California Assembly Bill No. 1194, Low, Conservatorship, was approved by the Governor and filed with the Secretary of State on September 30, 2021. The Bill is long, has many sections, and amends many sections of the Probate Code or makes new sections. Some of the provisions do not necessarily become mandatory immediately – typical wording that is included in many of the new provisions states something similar to: “A superior court shall not be required to perform any duties imposed pursuant to this section until the legislature makes an appropriation identified for this purpose.” Nevertheless, as to a certain extent the Probate Court in each Superior Court sometimes can operate as it wishes, although not “required” to perform the specified duties, a Probate Court still might decide to do so prior to an appropriation being made by the legislature. If a Probate Court decides to perform the new duties earlier than required to do so, the Probate Court should be sure to make that decision known to practicing attorneys, the public, and others.
Some of the new provisions apply to conservatorships in general, whereas other provisions specifically apply only to limited conservatorships, or temporary conservatorships, or other specific situations.
You can find other conservatorship related posts throughout this blog. Conservatorships are a developing area of law. The new provisions strengthen conservatee and prospective conservatee rights, which is appropriate given that a conservatorship is a state action that limits the conservatee’s constitution rights of freedom and personal choice. It is also true that, in the real world, recognizing and specifying the additional rights most likely will create or cause new processes and procedures which might well cause fewer conservatorships to be granted, more conservatorships might be terminated, conservatorships that are ordered might involve fewer limitations or restrictions on conservatees, and additional court time and attention might be required in conservatorship cases. The result might also be that if there are fewer conservatorships, people who would have been but who are not being conserved might need additional help or assistance from an attorney in fact under a power of attorney, or from a trustee, or from a spouse or domestic partner, family and friends.
The following are two significant sections in AB 1194 which are effective immediately. The first section amends Probate Code section 1471. The second section amends Probate Code section 1863.
The amendment to Probate Code section 1471 specifies that a conservatee or a prospective conservatee, or a person alleged to lack legal capacity is entitled to be represented by an attorney, whether the attorney is the public defender or private counsel, and that the conservatee or prospective conservatee also in most situations is entitled to be represented by an attorney of her or his choice (or, perhaps, by the choice of her or his attorney in fact?). Amended section 1471 also appears to require the court to appoint legal counsel for the conservatee, prospective conservatee or person alleged to lack legal capacity even when legal counsel wasn’t requested – see below at section 1471(b).
The amendment to Probate Code section 1863 is perhaps even more significant. Amended sections 1863(c) and (d) provide that when a court is determining whether the granting of a conservatorship is appropriate, and when reviewing the appropriateness of a conservatorship continuing or not (which is required at least annually and sometimes can be required more often), unless the court determines by clear and convincing evidence that the conservatee meets the criteria for the appointment of a conservator or still meets that criteria (i.e., that the order for a conservatorship is appropriate), and that the conservatorship and the powers that have been granted to the conservator are the least restrictive means of providing help and assistance to the conservatee or prospective conservatee, the court shall terminate the conservatorship or modify the terms to be the least restrictive.
As the clear and convincing standard is a higher standard of proof than for example the preponderance of the evidence, the result might be fewer conservatorships being granted, or less restrictive conservatorship terms, or more conservatorships being terminated. As in many circumstances a conservatee or prospective conservatee also is entitled to have a trial on the matter (i.e., with witness testimony instead of the judge simply making a decision from the bench), and also might be entitled to have a trial by jury instead of simply by the judge, there is the prospect that more conservatorship cases will result in trials, and in jury trials (see also section 1471(e) below in reference to the attorney being a “zealous, independent advocate representing the wishes of their client”).
Below I have copied and pasted the new amended Probate Code sections 1471 and 1863. You can also search this blog for other “conservatorship” posts.
Thanks for reading, and best to you, Dave Tate, Esq.
Section 1471 of the Probate Code is amended to read:
(a) If a conservatee, proposed conservatee, or person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in the following proceedings under this division:
(1) A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.
(2) A proceeding to terminate the conservatorship.
(3) A proceeding to remove the conservator.
(4) A proceeding for a court order affecting the legal capacity of the conservatee.
(5) A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence.
(b) If a conservatee or proposed conservatee has not retained legal counsel and does not plan to retain legal counsel, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in any proceeding listed in subdivision (a).
(c) In any proceeding to establish a limited conservatorship, if the proposed limited conservatee has not retained legal counsel and does not plan to retain legal counsel, the court shall immediately appoint the public defender or private counsel to represent the proposed limited conservatee. The proposed limited conservatee shall pay the cost for that legal service if they are able. This subdivision applies irrespective of any medical or psychological inability to attend the hearing on the part of the proposed limited conservatee as allowed in Section 1825.
(d) If a conservatee, proposed conservatee, or person alleged to lack legal capacity expresses a preference for a particular attorney to represent them, the court shall allow representation by the preferred attorney, even if the attorney is not on the court’s list of a court-appointed attorneys, and the attorney shall provide zealous representation as provided in subdivision (e). However, an attorney who cannot provide zealous advocacy or who has any conflict of interest with respect to the representation of the conservatee, proposed conservatee, or person alleged to lack legal capacity shall be disqualified.
(e) The role of legal counsel of a conservatee, proposed conservatee, or a person alleged to lack legal capacity is that of a zealous, independent advocate representing the wishes of their client, consistent with the duties set forth in Section 6068 of the Business and Professions Code and the California Rules of Professional Conduct.
(f) In an appeal or writ proceeding arising out of a proceeding described in this section, if a conservatee or proposed conservatee is not represented by legal counsel, the reviewing court shall appoint legal counsel to represent the conservatee or proposed conservatee before the court.
Section 1863 of the Probate Code is amended to read:
(a) The court shall hear and determine the matter according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the conservatee. The conservator, the conservatee, the spouse or domestic partner, or any relative or friend of the conservatee or other interested person may appear and support or oppose the termination of the conservatorship.
(b) (1) The conservatee shall be produced at the hearing except in the following cases:
(A) When the conservatee is out of the state and is not the petitioner.
(B) When the conservatee is unable to attend the hearing by reason of medical inability.
(C) When the court investigator has reported to the court that the conservatee has expressly communicated that the conservatee (i) is not willing to attend the hearing, (ii) does not wish to contest the continuation of the conservatorship, and (iii) does not object to the current conservator or prefer that another person act as conservator, and the court makes an order that the conservatee need not attend the hearing.
(2) If the conservatee is unable to attend the hearing because of medical inability, that inability shall be established by the affidavit or certificate of a licensed medical practitioner or, if the conservatee is an adherent of a religion whose tenets and practices call for reliance on prayer alone for healing and is under treatment by an accredited practitioner of that religion, by the affidavit of the practitioner. The affidavit or certificate is evidence only of the conservatee’s inability to attend the hearing and shall not be considered in determining the issue of need for the continuation of the conservatorship.
(3) Emotional or psychological instability is not good cause for the absence of the conservatee from the hearing unless, by reason of that instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the conservatee.
(c) Unless the court determines, on the record and by clear and convincing evidence, that (1) the conservatee still meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both; and (2) a conservatorship remains the least restrictive alternative needed for the conservatee’s protection, as required by subdivision (b) of Section 1800.3, the court shall enter judgment terminating the conservatorship.
(d) If the court determines, by clear and convincing evidence, that the conservatee meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both, the court shall determine whether to modify the existing powers of the conservator to ensure that the conservatorship remains the least restrictive alternative needed for the conservatee’s protection and shall order the conservatorship to continue accordingly. If the court modifies the existing powers of the conservator, new letters shall issue.
(e) At the hearing, or thereafter on further notice and hearing, the conservator may be discharged and the bond given by the conservator may be exonerated upon the settlement and approval of the conservator’s final account by the court.
(f) This section does not apply to limited conservatorships.
(g) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.
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