Amended
IN
Assembly
March 29, 2021 |
Amended
IN
Assembly
March 22, 2021 |
Introduced by Assembly Member Low (Coauthors: Senators Allen and Laird) |
February 18, 2021 |
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.
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
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.
(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.
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.
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.
(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
($____).
(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.
In order to assist relatives and friends who may seek appointment as a nonprofessional 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.
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.
(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.
(f)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.
(c)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.
(f)A superior court is not 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.
(k)On or before January 1, 2008, the Judicial Council shall adopt a rule of court that establishes uniform standards for good cause exceptions to the notice required by subdivision (e), limiting those exceptions to only cases when waiver of the notice is essential to protect the proposed conservatee or ward, or the estate of the proposed
conservatee or ward, from substantial harm.
(l)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.
(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.
(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.
(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.
(f)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.