Probate Conservatorship Expert Witness CA

Probate Conservatorship California

In California, Adult Protective Services (APS) receives as many as 10,000 reports of elder and dependent abuse per month, and APS has stated those numbers are increasing. With nearly 120,000 cases of reported elder abuse California each year, this is an important issue for attorneys in California. Mental and physical elder abuse in California involves a number of criminal and civil statutes. Litigation often requires the counsel of a credible geropsychologist to help make assessments, testify in court, and assist in investigations.

Probate Conservatorship: Extended Information

Probate Laws in California

California Probate Code 259 and California Probate Code 2250 are the commonly referenced codes when discussing these types of laws in California.

Legal Conservatorship California

A conservatorship of the person or conservatorship of the estate is a court case where judges appoint a responsible person or organization (called the conservator of the person or the conservator of the estate) to care for another adult who cannot care for himself or herself or manage his or her own finances (proposed “conservatee”), or care for the estate or both. The process to establish a conservatorship begins when someone proposes to the court that they should be appointed conservator of the estate or the person, and that proposal is known as a petition for conservatorship.

Probate conservatorships fall into two categories: General Conservatorship and Limited Conservatorship. Additionally, Lanterman-Petris-Short or LPS Conservatorship is used to care for an incapacitated person or adults with serious mental health illnesses who require special care.

California Probate Code 259

(a) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) where all of the following apply:

(1) It has been proven by clear and convincing evidence that the person is liable for physical abuse, neglect, or financial abuse of the decedent, who was an elder or dependent adult.

(2) The person is found to have acted in bad faith.

(3) The person has been found to have been reckless, oppressive, fraudulent, or malicious in the commission of any of these acts upon the decedent.

(4) The decedent, at the time those acts occurred and thereafter until the time of his or her death, has been found to have been substantially unable to manage his or her financial resources or to resist fraud or undue influence.

(b) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) if that person has been convicted of a violation of Section 236 of the Penal Code or any offense described in Section 368 of the Penal Code.

(c) Any person found liable under subdivision (a) or convicted under subdivision (b) shall not (1) receive any property, damages, or costs that are awarded to the decedent’s estate in an action described in subdivision (a) or (b), whether that person’s entitlement is under a will, a trust, or the laws of intestacy; or (2) serve as a fiduciary as defined in Section 39, if the instrument nominating or appointing that person was executed during the period when the decedent was substantially unable to manage his or her financial resources or resist fraud or undue influence. This section shall not apply to a decedent who, at any time following the act or acts described in paragraph (1) of subdivision (a), or the act or acts described in subdivision (b), was substantially able to manage his or her financial resources and to resist fraud or undue influence within the meaning of subdivision (b) of Section 1801 of the Probate Code and subdivision (b) of Section 39 of the Civil Code.

(d) For purposes of this section, the following definitions shall apply:

(1) “Physical abuse” as defined in Section 15610.63 of the Welfare and Institutions Code.

(2) “Neglect” as defined in Section 15610.57 of the Welfare and Institutions Code.

(3) “False imprisonment” as defined in Section 368 of the Penal Code.

(4) “Financial abuse” as defined in Section 15610.30 of the Welfare and Institutions Code.

(e) Nothing in this section shall be construed to prohibit the severance and transfer of an action or proceeding to a separate civil action pursuant to Section 801.

California Probate Code 2250

(a) On or after the filing of a petition for appointment of a guardian or conservator, any person entitled to petition for appointment of the guardian or conservator may file a petition for appointment of:

(1) A temporary guardian of the person or estate, or both.

(2) A temporary conservator of the person or estate, or both.

(b) The petition shall state facts which establish good cause for appointment of the temporary guardian or temporary conservator. The court, upon that petition or other showing as it may require, may appoint a temporary guardian of the person or estate, or both, or a temporary conservator of the person or estate, or both, to serve pending the final determination of the court upon the petition for the appointment of the guardian or conservator.

(c) If the petitioner, proposed guardian, or proposed conservator is a professional fiduciary, as described in Section 2340, who is required to be licensed under the Professional Fiduciaries Act (Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code), the petition for appointment of a temporary guardian or temporary conservator shall include the following:

(1) The petitioner’s, proposed guardian’s, or proposed conservator’s proposed hourly fee schedule or another statement of his or her proposed compensation from the estate of the proposed ward or proposed conservatee for services performed as a guardian or conservator. The petitioner’s, proposed guardian’s, or proposed conservator’s provision of a proposed hourly fee schedule or another statement of his or her proposed compensation, as required by this paragraph, shall not preclude a court from later reducing the petitioner’s, proposed guardian’s, or proposed conservator’s fees or other compensation.

(2) Unless a petition for appointment of a guardian or conservator that contains the statements required by this paragraph is filed together with a petition for appointment of a temporary guardian or temporary conservator, both of the following:

(A) A statement of the petitioner’s, proposed guardian’s, or proposed conservator’s registration or license information.

(B) A statement explaining who engaged the petitioner, proposed guardian, or proposed conservator or how the petitioner, proposed guardian, or proposed conservator was engaged to file the petition for appointment of a temporary guardian or temporary conservator or to agree to accept the appointment as temporary guardian or temporary conservator and what prior relationship the petitioner, proposed guardian, or proposed conservator had with the proposed ward or proposed conservatee or the proposed ward’s or proposed conservatee’s family or friends.

(d) If the petition is filed by a party other than the proposed conservatee, the petition shall include a declaration of due diligence showing both of the following:

(1) Either the efforts to find the proposed conservatee’s relatives named in the petition for appointment of a general conservator or why it was not feasible to contact any of them.

(2) Either the preferences of the proposed conservatee concerning the appointment of a temporary conservator and the appointment of the proposed temporary conservator or why it was not feasible to ascertain those preferences.

(e) Unless the court for good cause otherwise orders, at least five court days before the hearing on the petition, notice of the hearing shall be given as follows:

(1) Notice of the hearing shall be personally delivered to the proposed ward if he or she is 12 years of age or older, to the parent or parents of the proposed ward, and to any person having a valid visitation order with the proposed ward that was effective at the time of the filing of the petition. Notice of the hearing shall not be delivered to the proposed ward if he or she is under 12 years of age. In a proceeding for temporary guardianship of the person, evidence that a custodial parent has died or become incapacitated, and that the petitioner or proposed guardian is the nominee of the custodial parent, may constitute good cause for the court to order that this notice not be delivered.

(2) Notice of the hearing shall be personally delivered to the proposed conservatee, and notice of the hearing shall be served on the persons required to be named in the petition for appointment of conservator. If the petition states that the petitioner and the proposed conservator have no prior relationship with the proposed conservatee and has not been nominated by a family member, friend, or other person with a relationship to the proposed conservatee, notice of hearing shall be served on the public guardian of the county in which the petition is filed.

(3) A copy of the petition for temporary appointment shall be served with the notice of hearing.

(f) If a temporary guardianship is granted ex parte and the hearing on the general guardianship petition is not to be held within 30 days of the granting of the temporary guardianship, the court shall set a hearing within 30 days to reconsider the temporary guardianship. Notice of the hearing for reconsideration of the temporary guardianship shall be provided pursuant to Section 1511, except that the court may for good cause shorten the time for the notice of the hearing.

(g) Visitation orders with the proposed ward granted prior to the filing of a petition for temporary guardianship shall remain in effect, unless for good cause the court orders otherwise.

(h)(1) If a temporary conservatorship is granted ex parte, and a petition to terminate the temporary conservatorship is filed more than 15 days before the first hearing on the general petition for appointment of conservator, the court shall set a hearing within 15 days of the filing of the petition for termination of the temporary conservatorship to reconsider the temporary conservatorship. Unless the court otherwise orders, notice of the hearing on the petition to terminate the temporary conservatorship shall be given at least 10 days prior to the hearing.

(2) If a petition to terminate the temporary conservatorship is filed within 15 days before the first hearing on the general petition for appointment of conservator, the court shall set the hearing at the same time that the hearing on the general petition is set. Unless the court otherwise orders, notice of the hearing on the petition to terminate the temporary conservatorship pursuant to this section shall be given at least five court days prior to the hearing.

(i) If the court suspends powers of the guardian or conservator under Section 2334 or 2654 or under any other provision of this division, the court may appoint a temporary guardian or conservator to exercise those powers until the powers are restored to the guardian or conservator or a new guardian or conservator is appointed.

(j) If for any reason a vacancy occurs in the office of guardian or conservator, the court, on a petition filed under subdivision (a) or on its own motion, may appoint a temporary guardian or conservator to exercise the powers of the guardian or conservator until a new guardian or conservator is appointed.

(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.

Petition for Appointment of Probate Conservator

The Petition for Appointment of Probate Conservator is part of the California Probate Codes 1820, 1821, and 2680-2682, and can be found here.

California Probate Conservatorships

There are various types of conservatorships in California. These are the two types available in probate:

• General conservatorships are the conservatorship of adults who cannot take care of themselves or their finances. These conservatees are often elderly people, but they can also be younger people who have been seriously disabled.
• Limited conservatorships are conservatorships of adults with developmental disabilities who cannot fully care for themselves or their finances. Conservatees in limited conservatorships do not need a higher level of care or help that conservatees in general conservatorships need.

A temporary conservator may be implemented if the conservatorship of the person is needed right away. The Judicial Council of California explains:

“The request must be filed as part of a general conservatorship case, and can be filed either at the same time or soon after the general conservatorship case is opened with the court. The main duties of a temporary conservator are arranging for the temporary care, protection, and support of the conservatee, and protecting the conservatee’s finances and property.”

San Bernardino County Probate Conservatorship

This type of conservatorship in San Bernardino County covers the local cities of San Bernardino, Rancho Cucamonga, Fontana, Ontario, Redlands, Rialto, Victorville, Colton, Upland, Chino, Highland, Big Bear Lake, Hesperia, Loma Linda, Yucaipa, Chino Hills, Apple Valley, Barstow, Montclair, Grand Terrace, Adelanto, Twentynine Palms, Phelan, Yucca Valley, and more.

The Superior Court of California, County of San Bernardino provides an online orientation for conservatorship.

Probate Conservatorships Los Angeles County

Decisional capacity California evaluations may be used in criminal (elder abuse), civil (fraud, will contest), and probate (conservatorship) matters. Typically a report serves to describe the approach and findings of the clinician relative to the issue at hand. The clinician’s opinion is one of the factors the court will consider.

Dr. Wood has significant experience as a decisional capacity expert witness in California, working on hundreds of cases for various law firms and government organizations. Additional evidence, such as medical records, collateral interviews, neuropsychological test data, and previous estate planning documents assist in developing a strong case.

Decisional Capacity
Contact Information

SOC 341 is a report of suspected dependent adult/elder abuse in California.This form, as adopted by the California Department of Social Services (CDSS), is required under Welfare and Institutions Code (WIC) Sections 15630 and 15658(a)(1). This form documents the information given by the reporting party on the suspected incident of abuse or neglect of an elder or dependent adult.

San Bernardino County Probate Conservatorships

This type of conservatorship in San Bernardino County covers the local cities of San Bernardino, Rancho Cucamonga, Fontana, Ontario, Redlands, Rialto, Victorville, Colton, Upland, Chino, Highland, Big Bear Lake, Hesperia, Loma Linda, Yucaipa, Chino Hills, Apple Valley, Barstow, Montclair, Grand Terrace, Adelanto, Twentynine Palms, Phelan, Yucca Valley, and more.

Riverside County Probate Conservatorships

This type of conservatorship in Riverside County covers the cities of Riverside, Corona, Temecula, Moreno Valley, Murrieta, Palm Springs, Hemet, Perris, Lake Elsinore, Menifee, Palm Desert, Norco, Indio, San Jacinto, Beaumont, Wildomar, Banning, Rancho Mirage, Cathedral City, La Quinta, Sun City, Eastvale, Jurupa Valley, Coachella, and more.

Other information related to these types of conservatorships in Riverside County can be found on the website of The Superior Court of California, County of Riverside.

For any additional questions, don’t hesitate to contact Dr. Stacey Wood. Licensed in both Washington State and California, she has the expertise and the experience to assist with all of your conservatorship needs, including expert witness testimony.