Amended  IN  Assembly  March 22, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1194


Introduced by Assembly Member Low
(Coauthors: Senators Allen and Laird)

February 18, 2021


An act to amend Sections 6501, 6582, and 6592 of, to add Sections 6563 and 6584.5 to, and to add Article 3.5 (commencing with Section 6550) to Chapter 6 of Division 3 of, the Business and Professions Code, and to amend Sections 1051, 1457, 1826, 2253, 2401, 2623, 2640, 2641, and 2653 of, to add Sections 1821.5 and 2112 to, and to add and repeal Section 1458 of, the Probate Code, relating to conservatorship.


LEGISLATIVE COUNSEL'S DIGEST


AB 1194, as amended, Low. Conservatorship.
Existing law, the Guardianship-Conservatorship Law generally establishes the standards and procedures for the appointment and termination of an appointment for a guardian or conservator of a person, an estate, or both. Existing law, the Professional Fiduciaries Act, establishes the Professional Fiduciaries Bureau within the Department of Consumer Affairs, and requires the bureau to license and regulate professional fiduciaries. The act defines a “professional fiduciary” as, among other things, a person who acts as a guardian or conservator of the person, the estate, or the person and estate, for 2 or more individuals at the same time who are not related to the professional fiduciary or to each other. Existing law authorizes the bureau to set various fees relating to the licensure of professional fiduciaries at amounts necessary to recover the reasonable regulatory costs.
This bill would authorize the bureau to regulate the registration of nonprofessional conservators and would define a “nonprofessional conservator” as a person who acts as a conservator of the person, the estate, or both, for no more than one individual. The bill would prohibit the initial registration and renewal registration fees for a nonprofessional conservator from exceeding unspecified amounts. The bill would require a nonprofessional conservator to be licensed by or registered with the bureau.
Existing law authorizes the bureau to suspend, revoke, deny, or impose other disciplinary action on the license of a professional fiduciary for specified causes, including, among other things, a violation of specified provisions of the Guardianship-Conservatorship Law. Existing law requires a proceeding against a licensed professional fiduciary for a violation of the Professional Fiduciaries Act to be conducted in accordance with specified administrative hearing procedures, as provided.
This bill would extend the above-described requirement to proceedings against registered nonprofessional conservators. The bill would require the bureau to revoke a professional fiduciary’s or nonprofessional conservator’s license or registration if a court finds they have not acted in the best interests of their client. If the court finds that a conservator has not acted in the best interests of a conservatee, the bill would make the conservator liable for a civil penalty of up to $50,000, payable to the estate of the conservatee.
Existing law requires a court investigator to undertake specified actions regarding a proposed conservatee, including interviewing the proposed conservatee.
This bill would require a court investigator to gather relevant medical reports regarding a proposed conservatee, including at least one report from their primary care physician. The bill would require a court investigator to report to the bureau if they undertake an investigation of a fiduciary.
Existing law prohibits a guardian or trustee who is not a trust company from hiring or referring business to an entity in which the guardian or trustee has a financial interest, except upon authorization of the court. Existing law prohibits compensating a guardian or trustee from the estate for the costs or fees they incurred in unsuccessfully opposing a petition or other action made by or on behalf of a ward or conservatee, unless the court determines the opposition was made in good faith, based on the best interests of the ward or conservatee. If the court removes the guardian or conservatee for cause, existing law requires the court to award the petitioner for that removal the costs of the petition and other expenses and costs of litigation, unless the court determines the guardian or conservator acted in good faith, based on the best interests of the ward or conservatee.
This bill would eliminate the court’s discretion to authorize a guardian or trustee who is not a trust company to hire or refer business to an entity in which they have a financial interest. The bill would eliminate the court’s discretion to compensate a guardian or conservator from the estate for the costs or fees they incurred in unsuccessfully opposing a petition or other action made by or on behalf of a ward or conservatee, and would instead prohibit a guardian or conservator from being compensated from the estate for the costs or fees they incurred in unsuccessfully defending a reduction or denial of their compensation. The bill would require the court to award the costs of the petition and other expenses and costs of litigation to a successful petitioner if a guardian or conservatee is removed for cause. The bill would require the Judicial Council to report to the Legislature, on or before January 1, 2023, regarding specified findings and recommendations on court effectiveness in conservatorship cases.

Existing law provides for a conservator of the person or estate to be appointed for a person who is gravely disabled. Existing law, for the purpose of conservatorship, defines “gravely disabled,” among other things, as a condition in which a person, as a result of a mental health disorder, is unable to provide for the person’s basic personal needs for food, clothing, or shelter.

This bill would state the intent of the Legislature to enact legislation to reform the conservatorship process.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 6501 of the Business and Professions Code is amended to read:

6501.
 As used in this chapter, the following terms have the following meanings:
(a) “Act” means this chapter.
(b) “Bureau” means the Professional Fiduciaries Bureau within the Department of Consumer Affairs, established pursuant to Section 6510.
(c) “Client” means an individual who is served by a professional fiduciary.
(d) “Department” means the Department of Consumer Affairs.
(e) “Licensee” means a person who is licensed under this chapter as a professional fiduciary.
(f) (1) “Professional fiduciary” means either of the following:
(A) A person who acts as a guardian or conservator of the person, the estate, or the person and estate, for two or more individuals at the same time who are not related to the professional fiduciary or to each other.
(B) A personal representative of a decedent’s estate, as defined in Section 58 of the Probate Code, for two or more individuals at the same time who are not related to the professional fiduciary or to each other.
(2) “Professional fiduciary” also means a person who acts as a trustee, agent under a durable power of attorney for health care, or agent under a durable power of attorney for finances, for more than three individuals, at the same time.
In counting individuals under this paragraph to determine whether a person is a professional fiduciary:
(A) Individuals who are related to the fiduciary shall not be counted.
(B) All individuals who are related to each other shall be counted as one individual.
(C) All trustors who are related to each other shall be counted as one individual, and neither the number of trusts nor the number of beneficiaries of those trusts shall be counted.
(3) For purposes of this subdivision, “related” means related by blood, adoption, marriage, or registered domestic partnership.
(4) “Professional fiduciary” does not include any of the following:
(A) A trust company, as defined in Section 83 of the Probate Code.
(B) An FDIC-insured institution, or its holding companies, subsidiaries, or affiliates. For the purposes of this subparagraph, “affiliate” means any entity that shares an ownership interest with, or that is under the common control of, the FDIC-insured institution.
(C) Any public agency, including the public guardian, public conservator, or other agency of the State of California or of a county of California or any regional center for persons with developmental disabilities as defined in Section 4620 of the Welfare and Institutions Code.
(D) Any nonprofit corporation or charitable trust that is described in Section 501(c)(3) of the Internal Revenue Code and that satisfies all of the following requirements:
(i) Is an organization described in Section 509(a)(1), Section 509(a)(2), or Section 509(a)(3) of the Internal Revenue Code.
(ii) Has been in existence for at least five years.
(iii) Has total institutional funds as described in subdivision (e) of Section 18502 of the Probate Code according to its most recent audited financial statement with a value of at least two million dollars ($2,000,000) net of encumbrances.
(iv) Is acting as a trustee, incidental to the purposes for which it was organized, of a trust that meets at least one of the following conditions:
(I) It is a trust from which annual distributions are limited to income, a sum certain, or a fixed percentage of the net fair market value of the trust assets as described in Section 664(d) of the Internal Revenue Code governing charitable remainder trusts.
(II) It is a trust from which annual distributions are limited to a guaranteed annuity or a fixed percentage of the fair market value of the property as described in Section 2055(e)(2)(B) or Section 2522(c)(2)(B) of the Internal Revenue Code.
(III) It is a trust from which annual distributions are limited to income, including a pooled income fund from which annual distributions are limited to income as described in Section 642(c)(5) of the Internal Revenue Code governing pooled income funds.
(IV) It is a trust as to which the value of the charitable interest was presently ascertainable upon creation of the trust and deductible for federal gift, estate, or income tax purposes under the Internal Revenue Code as in effect prior to before enactment of the federal Tax Reform Act of 1969 (Public Law 91-172).
(E) A person employed by or acting as an agent on behalf of an entity or agency described in subparagraph (A), (B), (C), or (D) who is acting within the course and scope of that employment or agency, and a public officer of an agency described in subparagraph (C) acting in the course and scope of official duties.
(F) Any person whose sole activity as a professional fiduciary is as a broker-dealer, broker-dealer agent, investment adviser, or investment adviser representative registered and regulated under the Corporate Securities Law of 1968 (Division 1 (commencing with Section 25000) of Title 4 of the Corporations Code), the Investment Advisers Act of 1940 (15 U.S.C. Sec. 80b-1 et seq.), or the Securities Exchange Act of 1934 (15 U.S.C. Sec. 78a et seq.), or involves serving as a trustee to a company regulated by the Securities and Exchange Commission under the Investment Company Act of 1940 (15 U.S.C. Sec. 80a-1 et seq.).
(g) “Committee” means the Professional Fiduciaries Advisory Committee, as established pursuant to Section 6511.
(h) “Nonprofessional conservator” means a person who acts as a conservator of the person, the estate, or both, for no more than one individual.
(i) “Registrant” means a person who is registered under this chapter as a nonprofessional conservator.

SEC. 2.

 Article 3.5 (commencing with Section 6550) is added to Chapter 6 of Division 3 of the Business and Professions Code, to read:
Article  3.5. Registered Nonprofessional Conservators

6550.
 (a) To obtain an initial registration as a nonprofessional conservator, an applicant shall do both of the following:
(1) Complete a minimum of 10 hours of training on financial abuse and, if the client is over the age of 65, elder abuse.
(2) Submit to the bureau an initial application on a form prescribed by the bureau that shall contain all of the following:
(A) A statement that the applicant requests the issuance of a nonprofessional conservator registration.
(B) The fee prescribed by this chapter.
(b) An initial registration shall expire 5 years after the date of issuance.

6551.
 To obtain a renewal registration as a nonprofessional conservator, an applicant shall do both of the following:
(a) Complete a minimum of 10 hours of continuing education in accordance with the requirements of Section 166. The continuing education shall include courses on financial abuse and, if the client is over the age of 65, elder abuse.
(b) Submit to the bureau a renewal application on a form prescribed by the bureau that shall contain all of the following:
(1) A statement that the applicant requests the renewal of a nonprofessional conservator registration.
(2) The fee prescribed by this chapter.

SEC. 3.

 Section 6563 is added to the Business and Professions Code, immediately following Section 6562, to read:

6563.
 A licensee with an internet website shall post on that internet website a schedule of fees charged for services offered.

SEC. 4.

 Section 6582 of the Business and Professions Code is amended to read:

6582.
 All proceedings against a licensee or a registrant for any violation of this chapter or any regulations adopted by the bureau shall be conducted in accordance with the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code), and shall be prosecuted by the Attorney General’s office, and the bureau shall have all the powers granted therein.

SEC. 5.

 Section 6584.5 is added to the Business and Professions Code, immediately following Section 6584, to read:

6584.5.
 A license or registration issued under this chapter shall be revoked if the licensee or registrant does not act in the best interests of their client.

SEC. 6.

 Section 6592 of the Business and Professions Code is amended to read:

6592.
 (a) The fee for a professional fiduciary examination and reexamination shall be set by the bureau through regulation at the amount necessary to recover the actual costs to develop and administer the examination.
(b) The license fee to obtain a professional fiduciary license shall be set by the bureau.
(c) The renewal fee for a professional fiduciary license shall be set by the bureau.
(d) The bureau shall set the fee to designate a license status of “retired.”
(e) The fee to designate a license status of “inactive” shall be set by the bureau.
(f) The bureau shall set the fee to reinstate a license to “active” from a status of “retired” or “inactive.”
(g) The bureau shall set the fees pursuant to subdivisions (b), (c), (d), (e), and (f) by regulation at an amount necessary to recover the reasonable costs to the bureau in carrying out those functions pursuant to this chapter.
(h) The initial registration fee to obtain a nonprofessional conservator registration shall not exceed ___ dollars ($____).
(i) The renewal fee to obtain a nonprofessional conservator registration shall not exceed ____ dollars ($____).

SEC. 7.

 Section 1051 of the Probate Code is amended to read:

1051.
 (a) In the absence of a stipulation to the contrary between parties who have filed pleadings in a proceeding under this code, there shall be no ex parte communications between any party, or attorney for the party, and the court concerning a subject raised in those pleadings, except as permitted or required by law.
(b) Notwithstanding subdivision (a), in any case upon which the court has exercised its jurisdiction, the court may refer to the court investigator or take other appropriate action in response to an ex parte communication regarding either or both of the following: (1) a
(1) A fiduciary, as defined in Section 39, about the fiduciary’s performance of his or her duties and responsibilities, and (2) a their duties and responsibilities.
(2) A person who is the subject of a conservatorship or guardianship proceeding under Division 4 (commencing with Section 1400). Any
(c) An action by the court pursuant to this subdivision (b) shall be consistent with due process and the requirements of this code. The court shall disclose the ex parte communication to all parties and counsel. The court may, for good cause, dispense with the disclosure if necessary to protect the ward or conservatee from harm.

(c)The Judicial Council shall, on or before January 1, 2008, adopt a rule of court to implement this section.

(d)Subdivisions (a) and (b) of this section shall become operative on January 1, 2008.

(d) If the court investigator undertakes an investigation of a fiduciary pursuant to subdivision (b), the court investigator shall report to the Professional Fiduciaries Bureau that an investigation is ongoing.
(e) A superior court shall not be required to perform any duties imposed by this section until the Legislature makes an appropriation identified for this purpose.

SEC. 8.

 Section 1457 of the Probate Code is amended to read:

1457.
 In order to assist relatives and friends who may seek appointment as a nonprofessional conservator or guardian conservator, as defined in Section 6501 of the Business and Professions Code, or nonprofessional guardian, the Judicial Council shall, on or before January 1, 2008, develop a short educational program of no more than three hours that is user-friendly and shall make that program available free of charge to each proposed conservator and guardian and each court-appointed conservator and guardian who is not required to be licensed as a professional conservator or guardian pursuant to Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code. The program may be available by video presentation or Internet access.

SEC. 9.

 Section 1458 is added to the Probate Code, to read:

1458.
 (a) On or before January 1, 2023, the Judicial Council shall report to the Legislature the findings of a study measuring court effectiveness in conservatorship cases. The report shall include all of the following, with respect to the courts chosen for evaluation pursuant to subdivision (b):
(1) A summary of caseload statistics, including both temporary and permanent conservatorships, bonds, court investigations, accountings, and use of professional conservators.
(2) An analysis of compliance with statutory timeframes.
(3) A description of any operational differences between courts that affect the processing of conservatorship cases, including timeframes.
(b) The Judicial Council shall select three courts for the evaluation required by this section.
(c) The report shall include recommendations for statewide performance measures to be collected, best practices that serve to protect the rights of conservatees, and staffing needs to meet case processing measures.
(d) The report shall be submitted pursuant to Section 9795 of the Government Code.
(e) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.

SEC. 10.

 Section 1821.5 is added to the Probate Code, to read:

1821.5.
 A nonprofessional conservator, as defined in Section 6501 of the Business and Professions Code, shall be licensed by or registered with the Professional Fiduciaries Bureau, pursuant to Article 3.5 (commencing with Section 6550) of Chapter 6 of Division 3 of the Business and Professions Code.

SEC. 11.

 Section 1826 of the Probate Code is amended to read:

1826.
 (a) Regardless of whether the proposed conservatee attends the hearing, the court investigator shall do all of the following:
(1) Conduct the following interviews:
(A) The proposed conservatee personally.
(B) All petitioners and all proposed conservators who are not petitioners.
(C) The proposed conservatee’s spouse or registered domestic partner and relatives within the first degree. If the proposed conservatee does not have a spouse, registered domestic partner, or relatives within the first degree, to the greatest extent possible, the proposed conservatee’s relatives within the second degree.
(D) To the greatest extent practical and taking into account the proposed conservatee’s wishes, the proposed conservatee’s relatives within the second degree not required to be interviewed under subparagraph (C), neighbors, and, if known, close friends.
(2) Inform the proposed conservatee of the contents of the citation, of the nature, purpose, and effect of the proceeding, and of the right of the proposed conservatee to oppose the proceeding, to attend the hearing, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.
(3) Determine if it appears that the proposed conservatee is unable to attend the hearing and, if able to attend, whether the proposed conservatee is willing to attend the hearing.
(4) Review the allegations of the petition as to why the appointment of the conservator is required and, in making his or her the determination, do the following:
(A) Refer to the supplemental information form submitted by the petitioner and consider the facts set forth in the form that address each of the categories specified in paragraphs (1) to (5), inclusive, of subdivision (a) of Section 1821.
(B) Consider, to the extent practicable, whether he or she the court investigator believes the proposed conservatee suffers from any of the mental function deficits listed in subdivision (a) of Section 811 that significantly impairs the proposed conservatee’s ability to understand and appreciate the consequences of his or her the proposed conservatee’s actions in connection with any of the functions described in subdivision (a) or (b) of Section 1801 and identify the observations that support that belief.
(5) Determine if the proposed conservatee wishes to contest the establishment of the conservatorship.
(6) Determine if the proposed conservatee objects to the proposed conservator or prefers another person to act as conservator.
(7) Determine if the proposed conservatee wishes to be represented by legal counsel and, if so, whether the proposed conservatee has retained legal counsel and, if not, the name of an attorney the proposed conservatee wishes to retain.
(8) (A) Determine if the proposed conservatee is incapable of communicating, with or without reasonable accommodations, a desire to participate in the voting process, and may be disqualified from voting pursuant to Section 2208 of the Elections Code.
(B) The proposed conservatee shall not be disqualified from voting on the basis that he or she the proposed conservatee does, or would need to do, any of the following to complete an affidavit of voter registration:
(i) Signs the affidavit of voter registration with a mark or a cross pursuant to subdivision (b) of Section 2150 of the Elections Code.
(ii) Signs the affidavit of voter registration by means of a signature stamp pursuant to Section 354.5 of the Elections Code.
(iii) Completes the affidavit of voter registration with the assistance of another person pursuant to subdivision (d) of Section 2150 of the Elections Code.
(iv) Completes the affidavit of voter registration with reasonable accommodations.
(9) If the proposed conservatee has not retained legal counsel, determine if the proposed conservatee desires the court to appoint legal counsel.
(10) Determine if the appointment of legal counsel would be helpful to the resolution of the matter or is necessary to protect the interests of the proposed conservatee in a case where the proposed conservatee does not plan to retain legal counsel and has not requested the appointment of legal counsel by the court.
(11) Gather relevant medical reports regarding the proposed conservatee, including at least one report from the proposed conservatee’s primary care physician. The reports shall be kept confidential pursuant to the federal Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191), unless the court approves a subpoena for the reports.

(11)

(12) Report to the court in writing, at least five days before the hearing, concerning all of the foregoing, including the proposed conservatee’s express communications concerning both of the following:
(A) Representation by legal counsel.
(B) If the proposed conservatee is not willing to attend the hearing, does not wish to contest the establishment of the conservatorship, and does not object to the proposed conservator or prefers that another person act as conservator.

(12)

(13) Deliver pursuant to Section 1215, at least five days before the hearing, a copy of the report referred to in paragraph (11) to all of the following:
(A) The attorney, if any, for the petitioner.
(B) The attorney, if any, for the proposed conservatee.
(C) The proposed conservatee.
(D) The spouse, registered domestic partner, and relatives within the first degree of the proposed conservatee who are required to be named in the petition for appointment of the conservator, unless the court determines that the delivery will harm the conservatee.
(E) Any other persons as the court orders.
(b) The court investigator has discretion to release the report required by this section to the public conservator, interested public agencies, and the long-term care ombudsperson.
(c) The report required by this section is confidential and shall be made available only to parties, persons described in paragraph (12) of subdivision (a), persons given notice of the petition who have requested this report or who have appeared in the proceedings, their attorneys, and the court. The court has discretion at any other time to release the report, if it would serve the interests of the conservatee. The clerk of the court shall provide for the limitation of the report exclusively to persons entitled to its receipt.
(d) This section does not apply to a proposed conservatee who has personally executed the petition for conservatorship, or a proposed conservatee who has nominated his or her their own conservator, if he or she the proposed conservatee attends the hearing.
(e) If the court investigator has performed an investigation within the preceding six months and furnished a report thereon to the court, the court may order, upon good cause shown, that another investigation is not necessary or that a more limited investigation may be performed.
(f) An investigation by the court investigator related to a temporary conservatorship also may be a part of the investigation for the general petition for conservatorship, but the court investigator shall make a second visit to the proposed conservatee and the report required by this section shall include the effect of the temporary conservatorship on the proposed conservatee.
(g) The Judicial Council shall, on or before January 1, 2009, adopt rules of court and Judicial Council forms as necessary to implement an expedited procedure to authorize, by court order, a proposed conservatee’s health care provider to disclose confidential medical information about the proposed conservatee to a court investigator pursuant to federal medical information privacy regulations promulgated under the federal Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191).
(h) A superior court shall not be required to perform any duties imposed pursuant to the amendments to this section enacted by Chapter 493 of the Statutes of 2006 until the Legislature makes an appropriation identified for this purpose.

SEC. 12.

 Section 2112 is added to the Probate Code, to read:

2112.
 (a) In addition to other remedies available under statutory or common law, if the court finds that a conservator has not acted in the best interests of the conservatee, the conservator shall be liable for a civil penalty of up to fifty thousand dollars ($50,000), payable to the estate of the conservatee.
(b) If the court finds that a professional fiduciary or a nonprofessional conservator has not acted in the best interests of their client, the Professional Fiduciary Bureau shall revoke the professional fiduciary’s or the nonprofessional conservator’s license or registration.
(c) For purposes of this section, “professional fiduciary” and “nonprofessional conservator” have the same meanings as defined in Section 6501 of the Business and Professions Code.

SEC. 13.

 Section 2253 of the Probate Code is amended to read:

2253.
 (a) If a temporary conservator of the person proposes to fix the residence of the conservatee at a place other than that where the conservatee resided prior to before the commencement of the proceedings, that power shall be requested of the court in writing, unless the change of residence is required of the conservatee by a prior court order. The request shall be filed with the petition for temporary conservatorship or, if a temporary conservatorship has already been established, separately. The request shall specify in particular the place to which the temporary conservator proposes to move the conservatee, and the precise reasons why it is believed that the conservatee will suffer irreparable harm if the change of residence is not permitted, and why no means less restrictive of the conservatee’s liberty will suffice to prevent that harm.

(b)Unless the court for good cause orders otherwise, the court investigator shall do all of the following:

(b) The court investigator shall do all of the following:
(1) Interview the conservatee personally.
(2) Inform the conservatee of the nature, purpose, and effect of the request made under subdivision (a), and of the right of the conservatee to oppose the request, attend the hearing, be represented by legal counsel if the conservatee so chooses, and to have legal counsel appointed by the court if unable to obtain legal counsel.
(3) Determine whether the conservatee is unable to attend the hearing because of medical inability and, if able to attend, whether the conservatee is willing to attend the hearing.
(4) Determine whether the conservatee wishes to oppose the request.
(5) Determine whether the conservatee wishes to be represented by legal counsel at the hearing and, if so, whether the conservatee has retained legal counsel and, if not, the name of an attorney the proposed conservatee wishes to retain or whether the conservatee desires the court to appoint legal counsel.
(6) If the conservatee does not plan to retain legal counsel and has not requested the appointment of legal counsel by the court, determine whether the appointment of legal counsel would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee.
(7) Determine whether the proposed change of place of residence is required to prevent irreparable harm to the conservatee and whether no means less restrictive of the conservatee’s liberty will suffice to prevent that harm.
(8) Gather relevant medical reports regarding the conservatee, including at least one report from the conservatee’s primary care physician. The reports shall be kept confidential pursuant to the federal Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191), unless the court approves a subpoena for the reports.

(8)

(9) Report to the court in writing, at least two days before the hearing, concerning all of the foregoing, including the conservatee’s express communications concerning representation by legal counsel and whether the conservatee is not willing to attend the hearing and does not wish to oppose the request.
(c) Within seven days of the date of filing of a temporary conservator’s request to remove the conservatee from his or her the conservatee’s previous place of residence, the court shall hold a hearing on the request.
(d) The conservatee shall be present at the hearing except in the following cases:
(1) Where the conservatee is unable to attend the hearing by reason of medical inability. 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.
(2) Where the court investigator has reported to the court that the conservatee has expressly communicated that the conservatee is not willing to attend the hearing and does not wish to oppose the request, and the court makes an order that the conservatee need not attend the hearing.
(e) If the conservatee is unable to attend the hearing because of medical inability, that inability shall be established (1) by the affidavit or certificate of a licensed medical practitioner or (2) 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 establishment of a conservatorship.
(f) At the hearing, the conservatee has the right to be represented by counsel and the right to confront and cross-examine any witness presented by or on behalf of the temporary conservator and to present evidence on his or her their own behalf.
(g) The court may approve the request to remove the conservatee from the previous place of residence only if the court finds (1) that change of residence is required to prevent irreparable harm to the conservatee and (2) that no means less restrictive of the conservatee’s liberty will suffice to prevent that harm. If an order is made authorizing the temporary conservator to remove the conservatee from the previous place of residence, the order shall specify the specific place wherein the temporary conservator is authorized to place the conservatee. The temporary conservator may not be authorized to remove the conservatee from this state unless it is additionally shown that such removal is required to permit the performance of specified nonpsychiatric medical treatment, consented to by the conservatee, which is essential to the conservatee’s physical survival. A temporary conservator who willfully removes a temporary conservatee from this state without authorization of the court is guilty of a felony.
(h) Subject to subdivision (e) of Section 2252, the court shall also order the temporary conservator to take all reasonable steps to preserve the status quo concerning the conservatee’s previous place of residence.
(i) A superior court shall not be required to perform any duties imposed pursuant to the amendments to this section enacted by Chapter 493 of the Statutes 2006 until the Legislature makes an appropriation identified for this purpose.

SEC. 14.

 Section 2401 of the Probate Code is amended to read:

2401.
 (a) The guardian or conservator, or limited conservator to the extent specifically and expressly provided in the appointing court’s order, has the management and control of the estate and, in managing and controlling the estate, shall use ordinary care and diligence. What constitutes use of ordinary care and diligence is determined by all the circumstances of the particular estate.
(b) The guardian or conservator:
(1) Shall exercise a power to the extent that ordinary care and diligence requires that the power be exercised.
(2) Shall not exercise a power to the extent that ordinary care and diligence requires that the power not be exercised.
(c) Notwithstanding any other law, a guardian or conservator who is not a trust company, in exercising his or her their powers, may not hire or refer any business to an entity in which he or she the guardian or conservator has a financial interest except upon authorization of the court. Prior to authorization from the court, the guardian or conservator shall disclose to the court in writing his or her financial interest in the entity. interest. For the purposes of this subdivision, “financial interest” shall mean (1) an ownership interest in a sole proprietorship, a partnership, or a closely held corporation, or (2) an ownership interest of greater than 1 percent of the outstanding shares in a publicly held corporation, or (3) being an officer or a director of a corporation.
(d) (1) Notwithstanding any other law, a guardian or conservator who is a trust company, in exercising its powers may not, except upon authorization of the court, invest in securities of the trust company or an affiliate or subsidiary, or other securities from which the trust company or affiliate or subsidiary receives a financial benefit or in a mutual fund, other than a mutual fund authorized in paragraph (5) of subdivision (a) of Section 2574, registered under the Investment Company Act of 1940 (Subchapter 1 (commencing with Sec. 80a-1) of Chapter 2D of Title 15 of the United States Code), to which the trust company or its affiliate provides services, including, but not limited to, services as an investment adviser, sponsor, distributor, custodian, agent, registrar, administrator, servicer, or manager, and for which the trust company or its affiliate receives compensation.

Prior to

(2) Before authorization from the court, the guardian or conservator shall disclose to the court in writing the trust company’s financial interest.

SEC. 15.

 Section 2623 of the Probate Code is amended to read:

2623.
 (a) Except as provided in subdivision (b) of this section, (b), the guardian or conservator shall be allowed all of the following:
(1) The amount of the reasonable expenses incurred in the exercise of the powers and the performance of the duties of the guardian or conservator (including, but not limited to, the cost of any surety bond furnished, reasonable attorney’s fees, and such compensation for services rendered by the guardian or conservator of the person as the court determines is just and reasonable).
(2) Such compensation for services rendered by the guardian or conservator as the court determines is just and reasonable.
(3) All reasonable disbursements made before appointment as guardian or conservator.
(4) In the case of termination other than by the death of the ward or conservatee, all reasonable disbursements made after the termination of the guardianship or conservatorship but prior to conservatorship, but before the discharge of the guardian or conservator by the court.
(5) In the case of termination by the death of the ward or conservatee, all reasonable expenses incurred prior to before the discharge of the guardian or conservator by the court for the custody and conservation of the estate and its delivery to the personal representative of the estate of the deceased ward or conservatee or in making other disposition of the estate as provided for by law.

(b)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.

(b) If the court reduces or denies the compensation requested in the petition, the guardian or conservator shall not be compensated from the estate for the costs or fees that the guardian or conservator incurred in defending the compensation in the petition.

SEC. 16.

 Section 2640 of the Probate Code is amended to read:

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.

(d) Notwithstanding subdivision (c), if the court reduces or denies the compensation requested in the petition, the guardian or conservator shall not be compensated from the estate for the costs or fees that the guardian or conservator incurred in defending the compensation in the petition.
(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.

SEC. 17.

 Section 2641 of the Probate Code is amended to read:

2641.
 (a) At any time permitted by Section 2640 and upon the notice therein prescribed, the guardian or conservator of the person may petition the court for an order fixing and allowing compensation for services rendered to that time.
(b) Upon the hearing, the court shall make an order allowing any compensation the court determines is just and reasonable to the guardian or conservator of the person for services rendered. The compensation allowed to the guardian or conservator of the person 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 thereupon be charged against the estate.

(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.

(c) Notwithstanding subdivision (b), if the court reduces or denies the compensation requested in the petition, the guardian or conservator shall not be compensated from the estate for the costs or fees that the guardian or conservator incurred in defending the compensation in the petition.
(d) Notwithstanding subdivision (b), the guardian or conservator of the person 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.

SEC. 18.

 Section 2653 of the Probate Code is amended to read:

2653.
 (a) The guardian or conservator, the ward or conservatee, the spouse of the ward or the spouse or registered domestic partner of the conservatee, any a relative or friend of the ward or conservatee, and any interested person may appear at the hearing and support or oppose the petition.
(b) If the court determines that cause for removal of the guardian or conservator exists, the court may remove the guardian or conservator, revoke the letters of guardianship or conservatorship, and enter judgment accordingly and, in the case of a guardianship or conservatorship of the estate, order the guardian or conservator to file an accounting and to surrender the estate to the person legally entitled thereto. If the guardian or conservator fails to file the accounting as ordered, the court may compel the accounting pursuant to Section 2620.2.
(c) If the court removes the guardian or conservator for cause, as described in subdivisions (a) to (g), inclusive, of Section 2650 or Section 2655, both of the following shall apply:
(1) The court shall award the petitioner the costs of the petition and other expenses and costs of litigation, including attorney’s fees, incurred under this article, unless the court determines that the guardian or conservator has acted in good faith, based on the best interests of the ward or conservatee. article.
(2) The guardian or conservator may not deduct from, or charge to, the estate his or her the guardian’s or conservator’s costs of litigation, and is personally liable for those costs and expenses.

SECTION 1.

It is the intent of the Legislature to enact legislation to reform the conservatorship process.