Tag Archives: conservatorship

A conservatorship game changer – California Assembly Bill No. 1194 – two provisions: the right to be represented by an attorney (a zealous, independent advocate), and the clear and convincing standard of proof

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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.

SEC. 6.

Section 1471 of the Probate Code is amended to read:

1471.

(a) If a conservatee, proposed conservatee, or person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in the following proceedings under this division:

(1) A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.

(2) A proceeding to terminate the conservatorship.

(3) A proceeding to remove the conservator.

(4) A proceeding for a court order affecting the legal capacity of the conservatee.

(5) A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence.

(b) If a conservatee or proposed conservatee has not retained legal counsel and does not plan to retain legal counsel, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the 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.

______________________

SEC. 16.

Section 1863 of the Probate Code is amended to read:

1863.

(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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Next in Britney Spears conservatorship? Possibly no changes, or new conservator(s), or the lessening of restrictions, or termination . . . .

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If you have been following the news and developments in Britney Spears’ conservatorship case, undoubtedly you have come to realize that the Judge in a conservatorship case, and, indeed, in almost all probate court cases, has significant discretionary decision-making authority within the parameters of the law and the facts of the specific case.

Most logically it would be up to Ms. Spears to file a petition or petitions with the Court if she wants to change anything significant relating to her conservatorship. Other interested persons also can have legal standing to file their own petitions in the case; however, most likely it would be more persuasive with the Court for Ms. Spears to be the person who would file a petition to remove a conservator or to appoint a new conservator or co-conservator, or to lessen the conservatorship limitations or restrictions on Ms. Spears, or possibly to terminate the conservatorship.

Assuming that the conservatorship continues, and for as long as it continues, the Judge does have the authority to appoint, remove and replace a conservator. In Ms. Spears’ case conservators have already been appointed and added, and have resigned.

California Probate Code section 2650 (Causes for Removal) states the reasons for which a conservator may be removed. Again, the Judge has significant discretion. Section 2650 primarily is focused on the conservator’s actions and inactions and whether or not those actions and inactions are in breach of his or her fiduciary duties. Section 2650 also lists as one criteria the risk that the conservator’s actions might in the future be in breach of his or her fiduciary duties.

Interestingly, section 2650 does not specifically list difficulty or inability of the conservatee and the conservator to communicate or the conservatee’s wishes; however, in Ms. Spears’ situation I would argue that her wishes should carry significant importance, and that the communications and ability to communicate or the lack thereof between Ms. Spears and her conservator also should be considered. Also note that in some situations pertaining to a conservatorship, or to a power of attorney, or to a trust administration, consent or informed consent when possible also might have some relevance – in other words, communicating with the conservatee, or with the principal, or with the settlor/trustor to inquire about her or his wishes won’t necessarily control the decision-making, but those communications and the ability to communicate or not might have relevance.

A conservatorship is a court (i.e., State or Government) action that limits the conservatee’s rights. Thus, it is recognized the restrictions upon a conservatee that a Court orders should be the least restrictive under the circumstances. Accordingly, a conservatorship also can be modified to lessen the restrictions that have been ordered on the conservatee.

Below I have pasted California Probate Code sections 1861, 1862, and 1863 which pertain to terminating a conservatorship. Section 1861 states who has legal standing to petition for termination of the conservatorship. Section 1862 provides that the petition must be brought by way of a noticed hearing.

Section 1863 provides additional legal and procedural requirements including that the conservatee can request a trial by jury, and that witnesses may appear or be presented both in support of the conservatorship and in opposition to the continuance of the conservatorship.

Section 1863(b) provides as follows: “(b) If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.” Thus, in support of termination, it can be argued that the conservatorship is no longer required, and also that the grounds for establishment of the conservatorship no longer exist. Those are two entirely different standards. Depending on the facts of the case, it might be easier to argue to the Court that the grounds for the establishment of the conservatorship no longer exist, or, perhaps, that if the conservatorship petition was just now being brought, under the current facts the conservatorship would not be granted. Both arguments should be made if they can be supported by the current facts.

Section 1863(d) also adds: “(d) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.” Thus, termination of the conservatorship does not mean that a new petition for conservatorship cannot or won’t be brought in the future if it it believed that a conservatorship is again warranted.

The following are California Probate Code sections 1861, 1862 and 1863:

California Probate Code, Conservatorship, Chapter 3, Termination

Probate Code Section 1861

(a) A petition for the termination of the conservatorship may be filed by any of the following:

(1) The conservator.

(2) The conservatee.

(3) The spouse, or domestic partner, or any relative or friend of the conservatee or other interested person.

(b) The petition shall state facts showing that the conservatorship is no longer required.

(Amended by Stats. 2001, Ch. 893, Sec. 21. Effective January 1, 2002.)

Probate Code Section 1862

Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

(Enacted by Stats. 1990, Ch. 79.)

Probate Code Section 1863

(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, or the spouse, or domestic partner, or any relative or friend of the conservatee or other interested person may appear and support or oppose the petition.

(b) If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.

(c) 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.

(d) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.

(Amended by Stats. 2001, Ch. 893, Sec. 22. Effective January 1, 2002.)

There are no Westlaw Notes of Decisions for section 1863 – meaning that there appear to be no California cases that discuss section 1863 or how it is or is not to be applied by the Court.

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Best to you. David Tate, Esq. (and inactive CPA)

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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.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business and Commercial, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

Conservatorship of the Estate of Brokken – Probate Court could not award attorneys’ fees when a conservator was not appointed – plus Tate comments, and a video about mediating conservatorship disputes and cases

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Conservatorship of the Estate of Brokken, California Court of Appeal, Second Appellate District Division Six (March 15, 2021) 2d Civ. No. B303898 (Super. Ct. No. 17PR00194) (Santa Barbara County).

Summary. A petition for the conservatorship of Doris Mae Brokken was filed by her adult children over Doris’ strong objection. It was alleged that Doris suffered from ongoing mental health issues and that her behavior had become increasingly erratic. After two years of litigation and negotiation, the parties settled the matter without the need for a conservatorship. Doris voluntarily agreed to engage in professional mental health services and the petition was dismissed. The petitioners sought to recover their attorney fees as part of the settlement. Doris did not believe they were legally entitled to fees, but to facilitate settlement, she agreed to let the Probate Court decide whether the petitioners are entitled to fees and, if so, the amount of such fees. Petitioners filed a petition requesting the Probate Court to award them attorneys’ fees under Cal. Probate Code §2640.1. Doris opposed the petition. The Court awarded attorneys’ fees. Doris appealed the Court’s decision. On appeal, the Court of Appeal held that petitioners could not petition for an award of attorneys’ fees because no conservator (temporary or permanent) was appointed, and that §2640.1 applied, if at all, only if a conservator is appointed.

I have pasted copies of both Probate Code §§2640.1 and 2640 below.

Takeaway. Brokken is both legally and factually specific. The case does highlight one of the risks that a petitioner takes when filing a petition for conservatorship, i.e., attorneys’ fees incurred. The petitioners would have been able to petition for the recovery of attorneys’ fees if a temporary or permanent conservator was appointed; however, even in that circumstance the Court would have had discretion over the amount of fees to award. An additional difficulty for the petitioners was that Doris would not agree to the recovery of attorneys’ fees in the settlement agreement.  

If Doris had agreed to the recovery of attorneys’ fees in the settlement agreement, and if a petition for Court approval of the settlement agreement had been filed, would the Court have approved the attorneys’ fees? We don’t know. However, and assuming that the settlement agreement did not specify the fees pursuant to §2640.1, my view is that the Court probably would have approved the settlement because the fees would have been agreed upon in the settlement agreement which is a contract.

If Doris had agreed to the recovery of attorneys’ fees in the settlement agreement, but then suit had to be brought to enforce the settlement agreement, would the Court have enforced the payment of attorneys’ fees? Again, we don’t know. However, and assuming that the settlement agreement did not specify the fees pursuant to §2640.1, again my view is that the Court probably would have enforced payment of the fees because the fees would have been agreed upon in the settlement agreement which is a contract.

There are a lot of moving parts in a conservatorship case. You will find other posts about conservatorships in this blog. Here is a link to a copy of a video about mediating conservatorship disputes and cases https://californiaestatetrust.com/2020/08/15/video-you-can-resolve-and-settle-your-convervatorship-dispute-and-case-dave-tate-esq-litigation-disputes-and-mediator-california/

Below I have pasted copies of both Probate Code §§2640.1 and 2640.

California Probate Code §2640.1

(a) If a person has petitioned for the appointment of a particular conservator and another conservator was appointed while the petition was pending, but not before the expiration of 90 days from the issuance of letters, the person who petitioned for the appointment of a conservator but was not appointed and that person’s attorney may petition the court for an order fixing and allowing compensation and reimbursement of costs, provided that the court determines that the petition was filed in the best interests of the conservatee.

(b) Notice of the hearing shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

(c) Upon the hearing, the court shall make an order to allow both of the following:

(1) Any compensation or costs requested in the petition the court determines is just and reasonable to the person who petitioned for the appointment of a conservator but was not appointed, for his or her services rendered in connection with and to facilitate the appointment of a conservator, and costs incurred in connection therewith.

(2) Any compensation or costs requested in the petition the court determines is just and reasonable to the attorney for that person, for his or her services rendered in connection with and to facilitate the appointment of a conservator, and costs incurred in connection therewith.

Any compensation and costs allowed shall be charged to the estate of the conservatee. If a conservator of the estate is not appointed, but a conservator of the person is appointed, the compensation and costs allowed shall be ordered by the court to be paid from property belonging to the conservatee, whether held outright, in trust, or otherwise.

(d) It is the intent of the Legislature for this section to have retroactive effect.

(Amended by Stats. 2006, Ch. 493, Sec. 28. Effective January 1, 2007.)

California Probate Code §2640

(a) At any time after the filing of the inventory and appraisal, but not before the expiration of 90 days from the issuance of letters or any other period of time as the court for good cause orders, the guardian or conservator of the estate may petition the court for an order fixing and allowing compensation to any one or more of the following:

(1) The guardian or conservator of the estate for services rendered to that time.

(2) The guardian or conservator of the person for services rendered to that time.

(3) The attorney for services rendered to that time by the attorney to the guardian or conservator of the person or estate or both.

(b) Notice of the hearing shall be given for the period and in the manner provided for in Chapter 3 (commencing with Section 1460) of Part 1.

(c) Upon the hearing, the court shall make an order allowing (1) any compensation requested in the petition the court determines is just and reasonable to the guardian or conservator of the estate for services rendered or to the guardian or conservator of the person for services rendered, or to both, and (2) any compensation requested in the petition the court determines is reasonable to the attorney for services rendered to the guardian or conservator of the person or estate or both. The compensation allowed to the guardian or conservator of the person, the guardian or conservator of the estate, and to the attorney may, in the discretion of the court, include compensation for services rendered before the date of the order appointing the guardian or conservator. The compensation allowed shall be charged to the estate. Legal services for which the attorney may be compensated include those services rendered by any paralegal performing legal services under the direction and supervision of an attorney. The petition or application for compensation shall set forth the hours spent and services performed by the paralegal.

(d) Notwithstanding subdivision (c), the guardian or conservator shall not be compensated from the estate for any costs or fees that the guardian or conservator incurred in unsuccessfully opposing a petition, or other request or action, made by or on behalf of the ward or conservatee, unless the court determines that the opposition was made in good faith, based on the best interests of the ward or conservatee.

(e) Notwithstanding subdivision (c), the guardian, conservator, or attorney shall not be compensated with any government benefits program moneys unless deemed by the court as necessary to sustain the support and maintenance of the ward or conservatee, but in no event may this exceed the amount permitted by federal laws and regulations.

(Amended by Stats. 2019, Ch. 847, Sec. 6. (SB 303) Effective January 1, 2020.)

Best to you. David Tate, Esq. (and inactive CPA)

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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.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

Comments about Britney Spears’ conservatorship following the February 11 hearing . . .

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As you might be aware, it is still very difficult for the public to obtain information about the proceedings in the Spears conservatorship. That fact is unusual as the general rule is that court proceedings are supposed to be, and are required to be open to the public, unless there is very good reason for some, or all, of the proceeding to not be open. Court proceedings are open to the public unless the Court makes a ruling otherwise. But, again, the presumption and legal principle that a court proceeding will be open to the public is very strong.

My understanding, based on what I have been able to read, is that following the February 11, hearing, Bessemer Trust and Jamie Spears remain as co-conservators of the estate, apparently with equal shared powers and authority. And that Jodi Montgomery remains as the conservator of the person.

This conservatorship is an ongoing saga. Current primary issues appear to include at least the following:

Will the conservatorship of the estate continue as it is, or be modified, or be terminated?

Will Jamie Spears continue as co-conservator of the estate as it is, or will his powers and authorities be modified, or will his appointment as co-conservator of the estate be terminated?

How will Bessemer Trust and Jamie Spears be able to work together as co-conservators of the estate? Will they be able to work together?

How much weight will the Court give to the requests for changes in the conservatorship that are being made by Britney Spears?

Will any of the issues and orders at the trial Court level be taken up on appeal?

And, perhaps, will the conservatorship of the person continue as it is, or be modified, or be terminated?

The following are a few additional observations:

Generally, conservators are required to communicate with the conservatee and to ask her about her wishes on important matters. However, that doesn’t bind the conservator to the conservatee’s wishes. The Court also should take the conservatee’s wishes into consideration.

Less restrictive options to the conservatorship and to the terms of the conservatorship must be taken into consideration by the Court and the parties. A conservatorship is a restriction on the rights of the conservatee.

On some issues the conservatee is entitled to a jury trial. Otherwise, the Judge has very significant authority to decide issues in a conservatorship, but those decisions must be made based on and in accordance with the applicable laws, the various burdens of poof that might apply, the standards of decision making that might apply (e.g., preponderance of the evidence or some higher standard), and the evidence.

Unless the court orders otherwise, if two co-conservators are ordered, the two co-conservators both must “concur” to exercise a power. Cal. Probate Code §2105. Other than whether either or both of the conservatorships of the estate and of the person will continue, or be modified, or be terminated, I would view the interactions between Bessemer Trust and Jamie Spears as probably being the most difficult and pressing issue. News reports indicate or suggest that there are ongoing disagreements over co-conservator scope of authority and possibly co-conservator decision making and ability to agree. Disagreements of those types could prompt the Court to make changes to its co-conservator order. See, e.g., Cal. Probate Code §§2105.5, and Chapter 9 including §2650, in addition to other Probate Code sections.

Best to you. David Tate, Esq.

As the mediator – I facilitated a trust dispute settlement yesterday (and into the night)

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Success stories are good to report. As the mediator I helped the parties and their counsel reach settlement in a trust dispute case yesterday and last night. I cannot say anything specific about the case or the mediation, of course. There were multiple contentious issues about which the parties held strong viewpoints. But all of the parties and their counsel prepared well for the mediation and kept working toward resolution into the night. The parties and their counsel are to be congratulated for their successful resolution – and they will be much better off and happier having resolved their dispute.

Best to you. David Tate, Esq.

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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.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *  

Headline says Britney Spears wants conservatorship case to be open to the public: – and related conservatorship legal issues . . . .

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I have provided immediately below a snapshot from a September 3, 2020, Today article headline on Yahoo Entertainment relating to the Britney Spears conservatorship, and a request that the conservatorship case be made open to the public.

Although the length of time that the conservatorship has been in place really has nothing to do with the issues in the case – nevertheless, although the conservatorship has been in place for 12 years, other than news stories, which might or might not be entirely accurate and for the most part do not contain a full discussion or a discussion from the legal perspective, it has been very difficult if not impossible to determine what legal arguments have been made, the actual evidence that has been presented, and the basis for the court’s rulings in the case. Will that be changing in the future . . . well, we don’t know, but it might be.

More and more headlines about the case are now appearing in the news, and they raise interesting legal issues as they pertain to conservatorships and court proceedings in general. Historically there have been few California appellate decisions relating to conservatorship proceedings and conservatee rights, but that has slowing been changing. For example, in more recent California appellate court conservatorship cases it has been held that in a conservatorship there is a right to a jury trial (at least on the issue of whether or not there should be a conservatorship) whereas in probate court cases in general there is no such right, and at least on conservatorship issues that involve fundamental rights the burden of proof that is applied is clear and convincing (which is a heightened standard, that requires stronger evidence before the limitation is justified and can be ordered).

Although different courts have used different wording to describe various burdens of proof, the following descriptions have been used:

  • The preponderance of the evidence burden is essentially more likely than not.
  • The beyond a reasonable doubt burden is designed to exclude as nearly as possible the likelihood of an erroneous judgment and imposes almost the entire risk of error upon the party bearing the burden of proof.
  • The clear and convincing burden is an intermediate standard that increases the burden on the party seeking relief requiring a finding of high probability, based on evidence so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.

Another requirement in a conservatorship is that the court, and thus also the parties, must consider whether there are workable options that are less restrictive than a conservatorship, or that are less restrictive than a full conservatorship, or that are less restrictive with respect to some of the issues and the prospective conservatee or conservatee’s alleged needs, limitations and deficiencies. Whether or not there is a conservatorship, or whether a conservatorship continues and in what form and under what authorities, rights and restrictions, is not supposed to be based on a medical or other diagnosis – it is based on actual needs, limitations and deficiencies that are established based on the factual evidence pertaining to the prospective conservatee or conservatee’s abilities to act and make decisions on behalf of herself or himself and to protect herself or himself and her or his interests, and the limitations therein that exist.

In that regard, facts and circumstances can change over time; thus, when a conservatorship is granted, that conservatorship also is scheduled for review by the court to determine whether facts and circumstances or the conservatee’s abilities and needs have changed. An interested person who has sufficient standing also can file a petition requesting that some or all of the aspects of the conservatorship be changed, including a request that the conservatorship be terminated, or that other changes be made.   

Regarding whether the case is open to the public, the general and overriding legal principle is that cases are open to the public unless it can be established that a case should not be public based on the particular facts of that case. A conservatorship proceeding is a legal proceeding in which the state (i.e., the government through the court) is being requested to take away or limit some, or sometimes many or most, of the prospective conservatee’s important personal, constitutional, and fundamental legal decision making and other rights and freedoms.

I’m assuming that Britney Spears’ case has not been public because previously she either requested, or she at least agreed or did not oppose, that the case would not be open to the public. That certainly would not be surprising given privacy and public image issues or concerns. Nevertheless, those concerns could exist in every conservatorship case, although not necessarily to the extent that they might exist in a case that involves a very public figure. How much bearing should the extent that a prospective conservatee or an existing conservatee is a public figure have on whether or not the case is open to the public? I haven’t researched for those court decisions, but the issue might already have been briefed in Britney Spears’ case.

As the above headline indicates, if in fact Ms. Spears is now requesting that her case be open to the public, as she in fact might be requesting especially as various other headlines appear to have indicated that she is starting to fight and oppose the conservatorship or at least parts of it, a strong argument can be made that her case should be open to the public.

Some of these similar issues and principles were at play a few years back in one of my cases in which it was difficult to convince a court to seal previously filed pleadings and declarations in a case that involved significant privacy issues (a prior, years ago completed sexual harassment case in which the victim now was requesting that the court seal the records). There are three primary reasons why legal proceedings generally and in principle are open to the public absent strong evidence and legal authority to the contrary, and a court order:

(1) to demonstrate that justice is meted out fairly,

(2) to provide a means by which citizens scrutinize and check the use and possible abuse of judicial power, and

(3) to enhance the truthfinding function of the proceeding.

NBC Subsidiary (KNBC-TV), Inc. v. Superior Court of Los Angeles County (1999) 20 Cal. 4th 1178, 1219.

Thus, if Ms. Spears is in fact requesting that her conservatorship case now be open to the public, there is a strong legal principle that supports her request. Of course, that doesn’t mean that such a request will be granted, but that is what makes the law and court proceedings what they are.

More to follow on this interesting case.

Below you will also find two short videos, one discussing resolution and settlement of conservatorship disputes and cases, and the other providing a summary overview of my mediator qualifications and experience. Best to you, Dave Tate.

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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.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

 

Video – You Can Resolve And Settle Your Convervatorship Dispute And Case – Dave Tate, Esq., Litigation, Disputes, And Mediator – California

Posted on by

Greetings to all of my friends, colleagues, and connections, and other people who are interested – below is a short video discussing resolution and settlement of conservatorship disputes and cases. Please contact me if I can help you settle your case or dispute. Best to you, Dave Tate

Below I have also provided my video with a summary overview of my mediator qualifications and experience:

———————————————————————-

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.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

Video – Dave Tate, Esq. Mediator Qualifications and Experience Introduction – California

Posted on by

Greetings to all of my friends, colleagues, and connections, and other people who are interested – below is a short video discussing my mediator qualifications and experience – please contact me if I can help you settle your case or dispute. Best to you, Dave Tate

———————————————————————-

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.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

Working on Slides and a Video – You Can Resolve and Settle Your Conservatorship Dispute, Issues and Case

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Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com – Litigation, Governance, Administrations, Investigations, Mediator & Conflict Resolution

Greetings All: I am working on some materials (slides and an anticipated video) which I have titled: You Can Resolve and Settle Your Conservatorship Dispute, Issues and Case. I am aiming for the materials will be completed by the beginning of next week.

In a conservatorship there are a lot of potential moving parts and issues, and relationships, and they can be present before the initiation of a conservatorship petition, during the initial petition stage, and at all later times including during review of a conservatorship that has been approved – for example, below are some of the potential moving parts, issues and relationships:

  • Are there options that are less restrictive than a conservatorship?
  • Is or will it be a conservatorship of the estate?
  • Is or will it be a conservatorship of the person?
  • Does the conservatee have or need an attorney?
  • Will it be a court trial or a jury trial?
  • Is who the conservator will be an issue?
  • 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 re the proposed/conservatee’s capacity?
  • Are there conservator special power issues?
  • Who are all of the people who are involved in the dispute or unresolved 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 about issues – financial, physical, undue influence, emotional, abandonment, etc.?
  • 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 in dispute or are unresolved?
  • And also consider the other areas, and related issues, from my mediation and conflict resolution hexagon matrix.

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

Litigation, Governance, Administrations, Investigations, Mediator & Conflict Resolution

———————————————————————-

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.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

 

Summary of California Trustee and Beneficiary Responsibilities and Rights, and Handling Contentious Trust Administrations and Other Family Situations (PPT slides saved as PDF)

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The following is a link to a PDF of my PowerPoint slides for a Summary of California Trustee and Beneficiary Responsibilities and Rights, and Handling Contentious Trust Administrations and Other Family Situations: David Tate, Esq. – Summary of California Trustee and Beneficiary Responsibilities and Rights 02252020 Slides Saved as PDF

And below is a snapshot of page 1 of the slides. Best to you, Dave Tate, Esq.