California Expands Conservatorship Protections

Oct. 12, 2021, 8:00 AM

On Sept. 30, 2021, the same day a judge in Los Angeles suspended Jamie Spears as conservator of Britney Spears, California Gov. Gavin Newsom (D) signed into law Assembly Bill 1194. This legislation implements some significant measures to curb abuse of conservatees and affords conservatees or proposed conservatees the ability to meaningfully advocate against the deprivation of their rights. Below is a short summary of some of the increased protections.

Protections of a Conservatee’s Right to Representation

A.B. 1194 replaces Probate Code Section 1471, which addresses certain circumstances in which the court must appoint counsel for a conservatee or proposed conservatee. Under the new law, the conservatee or proposed conservatee has the right to select counsel of his or her choice and has a right to counsel on appeal from certain orders (including those to appoint a conservator, terminate a conservatorship, or remove a conservator).

As well, the new law clarifies that the role of the conservatee’s or proposed conservatee’s counsel is that of a zealous advocate for the conservatee or proposed conservatee, “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.” This alteration to the role of court-appointed counsel clarifies an issue impacting conservatees and proposed conservatees across California.

Many counties did not treat court-appointed counsel as an advocate but, rather, as a voice for what the counsel thought was in the best interests of the conservatee or proposed conservatee. At times, this practice went so far as to codify obligations of court-appointed counsel to report to the court as to what their impressions were—whether or not those diverged from the expressed wishes of their client. As a result, conservatees or proposed conservatees were left without meaningful representation, cast adrift in a process resulting in the deprivation of their rights.

With these clarified requirements for court-appointed counsel, conservatees and proposed conservatees now have the protection of an advocate to fight against their deprivation of rights.

Investigation of Allegations of Elder Abuse

A.B. 1194 adds Probate Code Section 1851.6, which provides an avenue to investigate elder abuse within a conservatorship. Previously, upon discharge of court-appointed counsel for a conservatee, the conservatee was left without practical avenues to address their abuses. Generally speaking, the conservator or, if the conservatee has a trust, the trustee, were the only individuals that could pursue claims for elder abuse committed against the conservatee. Under this new statute, “any interested person” with personal knowledge of a conservatee may petition the court to investigate allegations of elder abuse of the conservatee by a conservator.

This new provision provides the ability for friends and family members to come to the aid of conservatees who are subject to abuse. The court investigator “shall” investigate allegations that establish a prima facie case of abuse unless an investigation occurred in the prior six months or upon a showing of good cause.

Additional Penalties for Fiduciaries

A.B. 1194 adds Probate Code Section 2112, which provides statutory penalties against conservators who abuse conservatees. Under this new statute, in addition to other remedies, the conservator is liable for a civil penalty up to $10,000 for each separate act of abuse payable to the conservatee if the conservator is a professional fiduciary, and $1,000 for each separate act of abuse if the conservator is not a professional fiduciary.

This section also requires the court to report the finding or penalty against a professional fiduciary to the Professional Fiduciaries Bureau.

Investigation of Complaints Regarding Conservators

Business and Professions Code Section 6580 increases specific events of fiduciary abuse that the Professional Fiduciaries Bureau within the Department of Consumer Affairs must investigate. Among other things, the bureau must now investigate alleged elder or dependent adult abuse or breaches of any legal or fiduciary duty causing financial, physical, or mental harm. The code now mandates imposition of sanctions against the fiduciary if either item is found by the bureau.

Study of Conservatorship Proceedings

A.B. 1194 adds Section 1458 to the Probate Code, which requires the Judicial Council to report to the legislature by Jan. 1, 2024, on the effectiveness of conservatorships to protect the legal rights and best interest of conservatees. This report will include a study of cases for the fiscal year 2018-2019.

This study will hopefully identify additional areas in which California can continue to improve upon the conservatorship process, both by ensuring the appropriate use of conservatorships and increasing protections of conservatees and proposed conservatees from abuse.

A.B. 1194 contains many more protections for conservatees and proposed conservatees. It not only provides increased representation and mechanisms to protect the due process rights of conservatees and proposed conservatees, but also helps regulate fiduciaries and remedy abuse by conservators. It is a strong step forward in the effort to protect conservatees and proposed conservatees from abuse by fiduciaries and from the wrongful deprivation of rights.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Andrew R. Verriere is a shareholder with Hartog Baer & Hand APC in Orinda, Calif. His practice focuses on trust and estate litigation, conservatorship litigation, financial elder abuse, related litigation, and appeals. He may be reached at averriere@hbh.law.

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