California Assembly Bill AB1288 Amended / Bill

 BILL NUMBER: AB 1288AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 25, 2011 INTRODUCED BY Assembly Member Gordon  (   Principal coauthor:   Assembly Member   Beall   )  FEBRUARY 18, 2011  An act to amend Section 2352.5 of the Probate Code, relating to conservatorships.   An act to amend Sections 2900 and 2901 of the Probate Code, relating to public guardians and conservators.  LEGISLATIVE COUNSEL'S DIGEST AB 1288, as amended, Gordon.  Conservatees: personal residences.   Public guardians and conservators: authority: property held in trust.   Existing law authorizes a county public guardian or conservator to take temporary possession or control of real and personal property of a person in the county who requires a guardian or conservator, as specified, if the property is subject to loss, injury, waste, or misappropriation. Existing law authorizes a public guardian to issue a written certification for purposes of taking possession or control of property in this regard, which may be recorded and which is effective for 15 days after the date of issuance. Existing law requires a financial institution or other person, without inquiring into the truth of the written certification and without court order being issued, to provide the public guardian information concerning property held in the sole name of the proposed ward or conservatee and to surrender to the public guardian property of the proposed ward or conservatee that is subject to loss, injury, waste, or misappropriation. Existing law immunizes the financial institution or other person from any liability for any act or omission of the public guardian with respect to the property.   This bill would extend the authority of a public guardian or conservator to take temporary possession of property, and the corresponding obligation of a financial institution or other person to provide property, as described above, to property held in trust for a potential ward or conservatee. The bill would also extend to 30 days the period that the written certification issued for purposes of taking possession or control of property is effective.   Existing law provides for the establishment of conservatorships and permits a conservator to establish the residence of the conservatee within the state without permission of the court. Existing law creates a presumption that the personal residence of the conservatee at the time a conservatorship proceeding commences is the least restrictive appropriate residence of the conservatee.   This bill would make a nonsubstantive, technical change to these provisions.  Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 2900 of the   Probate Code   is amended to read:  2900. (a) If the public guardian or public conservator determines that the requirements for appointment of a guardian or conservator of the estate are satisfied and the public guardian or public conservator intends to apply for appointment, the public guardian or public conservator may take possession or control of real or personal property of  , or property held in trust for,  a person domiciled in the county that is subject to loss, injury, waste, or misappropriation, and, subject to subdivision (b), may deny use of, access to, or prohibit residency in, the real or personal property, by anyone who does not have a written rental agreement or other legal right to the use of, or access to, the property. (b) The authority provided to the public guardian and public conservator in subdivision (a) includes the authority to terminate immediately the occupancy of anyone living in the home of an intended ward or conservatee, other than the intended ward or conservatee, and the authority to remove any such occupant residing therein, subject to the following requirements: (1) The public guardian or public conservator shall first determine that the person whose occupancy is to be terminated has no written rental agreement or other legal right to occupancy, and has caused, contributed to, enabled, or threatened loss, injury, waste, or misappropriation of the home or its contents. In making this determination, the public guardian or public conservator shall contact the intended ward or conservatee and the occupant, advise them of the proposed removal and the grounds therefor, and consider whatever information they provide. (2) At the time of the removal, the public guardian or public conservator shall advise the intended ward or conservatee and the occupant that a hearing will be held as provided in paragraph (3). (3) The public guardian or public conservator shall file a petition regarding removal, showing the grounds therefor, to be set for hearing within 10 days of the filing of the petition and within 15 days of the removal. The person removed and the intended ward or conservatee shall be personally served with a notice of hearing and a copy of the petition at least five days prior to the hearing, subject to Part 2 (commencing with Section 1200) of Division 3. The right of the public guardian or public conservator to deny occupancy by the removed person to the premises shall terminate 15 days after removal, unless extended by the court at the hearing on the petition. The court shall not grant an extension unless the public guardian or public conservator has filed a petition for appointment as guardian or conservator of the estate. (c) If the public guardian or public conservator takes possession of the residence of an intended ward or conservatee under this section, then for purposes of Section 602.3 of the Penal Code, the public guardian or public conservator shall be the owner's representative.  SEC. 2.   Section 2901 of the   Probate Code   is amended to read:  2901. (a) A public guardian who is authorized to take possession or control of property under this chapter may issue a written certification of that fact. The written certification is effective for  15   30  days after the date of issuance. (b) The written recordable certification shall substantially comply with the following form: "CERTIFICATE OF AUTHORITY THIS IS AN OFFICIAL CERTIFICATE ENTITLING THE PUBLIC GUARDIAN TO TAKE POSSESSION OF ANY AND ALL PROPERTY BELONGING TO THE FOLLOWING INDIVIDUAL: (Name of Individual) _____________ This Certificate of Authority has been issued by the Public Guardian pursuant to and in compliance with Chapter 1 (commencing with Section 2900) of Part 5 of Division 4 of the California Probate Code. Under California law, this Certificate of Authority authorizes the Public Guardian to take possession or control of property belonging to  , or held in trust for,  the above-named individual. SPECIAL NOTE TO FINANCIAL INSTITUTIONS: State law requires that upon receiving a copy of this Certificate of Authority, financial institutions shall provide the public guardian with information concerning property held by  , or in trust for,  the above-named individual and surrender the property to the Public Guardian if requested. This Certificate of Authority shall only be valid when signed and dated by the Public Guardian or a deputy Public Guardian of the County of _____ and affixed with the official seal of the Public Guardian below. Signature of Public Guardian: Date: Official Seal" (c) The public guardian may record a copy of the written certification in any county in which is located real property of which the public guardian is authorized to take possession or control under this chapter. (d) A financial institution or other person shall, without the necessity of inquiring into the truth of the written certification and without court order or letters being issued: (1) Provide the public guardian information concerning property held in the sole name of  , or   held in trust for,  the proposed ward or conservatee. (2) Surrender to the public guardian property of  , or held in trust for,  the proposed ward or conservatee that is subject to loss, injury, waste, or misappropriation. (e) Receipt of the written certification: (1) Constitutes sufficient acquittance for providing information and for surrendering property of the proposed ward or conservatee. (2) Fully discharges the financial institution or other person from any liability for any act or omission of the public guardian with respect to the property.  SECTION 1.   Section 2352.5 of the Probate Code is amended to read: 2352.5. (a) It shall be presumed that the personal residence of the conservatee at the time of commencement of the proceeding is the least restrictive appropriate residence for the conservatee. In any hearing to determine if removal of the conservatee from his or her personal residence is appropriate, that presumption may be overcome by a preponderance of the evidence. (b) Upon appointment, the conservator shall determine the appropriate level of care for the conservatee. (1) That determination shall include an evaluation of the level of care existing at the time of commencement of the proceeding and the measures that would be necessary to keep the conservatee in his or her personal residence. (2) If the conservatee is living at a location other than his or her personal residence at the commencement of the proceeding, that determination shall either include a plan to return the conservatee to his or her personal residence or an explanation of the limitations or restrictions on a return of the conservatee to his or her personal residence in the foreseeable future. (c) The determination made by the conservator pursuant to subdivision (b) shall be in writing, signed under penalty of perjury, and submitted to the court no later than 60 days of appointment as conservator. (d) The conservator shall evaluate the conservatee's placement and level of care if there is a material change in circumstances affecting the conservatee's needs for placement and care. (e) (1) This section shall not apply to a conservatee with developmental disabilities for whom the Director of Developmental Services or a regional center for the developmentally disabled, established pursuant to Chapter 5 (commencing with Section 4620) of Division 4.5 of the Welfare and Institutions Code, acts as the conservator and who receives services from a regional center pursuant to the Lanterman Developmental Disabilities Act (Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code). (2) Services, including residential placement, for a conservatee described in paragraph (1) who is a consumer, as defined in Section 4512 of the Welfare and Institutions Code, shall be identified, delivered, and evaluated consistent with the individual program plan process described in Article 2 (commencing with Section 4640) of Chapter 5 of Division 4.5 of the Welfare and Institutions Code.