship order and the file-stamped cover sheet,
appears on its face to be valid.
(3) The conservator presents to the third person a form approved
by the Judicial Council, in which the conservator attests that the
conservatee does not reside in this state and the conservator
promises to promptly notify the third person if the conservatee
becomes a resident of this state. The form shall also prominently
state that the registration is effective only while the conservatee
resides in another jurisdiction and does not authorize the
conservator to take any action while the conservatee is residing in
this state.
(4) The third person has not received any actual notice that the
conservatee is residing in this state.
(b) Nothing in this section is intended to create an implication
that a third person is liable for acting in reliance on a
conservatorship order registered under this article under
circumstances where the requirements of subdivision (a) are not
satisfied. Nothing in this section affects any immunity that may
otherwise exist apart from this section.
2016. (a) A file-stamped copy of the registration documents
required by Section 2011, 2012, or 2013 may be recorded in the office
of any county recorder in this state.
(b) A county recorder may charge a reasonable fee for recordation
under subdivision (a).
2017. Notwithstanding any other provision of this article:
(a) A conservatorship order of a court of a California tribe can
be registered under Section 2011, 2012, or 2013, regardless of
whether the conservatee resides in California.
(b) The effect of a conservatorship order of a court of a
California tribe that is registered under Section 2011, 2012, or 2013
is not contingent on whether the conservatee resides in California.
(c) Paragraphs (3) and (4) of subdivision (a) of Section 2015 do
not apply to a conservatorship order of a court of a California
tribe.
Article 5. Miscellaneous Provisions
2021. In applying and construing this uniform act, consideration
shall be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it, consistent
with the need to protect individual civil rights and in accordance
with due process.
2022. This chapter modifies, limits, and supersedes the federal
Electronic Signatures in Global and National Commerce Act,
Title Act (Title 15 (commencing with Section
7001) of the United States Code, Code),
but does not modify, limit, or supersede subdivision (c) of Section
101 of that act, which is codified as subdivision (c) of Section 7001
of Title 15 of the United States Code, or authorize electronic
delivery of any of the notices described in subdivision (b) of
Section 103 of that act, which is codified as subdivision (b) of
Section 7003 of Title 15 of the United States Code.
2023. (a) On or before January 1, 2016, the Judicial Council
shall develop court rules and forms as necessary for the
implementation of this chapter.
(b) The materials developed pursuant to this section shall
include, but not be limited to, both of the following:
(1) A cover sheet for registration of a conservatorship under
Section 2011, 2012, or 2013. The cover sheet shall explain that a
proceeding may not be registered under Section 2011, 2012, or 2013 if
the proceeding relates to a minor. The cover sheet shall further
explain that a proceeding in which a person is subjected to
involuntary mental health care may not be registered under Section
2011, 2012, or 2013. The cover sheet shall require the conservator to
initial each of these explanations. The cover sheet shall also
prominently state that when a conservator acts pursuant to
registration, the conservator is subject to the law of this state
governing the action, including, but not limited to, all applicable
procedures, and is not authorized to take any action prohibited by
the law of this state. Except as provided in subdivision (c), the
cover sheet shall also prominently state that the registration is
effective only while the conservatee resides in another jurisdiction
and does not authorize the conservator to take any action while the
conservatee is residing in this state. Directly beneath these
statements, the cover sheet shall include a signature box in which
the conservator attests to these matters.
(2) The form required by paragraph (3) of subdivision (a) of
Section 2015. If the Judicial Council deems it advisable, this form
may be included in the civil cover sheet developed under paragraph
(1).
(3) A form for providing notice of intent to register a proceeding
under Section 2011, 2012, or 2013.
(c) The materials prepared pursuant to this section shall be
consistent with Section 2017.
2024. (a) This chapter applies to conservatorship proceedings
begun on or after January 1, 2016.
(b) Articles 1, 3, and 4 and Sections 2021 and 2022 apply to
proceedings begun before January 1, 2016, regardless of whether a
conservatorship order has been issued.
Article 6. Federally Recognized Indian Tribe
2031. For the purposes of this chapter:
(a) "California tribe" means an Indian tribe with jurisdiction
that has tribal land located in California.
(b) "Indian tribe with jurisdiction" means a federally recognized
Indian tribe that has a court system that exercises jurisdiction over
proceedings that are substantially equivalent to conservatorship
proceedings.
(c) "Tribal land" means land that is, with respect to a specific
Indian tribe and the members of that tribe, "Indian country" as
defined in Section 1151 of Title 18 of the United States Code.
2032. Article 2 (commencing with Section 1991) does not apply to
a proposed conservatee who is a member of an Indian tribe with
jurisdiction.
2033. (a) If a petition for the appointment of a conservator has
been filed in a court of this state and a conservator has not yet
been appointed, any person entitled to notice of a hearing on the
petition may move to dismiss the petition on the grounds that the
proposed conservatee is a member of an Indian tribe with
jurisdiction. The petition shall state the name of the Indian tribe.
(b) If, after communicating with the named tribe, the court of
this state finds that the proposed conservatee is a member of an
Indian tribe with jurisdiction, it may grant the motion to dismiss if
it finds that there is good cause to do so. If the motion is
granted, the court may impose any condition the court considers just
and proper, including the condition that a petition for the
appointment of a conservator be filed promptly in the tribal court.
(c) In determining whether there is good cause to grant the
motion, the court may consider all relevant factors, including, but
not limited to, the following:
(1) Any expressed preference of the proposed conservatee.
(2) Whether abuse, neglect, or exploitation of the proposed
conservatee has occurred or is likely to occur and which state could
best protect the proposed conservatee from the abuse, neglect, or
exploitation.
(3) The length of time the proposed conservatee was physically
present in or was a legal resident of this or another state.
(4) The location of the proposed conservatee's family, friends,
and other persons required to be notified of the conservatorship
proceeding.
(5) The distance of the proposed conservatee from the court in
each state.
(6) The financial circumstances of the estate of the proposed
conservatee.
(7) The nature and location of the evidence.
(8) The ability of the court in each state to decide the issue
expeditiously and the procedures necessary to present evidence.
(9) The familiarity of the court of each state with the facts and
issues in the proceeding.
(10) If an appointment were made, the court's ability to monitor
the conduct of the conservator.
(11) The timing of the motion, taking into account the parties'
and court's expenditure of time and resources.
(d) Notwithstanding subdivision (b), the court shall not dismiss
the petition if the tribal court expressly declines to exercise its
jurisdiction with regard to the proposed conservatee.
SEC. 8. SEC. 21. Section 2107 of the
Probate Code is amended to read:
2107. (a) Unless limited by court order, when a court of this
state appoints a guardian or conservator of the person of a
nonresident, the appointee has the same powers and duties as a
guardian or conservator of the person of a resident while the
nonresident is in this state.
(b) When a court of this state appoints a guardian or conservator
of the estate of a nonresident, the appointee has, with respect to
the property of the nonresident within this state, the same powers
and duties as a guardian or conservator of the estate of a resident.
The responsibility of such a guardian or conservator with regard to
inventory, accounting, and disposal of the estate is confined to the
property that comes into the hands of the guardian or conservator in
this state.
SEC. 9. SEC. 22. Section 2200 of the
Probate Code is amended to read:
2200. (a) The superior court has jurisdiction of guardianship and
conservatorship proceedings.
(b) Chapter 8 (commencing with Section 1980) of Part 3 governs
which state has jurisdiction of a conservatorship proceeding.
SEC. 10. SEC. 23. Section 2300 of
the Probate Code is amended to read:
2300. Before the appointment of a guardian or conservator is
effective, including, but not limited to, the appointment of a
conservator under Section 2002, the guardian or conservator shall:
(a) Take an oath to perform the duties of the office according to
law. The oath obligates the guardian or conservator to comply with
the law of this state, as well as other applicable law, at all times,
in any location within or without the state. If the conservator
petitions for transfer of the
conservatorship to another state pursuant to Section 2001, the
conservator shall continue to comply with the law of this state until
the court issues a final order confirming the transfer and
terminating the conservatorship pursuant to Section 2001. The oath
shall be attached to or endorsed upon the letters.
(b) File the required bond if a bond is required.
SEC. 11. SEC. 24. Section 2352 of
the Probate Code is amended to read:
2352. (a) The guardian may establish the residence of the ward at
any place within this state without the permission of the court. The
guardian shall select the least restrictive appropriate residence
that is available and necessary to meet the needs of the ward, and
that is in the best interests of the ward.
(b) The conservator may establish the residence of the conservatee
at any place within this state without the permission of the court.
The conservator shall select the least restrictive appropriate
residence, as described in Section 2352.5, that is available and
necessary to meet the needs of the conservatee, and that is in the
best interests of the conservatee.
(c) If permission of the court is first obtained, a guardian or
conservator may establish the residence of a ward or conservatee at a
place not within this state. Notice of the hearing on the petition
to establish the residence of the ward or conservatee out of state,
together with a copy of the petition, shall be given in the manner
required by subdivision (a) of Section 1460 to all persons entitled
to notice under subdivision (b) of Section 1511 or subdivision (b) of
Section 1822.
(d) (1) An order under subdivision (c) relating to a ward shall
require the guardian either to return the ward to this state, or to
cause a guardianship proceeding or its equivalent to be commenced in
the place of the new residence, when the ward has resided in the
place of new residence for a period of four months or a longer or
shorter period specified in the order.
(2) An order under subdivision (c) relating to a conservatee shall
require the conservator to do one of the following when the
conservatee has resided in the other state for a period of four
months or a longer or shorter period specified in the order:
(A) Return the conservatee to this state.
(B) Petition for transfer of the conservatorship to the other
state under Article 3 (commencing with Section 2001) of Chapter 8 of
Part 3 and corresponding law of the other state.
(C) Cause a conservatorship proceeding or its equivalent to be
commenced in the other state.
(e) (1) The guardian or conservator shall file a notice of change
of residence with the court within 30 days of the date of the change.
The guardian or conservator shall include in the notice of change of
residence a declaration stating that the ward's or conservatee's
change of residence is consistent with the standard described in
subdivision (b).
(2) The guardian or conservator shall mail a copy of the notice to
all persons entitled to notice under subdivision (b) of Section 1511
or subdivision (b) of Section 1822 and shall file proof of service
of the notice with the court. The court may, for good cause, waive
the mailing requirement pursuant to this paragraph in order to
prevent harm to the conservatee or ward.
(3) If the guardian or conservator proposes to remove the ward or
conservatee from his or her personal residence, except as provided by
subdivision (c), the guardian or conservator shall mail a notice of
his or her intention to change the residence of the ward or
conservatee to all persons entitled to notice under subdivision (b)
of Section 1511 and subdivision (b) of Section 1822. In the absence
of an emergency, that notice shall be mailed at least 15 days before
the proposed removal of the ward or conservatee from his or her
personal residence. If the notice is served less than 15 days prior
to the proposed removal of the ward or conservatee, the guardian or
conservatee shall set forth the basis for the emergency in the
notice. The guardian or conservator shall file proof of service of
that notice with the court.
(f) This section does not apply where the court has made an order
under Section 2351 pursuant to which the conservatee retains the
right to establish his or her own residence.
(g) As used in this section, "guardian" or "conservator" includes
a proposed guardian or proposed conservator and "ward" or
"conservatee" includes a proposed ward or proposed conservatee.
(h) This section does not apply to a person with developmental
disabilities for whom the Director of the Department
of Developmental Services or a regional center, established
pursuant to Chapter 5 (commencing with Section 4620) of Division 4.5
of the Welfare and Institutions Code, acts as the conservator.
SEC. 25. Section 2505 of the Probate
Code is amended to read:
2505. (a) Subject to subdivision (c), where the claim or matter
is the subject of a pending action or proceeding, the court approval
required by this article shall be obtained from the court in which
the action or proceeding is pending.
(b) Where the claim or matter is not the subject of a pending
action or proceeding, the court approval required by this article
shall be obtained from one of the following:
(1) The court in which the guardianship or conservatorship
proceeding is pending.
(2) The superior court of the county where the ward or conservatee
or guardian or conservator resides at the time the petition for
approval is filed.
(3) The superior court of any county where a suit on the claim or
matter properly could be brought.
(c) Where the claim or matter is the subject of a pending action
or proceeding that is not brought in a court of this state, court
approval required by this article shall be obtained from either of
the following:
(1) The court in which the action or proceeding is pending.
(2) The court in which the guardianship or conservatorship
proceeding is pending.
(d) (1) Subdivisions (a), (b), and (c) do not apply to a
conservatorship that is registered in this state pursuant to Article
4 (commencing with Section 2011) of Chapter 8 of Part 3.
(2) Except as provided in paragraph (3), when a conservatorship is
registered in this state pursuant to Article 4 (commencing with
Section 2011) of Chapter 8 of Part 3, the court approval required by
this article shall be obtained in accordance with Section 2014.
(3) Notwithstanding Section 2014, when a conservatorship is
registered in this state pursuant to Article 4 (commencing with
Section 2011) of Chapter 8 of Part 3, and the claim or matter in
question is the subject of a pending action or proceeding that is not
brought in a court of this state, the court approval required by
this article may be obtained from the court in which the action or
proceeding is pending.
SEC. 12. SEC. 26. Section 2650 of
the Probate Code is amended to read:
2650. A guardian or conservator may be removed for any of the
following causes:
(a) Failure to use ordinary care and diligence in the management
of the estate.
(b) Failure to file an inventory or an account within the time
allowed by law or by court order.
(c) Continued failure to perform duties or incapacity to perform
duties suitably.
(d) Conviction of a felony, whether before or after appointment as
guardian or conservator.
(e) Gross immorality.
(f) Having such an interest adverse to the faithful performance of
duties that there is an unreasonable risk that the guardian or
conservator will fail faithfully to perform duties.
(g) In the case of a guardian of the person or a conservator of
the person, acting in violation of any provision of Section 2356.
(h) In the case of a guardian of the estate or a conservator of
the estate, insolvency or bankruptcy of the guardian or conservator.
(i) In the case of a conservator appointed by a court in another
jurisdiction, removal because that person would not have been
appointed in this state despite being eligible to serve under the law
of this state.
(j) In any other case in which the court in its discretion
determines that removal is in the best interests of the ward or
conservatee; but, in considering the best interests of the ward, if
the guardian was nominated under Section 1500 or 1501, the court
shall take that fact into consideration.
SEC. 13. SEC. 27. Section 3800 of
the Probate Code is amended to read:
3800. (a) If a nonresident has a duly appointed, qualified, and
acting guardian, conservator, committee, or comparable fiduciary in
the place of residence and if no proceeding for guardianship or
conservatorship of the nonresident is pending or contemplated in this
state, the nonresident fiduciary may petition to have property owned
by the nonresident removed to the place of residence.
(b) The petition for removal of property of the nonresident shall
be filed in the superior court of the county in which the nonresident
is or has been temporarily present or in which the property of the
nonresident, or the principal part thereof, is located.
(c) If a conservatorship was transferred from this state to
another state pursuant to Article 3 (commencing with Section 2001) of
Chapter 8 of Part 3, the foreign conservator may remove the
conservatee's personal property from this state without seeking a
petition under this chapter.
SEC. 14. SEC. 28. (a) Section 2023
of the Probate Code, as added by this act, becomes operative on
January 1, 2015.
(b) The remainder of this act becomes operative on January 1,
2016.
