In a conservatorship there are a lot of moving parts, issues and relationships before the petition is filed, during the adjudication of the petition, and at all later times during the administration and review.
The following are some of the typical potential moving parts, issues and relationships that you will or may find in a California conservatorship.
- Are there options that are less restrictive than a conservatorship?
- Is it a conservatorship of the estate?
- Is it a conservatorship of the person?
- Does the proposed conservatee have or need an attorney?
- Will it be a court trial or a jury trial?
- Is there an issue about who the conservator will be?
- Are there placement or housing issues?
- Are there medical care and treatment, or related capacity issues?
- Are there medication issues?
- Are there daily living needs issues?
- Are there caregiver issues?
- Are there other issues pertaining to the proposed conservatee or the proposed conservatee’s abilities and capacity?
- Are there conservator special power issues?
- Who are all of the people who are involved in the dispute and the various issues?
- Are there relationship issues between the people who are involved?
- Are there spouse or domestic partner, or girlfriend or boyfriend issues?
- Are there visitation issues?
- Are there elder or dependent adult abuse issues – financial, physical, undue influence, emotional, abandonment, etc.?
- Are there expert witnesses and expert witness issues?
- Are there liquidity or sufficiency of assets issues?
- Are there estate planning or benefits needs?
- Are there voting issues?
- Are there married or marrying issues?
- What facts and circumstances and issues are fluid, i.e., changing (undoubtedly some are)?
- What options are available for each of the issues that are still in dispute?
- What burden of proof standards apply?
- Are there possible restraining order issues – see my 2022 blog posts (click link below) discussing California Assembly Bill No. 1243 (in part expanding the definition of an “interested party” who has legal standing to petition the court for a restraining order to enjoin (i.e., to stop and prevent) elder and dependent adult isolation abuse, and recent case White v. Wear at https://wordpress.com/post/californiaestatetrust.com/2464.
Also consider whether aspects of California Assembly Bill No. 1194, Conservatorship, might apply. Assembly Bill No. 1194 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 in Assembly Bill No. 1194 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 in Assembly Bill No. 1194 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 Assembly Bill No. 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 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) in reference to the attorney being a “zealous, independent advocate representing the wishes of their client”).
See also my November 10, 2021, post in which I copied and pasted the new amended Probate Code sections 1471 and 1863 https://wordpress.com/post/californiaestatetrust.com/2367
If you are interested in conservatorship topics, for additional posts search by using the word “conservatorship” on the home page of this blog.
Thanks for reading.
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Best to you,
David Tate, Esq. (and inactive CPA)
- Litigation, Disputes and Trials – Business, Contract/Commercial, Owner, Founder, Shareholder and Investor; Trust, Estate, Probate, Elder/Dependent Abuse, Conservatorships, POA, Real Property, Health and Care, and Contentious Administrations, etc.
- Mediator and Dispute Resolution
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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.