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