Bill Text: CA AB2148 | 2023-2024 | Regular Session | Amended
Bill Title: Professional fiduciaries.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-04-24 - In committee: Set, first hearing. Referred to suspense file. [AB2148 Detail]
Download: California-2023-AB2148-Amended.html
|
Amended
IN
Assembly
April 03, 2024 |
|
Amended
IN
Assembly
March 18, 2024 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 2148
| Introduced by Assembly Member Low |
February 06, 2024 |
An act to amend Sections 146 and 6501 of, and to add Section 6544 to, the Business and Professions Code, and to amend Sections 60.1 60.1, 1510, 1821, 2250, 2614.7, 2643.1, and 15604 of, to add Part 9.5 (commencing with Section 310) to Division 2 of, and to repeal Article 4 (commencing with Section 2340) of Chapter 4 of Part 4 of Division 4 of, the Probate Code, relating to professional fiduciaries.
LEGISLATIVE COUNSEL'S DIGEST
AB 2148, as amended, Low.
Professional fiduciaries.
Existing law, the Professional Fiduciaries Act, establishes, until January 1, 2028, the Professional Fiduciaries Bureau, within the Department of Consumer Affairs under the supervision and control of the Director of Consumer affairs, and requires the bureau to license and regulate professional fiduciaries. The act defines various terms for these purposes. Existing law makes a violation of specified law, including provisions of the act, an infraction, as specified.
Existing law, the Moscone-Knox Professional Corporation Act, defines and regulates professional corporations. The act provides that a professional organization renders professional services that may be lawfully rendered only pursuant to a license, certification, or registration authorized by, among others, the Business and Professions Code pursuant to a certificate of registration
issued by the governmental agency regulating the profession, as specified.
This bill would authorize would, beginning July 1, 2025, require the bureau to issue a certificate of registration to a professional corporation if the professional corporation files certain items with the bureau under penalty of perjury, and would require a professional corporation that has a certificate of registration to annually file those items with the bureau under penalty of perjury. The bill would provide that, if the board issues a certificate of registration to a professional corporation, the professional corporation may render professional services.
prohibit a professional corporation from rendering professional services requiring a license under the Professional Fiduciaries Act or acting or holding itself out to the public as an entity acting as a professional fiduciary unless the professional corporation is a registrant under the bill’s provisions.
The bill would prescribe imposition of fees, as specified. The bill would define various terms for these purposes. The bill would make a violation of these provisions an infraction. By expanding the scope of a crime, this bill would impose a state-mandated local program.
Existing law prohibits a superior court from appointing a person to carry out the duties of a professional fiduciary, as defined, unless that person holds a valid, unexpired, and unsuspended license as a professional fiduciary or is exempt from those licensing requirements, as specified.
This bill would delete that prohibition and would instead prohibit a superior court from appointing a professional fiduciary, as defined, as a guardian, conservator, or other officer, or permit a professional fiduciary to continue in any of those offices, unless they hold a current, unsuspended license or certificate of registration, as specified. The bill would
include in the definition of “professional fiduciary” a professional corporation that receives a certificate of registration pursuant to the provisions described above. The bill would also make technical and conforming changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 146 of the Business and Professions Code is amended to read:146.
(a) Notwithstanding any other provision of law, a violation of any code section listed in subdivision (c) is an infraction subject to the procedures described in Sections 19.6 and 19.7 of the Penal Code when either of the following applies:(1) A complaint or a written notice to appear in court pursuant to Chapter 5C (commencing with Section 853.5) of Title 3 of Part 2 of the Penal Code is filed in court charging the offense as an infraction unless the defendant, at the time they are arraigned, after being advised of their rights, elects to have the case proceed as a misdemeanor.
(2) The court, with the consent of the defendant and
the prosecution, determines that the offense is an infraction in which event the case shall proceed as if the defendant has been arraigned on an infraction complaint.
(b) Subdivision (a) does not apply to a violation of the code sections listed in subdivision (c) if the defendant has had their license, registration, or certificate previously revoked or suspended.
(c) The following sections require registration, licensure, certification, or other authorization in order to engage in certain businesses or professions regulated by this code:
(1) Section 2474.
(2) Sections 2052 and 2054.
(3) Section
2570.3.
(4) Section 2630.
(5) Section 2903.
(6) Section 3575.
(7) Section 3660.
(8) Sections 3760 and 3761.
(9) Section 4080.
(10) Section 4825.
(11) Section 4935.
(12) Section 4980.
(13) Section 4989.50.
(14) Section
4996.
(15) Section 4999.30.
(16) Section 5536.
(17) Section 6530, 6532, or 6544.
(18) Section 6704.
(19) Section 6980.10.
(20) Section 7317.
(21) Section 7502 or 7592.
(22) Section 7520.
(23) Section 7617 or 7641.
(24) Subdivision (a) of Section 7872.
(25) Section 8016.
(26) Section 8505.
(27) Section 8725.
(28) Section 9681.
(29) Section 9840.
(30) Subdivision (c) of Section 9891.24.
(31) Section 19049.
(d) Notwithstanding any other law, a violation of any of the sections listed in subdivision (c), which is an infraction, is punishable by a fine of not less than two hundred fifty dollars ($250) and not more than one thousand dollars ($1,000). No portion of
the minimum fine may be suspended by the court unless as a condition of that suspension the defendant is required to submit proof of a current valid license, registration, or certificate for the profession or vocation that was the basis for their conviction.
SEC. 2.
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 person who acts as 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.
(D) “Professional fiduciary” also includes a person acting as a professional
fiduciary practice administrator, appointed pursuant to Section 2469 or 9765 of the Probate Code.
(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 an entity that shares an ownership interest with, or that is under the common control of, the FDIC-insured institution.
(C) A public agency, including the public guardian, public conservator, or other agency of the State of California or of a county of California or a regional center for persons with developmental disabilities, as defined in Section 4620 of the Welfare and Institutions Code.
(D) A 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 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) A 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.
SEC. 3.
Section 6544 is added to the Business and Professions Code, to read:6544.
(a) For purposes of this section:(1) The definitions in Section 13401 of the Corporations Code apply.
(2) “Certificate of registration” has the same meaning as used in the Moscone-Knox Professional Corporation Act (Part 4 (commencing with Section 13400) of Division 3 of Title 1 of the Corporations Code).
(3) “Registrant” means a professional corporation that has an active certificate of registration issued pursuant to this article.
(b) A professional corporation shall not
render professional services requiring a license under this act or act or hold itself out to the public as an entity acting in a fiduciary capacity as a professional fiduciary unless the professional corporation is a registrant.
(c) The bureau may shall issue a certificate of registration to a professional corporation if the professional corporation files with the bureau under penalty of perjury all of the following:
(1) A copy of the professional corporation’s articles of incorporation.
(2) Proof that the professional corporation is an active professional corporation.
(3) Proof that the professional corporation is in good standing.
(4) Proof that all directors, officers, and shareholders of the professional corporation are licensed under this chapter.
(d)If the board issues a certificate of registration to a professional corporation, the professional corporation may render professional services.
(e)
(d) In addition to the applicable requirements of this chapter and the Moscone-Knox Professional Corporation Act (Part 4 (commencing with Section 13400) of Division 3 of Title 1 of the Corporations Code), both of the following requirements apply to a registrant:
(1) After receiving a certificate of registration pursuant to this article, a registrant shall annually file with the bureau under penalty of perjury all of the information required by subdivision (c).
(2) The income of a registrant attributable to professional services rendered while a shareholder is a disqualified person shall not accrue to the benefit of that
shareholder or their shares in the professional corporation.
(e) A certificate of registration shall be subject to the same enforcement and disciplinary proceedings as a license under Article 5 (commencing with Section 6580).
(f) The fee to obtain and annually renew a certificate of registration shall be set by the bureau in an amount necessary to recover the reasonable costs to the bureau in carrying out those functions pursuant to this chapter.
(g) This section shall become operative July 1, 2025.
SEC. 4.
Section 60.1 of the Probate Code is amended to read:60.1.
(a) “Professional fiduciary” means either of the following:(1) A person who is a professional fiduciary as defined under subdivision (f) of Section 6501 of the Business and Professions Code.
(2) A professional corporation that is a registrant as defined under subdivision (a) of Section 6544 of the Business and Professions Code.
(b) A person shall not act or hold themselves out to the public as a professional fiduciary unless they are licensed as a professional fiduciary or are a registrant under Chapter 6 (commencing
with Section 6500) of Division 3 of the Business and Professions Code.
SEC. 5.
Part 9.5 (commencing with Section 310) is added to Division 2 of the Probate Code, to read:PART 9.5. Professional Fiduciaries
310.
A superior court shall not appoint a professional fiduciary as a guardian, conservator, personal representative, trustee, or other officer, or permit a professional fiduciary to continue in any of those offices, unless the professional fiduciary satisfies any of the following:(a) Holds a current, unsuspended license issued pursuant to Section 6535 of the Business and Professions Code to act or hold themselves out to the public as a professional fiduciary.
(b) Is exempt from the licensing requirements in Article 3 (commencing with Section 6530) of Chapter 6 of Division 3 of the Business and Professions Code.
(c) Holds a current, unsuspended certificate of registration issued pursuant to Section 6544 of the Business and Professions Code.
SEC. 6.
Section 1510 of the Probate Code is amended to read:1510.
(a) A relative or other person on behalf of the minor, or the minor if 12 years of age or older, may file a petition for the appointment of a guardian of the minor. A relative may file a petition for the appointment of a guardian under this section regardless of the relative’s immigration status.(b) The petition shall request that a guardian of the person or estate of the minor, or both, be appointed, shall specify the name and address of the proposed guardian and the name and date of birth of the proposed ward, and shall state that the appointment is necessary or convenient.
(c) The petition shall set forth, so far as is
known to the petitioner, the names and addresses of all of the following:
(1) The parents of the proposed ward.
(2) The person having legal custody of the proposed ward and, if that person does not have the care of the proposed ward, the person having the care of the proposed ward.
(3) The relatives of the proposed ward within the second degree.
(4) In the case of a guardianship of the estate, the spouse of the proposed ward.
(5) A person nominated as guardian for the proposed ward under Section 1500 or 1501.
(6) In the case of a
guardianship of the person involving an Indian child, any Indian custodian and the Indian child’s tribe.
(d) If the petitioner or proposed guardian is a professional fiduciary, as described in Section 310, who is required to be licensed or registered under the Professional Fiduciaries Act (Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code), the petition shall include the following:
(1) The petitioner’s or proposed guardian’s proposed hourly fee schedule or another statement of their proposed compensation from the estate of the proposed ward for services performed as a guardian. The petitioner’s or proposed guardian’s provision of a proposed hourly fee schedule or another statement of their proposed compensation, as required by this
paragraph, does not preclude a court from later reducing the petitioner’s or proposed guardian’s fees or other compensation.
(2) Unless a petition for appointment of a temporary guardian that contains the statements required by this paragraph is filed together with a petition for appointment of a guardian, both of the following:
(A) A statement of the petitioner’s or proposed guardian’s license information.
(B) A statement explaining who engaged the petitioner or proposed guardian or how the petitioner or proposed guardian was engaged to file the petition for appointment of a guardian or to agree to accept the appointment as guardian and what prior
relationship the petitioner or proposed guardian had with the proposed ward or the proposed ward’s family or friends.
(e) If the proposed ward is a patient in or on leave of absence from a state institution under the jurisdiction of the State Department of State Hospitals or the State Department of Developmental Services and that fact is known to the petitioner or proposed guardian, the petition shall state that fact and name the institution.
(f) The petition shall state, so far as is known to the petitioner or proposed guardian, whether or not the proposed ward is receiving or is entitled to receive benefits from the Veterans Administration and the estimated amount of the monthly benefit payable by the Veterans Administration for the proposed ward.
(g) If the petitioner or proposed guardian has knowledge of a pending adoption, juvenile court, marriage dissolution, domestic relations, custody, or other similar proceeding affecting the proposed ward, the petition shall disclose the pending proceeding.
(h) If the petitioners or proposed guardians have accepted or intend to accept physical care or custody of the child with intent to adopt, whether formed at the time of placement or formed subsequent to placement, the petitioners or proposed guardians shall so state in the guardianship petition, whether or not an adoption petition has been filed.
(i) If the proposed ward is or becomes the subject of an adoption petition, the court shall order the guardianship petition
consolidated with the adoption petition, and the consolidated case shall be heard and decided in the court in which the adoption is pending.
(j) If the proposed ward is or may be an Indian child, the petition shall state that fact.
SEC. 7.
Section 1821 of the Probate Code is amended to read:1821.
(a) (1) The petition shall request that a conservator be appointed for the person or estate, or both, shall specify the name, address, and telephone number of the proposed conservator, the name, address, and telephone number of the proposed conservatee, and state the reasons why a conservatorship is necessary. Unless the petitioner or proposed conservator is a bank or other entity authorized to conduct the business of a trust company, the petitioner or proposed conservator shall also file supplemental information as to why the appointment of a conservator is required. The supplemental information to be submitted shall include a brief statement of facts addressed to each of the following categories:(A) The inability of the proposed conservatee to properly provide for their own needs for physical health, food, clothing, or shelter.
(B) The location and nature of the proposed conservatee’s residence and the ability of the proposed conservatee to live in the residence while under conservatorship.
(C) Alternatives to conservatorship considered by the petitioner or proposed conservator and the reasons why those alternatives are not suitable, alternatives tried by the petitioner or proposed conservators, if any, including details as to the length and duration of attempted alternatives and the reasons why those alternatives do not meet the conservatee’s needs. Those alternatives include, but are not limited to, all of
the following:
(i) Supported decisionmaking agreements as defined in Section 21001 of the Welfare and Institutions Code.
(ii) Powers of Attorney set forth in Division 4.5 (commencing with Section 4000).
(iii) Advanced Health Care Directives set forth in Chapter 1 (commencing with Section 4670) of Part 2 of Division 4.7.
(iv) Designations of a health care surrogate as set forth in Section 4711.
(D) Health or social services provided to the proposed conservatee during the year immediately preceding the filing of the petition, when the petitioner or proposed conservator has information as to those
services.
(E) The substantial inability of the proposed conservatee to manage their own financial resources or to resist fraud or undue influence.
(2) The facts required to address the categories set forth in subparagraphs (A) to (E), inclusive, of paragraph (1) shall be set forth by the petitioner or proposed conservator if the proposed conservator has knowledge of the facts or by the declarations or affidavits of other persons having knowledge of those facts.
(3) If any of the categories set forth in subparagraphs (A) to (E), inclusive, of paragraph (1) are not applicable to the proposed conservatorship, the petitioner or proposed conservator shall so indicate and state on the supplemental information form the reasons therefor.
(4) The Judicial Council shall develop a supplemental information form for the information required pursuant to subparagraphs (A) to (E), inclusive, of paragraph (1) after consultation with individuals or organizations approved by the Judicial Council, who represent public conservators, court investigators, the State Bar, specialists with experience in performing assessments and coordinating community-based services, and legal services for the elderly and disabled.
(5) The supplemental information form shall be separate and distinct from the form for the petition. The supplemental information shall be confidential and shall be made available only to parties, persons given notice of the petition who have requested this supplemental information or who have appeared in the proceedings,
their attorneys, and the court. The court shall have discretion at any other time to release the supplemental information to other persons if it would serve the interests of the conservatee. The clerk of the court shall make provision for limiting disclosure of the supplemental information exclusively to persons entitled thereto under this section.
(b) The petition shall set forth, so far as they are known to the petitioner or proposed conservator, the names and addresses of the spouse or domestic partner, and of the relatives of the proposed conservatee within the second degree. If no spouse or domestic partner of the proposed conservatee or relatives of the proposed conservatee within the second degree are known to the petitioner or proposed conservator, the petition shall set forth, so far as they are known to the petitioner or proposed
conservator, the names and addresses of the following persons who, for the purposes of Section 1822, shall all be deemed to be relatives:
(1) A spouse or domestic partner of a predeceased parent of a proposed conservatee.
(2) The children of a predeceased spouse or domestic partner of a proposed conservatee.
(3) The siblings of the proposed conservatee’s parents, if any, but if none, then the natural and adoptive children of the proposed conservatee’s parents’ siblings.
(4) The natural and adoptive children of the proposed conservatee’s siblings.
(c) If the petitioner or proposed conservator is
a professional fiduciary, as described in Section 310, who is required to be licensed or registered under the Professional Fiduciaries Act (Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code), the petition shall include the following:
(1) The petitioner’s or proposed conservator’s proposed hourly fee schedule or another statement of their proposed compensation from the estate of the proposed conservatee for services performed as a conservator. The petitioner’s or proposed conservator’s provision of a proposed hourly fee schedule or another statement of their proposed compensation, as required by this paragraph, shall not preclude a court from later reducing the petitioner’s or proposed conservator’s fees or other compensation.
(2) Unless a petition for appointment of a temporary conservator that contains the statements required by this paragraph is filed together with a petition for appointment of a conservator, both of the following:
(A) A statement of the petitioner’s or proposed conservator’s license information.
(B) A statement explaining who engaged the petitioner or proposed conservator or how the petitioner or proposed conservator was engaged to file the petition for appointment of a conservator or to agree to accept the appointment as conservator and what prior relationship the petitioner or proposed conservator had with the proposed conservatee or the proposed conservatee’s family or friends.
(d) If the petition is
filed by a person 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 or why it was not feasible to contact any of them.
(2) Either the preferences of the proposed conservatee concerning the appointment of a conservator and the appointment of the proposed conservator or why it was not feasible to ascertain those preferences.
(e) If the petition is filed by a person other than the proposed conservatee, the petition shall state whether or not the petitioner is a creditor or debtor, or the agent of a creditor or debtor, of the proposed conservatee.
(f) If the proposed conservatee is a patient in, or on leave of absence from, a state institution under the jurisdiction of the State Department of State Hospitals or the State Department of Developmental Services and that fact is known to the petitioner or proposed conservator, the petition shall state that fact and name the institution.
(g) The petition shall state, so far as is known to the petitioner or proposed conservator, whether or not the proposed conservatee is receiving, or is entitled to receive, benefits from the Veterans Administration and the estimated amount of the monthly benefit payable by the Veterans Administration for the proposed conservatee.
(h) The petition may include an application for an
order or orders authorized under this division, including, but not limited to, orders under Chapter 4 (commencing with Section 1870).
(i) The petition may include a further statement that the proposed conservatee is not willing to attend the hearing on the petition, does not wish to contest the establishment of the conservatorship, and does not object to the proposed conservator or prefer that another person act as conservator.
(j) (1) In the case of an allegedly developmentally disabled adult, the petition shall set forth the following:
(A) The nature and degree of the alleged disability, the specific duties and powers requested by or for the limited conservator, and the limitations of civil and legal
rights requested to be included in the court’s order of appointment.
(B) Whether or not the proposed limited conservatee is, or is alleged to be, developmentally disabled.
(2) Reports submitted pursuant to Section 416.8 of the Health and Safety Code meet the requirements of this section, and conservatorships filed pursuant to Article 7.5 (commencing with Section 416) of Chapter 2 of Part 1 of Division 1 of the Health and Safety Code are exempt from providing the supplemental information required by this section, as long as the guidelines adopted by the State Department of Developmental Services for regional centers are publicly accessible via the department’s internet website and require the same information that is required pursuant to this section.
(k) (1) The petition shall state, so far as is known to the petitioner, whether or not the proposed conservatee is a member of a federally recognized Indian tribe. If so, the petition shall state the name of the tribe, the state in which the tribe is located, whether the proposed conservatee resides on tribal land, and whether the proposed conservatee is known to own property on tribal land.
(2) For the purposes of this subdivision, “tribal land” means land that is, with respect to a specific Indian tribe and the members of that tribe, “Indian country” as defined in Section 1151 of Title 18 of the United States Code.
SEC. 8.
Section 2250 of the Probate Code is amended to read:2250.
(a) On or after the filing of a petition for appointment of a guardian or conservator, a 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 that 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 310, who is required to be licensed or registered 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 their 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 their proposed compensation, as required by this paragraph, does 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 the proposed ward 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 the proposed ward 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 delivered pursuant to Section 1215 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 have not been nominated by a family member, friend, or other person with a relationship to the proposed conservatee, notice of hearing shall be delivered pursuant to Section 1215 on the public guardian of the county in which the petition is filed.
(3) A copy of the petition for temporary appointment shall be delivered pursuant to Section 1215 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 before 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 before 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 a 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 before 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) 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.
SEC. 9.
Article 4 (commencing with Section 2340) of Chapter 4 of Part 4 of Division 4 of the Probate Code is repealed.SEC. 10.
Section 2614.7 of the Probate Code is amended to read:2614.7.
If a guardian or conservator of the person or estate, or both, is a professional fiduciary, as described in Section 310, who is required to be licensed or registered under the Professional Fiduciaries Act (Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code), the guardian or conservator shall file, concurrently with the inventory and appraisal required by Section 2610, a proposed hourly fee schedule or another statement of their proposed compensation from the estate of the ward or conservatee for services performed as a guardian or conservator. The filing of a proposed hourly fee schedule or another statement of the guardian’s or conservator’s proposed compensation, as required by this section, does not preclude a court from later reducing the guardian’s, conservator’s, or their attorney’s fees or other compensation.SEC. 11.
Section 2643.1 of the Probate Code is amended to read:2643.1.
(a) On petition by a guardian or conservator of the person or estate, or both, who is a professional fiduciary, as described in Section 310 and who is required to be licensed or registered under the Professional Fiduciaries Act (Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code), the court may by order authorize periodic payments on account to a person described in subdivision (a) of Section 2643 for the services rendered by that person during the period covered by each payment only if that person has filed a proposed hourly fee schedule or another statement of their proposed compensation from the estate of the ward or conservatee for services performed as a guardian or conservator, as required by Section 2614.7, and only after the court has addressed any objections filed pursuant to subdivision (d).(b) The petition shall describe the services to be rendered on a periodic basis, the reason why authority to make periodic payments is requested and a good faith estimate of the fees to be charged by the professional fiduciary from the date the petition is filed up to, and including, the date of the next succeeding account required by Section 2620 or, if the next succeeding account required by Section 2620 is due in less than one year, a good faith estimate of the fees to be charged by the professional fiduciary from the date the petition is filed through the next succeeding 12 months, inclusive. Prior to ordering periodic payments or fixing the amount of the periodic payment, the court shall determine whether making periodic payments is
in the best interest of the ward or conservatee, taking into consideration the needs of the ward or conservatee and the need to preserve and protect the estate. If the court determines that making periodic payments is not in the best interest of the ward or conservatee, the court shall deny the petition to authorize periodic payments. If the court determines that making periodic payments is in the best interest of the ward or conservatee, the court shall fix the amount of the periodic payment. In fixing the amount of the periodic payment, the court shall take into account the services to be rendered on a periodic basis and the reasonable value of those services.
(c) (1) Notice of the hearing on the petition and notice of how to file an objection to the petition shall be given for the period and in the manner provided in
Chapter 3 (commencing with Section 1460) of Part 1.
(2) The notices required by paragraph (1) shall be made to the court investigator for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.
(d) (1) A person entitled to notice under paragraph (1) of subdivision (c) may file with the court a written objection to the authorization of periodic payments on account. The court clerk shall set any objections for a hearing no fewer than 15 days after the date the objections are filed.
(2) If an objection is filed pursuant to paragraph (1), the guardian or conservator shall have the burden of establishing the necessity for and amount, if any, of periodic
payments.
(e) The guardian or conservator of the estate may make the periodic payments authorized by the order only if the services described in the petition are actually rendered. The payments made pursuant to the order shall be reviewed by the court upon the next succeeding account of the guardian or conservator of the estate to determine that the services were actually rendered and that the amount paid on account was reasonable and in the best interest of the ward or conservatee, taking into consideration the needs of the ward or conservatee and the need to preserve and protect the estate. The court shall make an appropriate order reducing the guardian or conservator’s compensation if the court determines that the amount paid on account was either unreasonable or not in the best interest of the ward or conservatee in view of the services
actually rendered.
(f) The authorization for periodic payments granted pursuant to this section shall terminate on a date determined by the court but not later than the due date of the next succeeding account required by Section 2620. This section does not preclude a guardian or conservator from filing a subsequent petition to receive periodic payments pursuant to this section.
SEC. 12.
Section 15604 of the Probate Code is amended to read:15604.
(a) Notwithstanding any other provision of law, a nonprofit charitable corporation may be appointed as trustee of a trust created pursuant to this division, if all of the following conditions are met:(1) The corporation is incorporated in this state.
(2) The articles of incorporation specifically authorize the corporation to accept appointments as trustee.
(3) For the three years prior to the filing of a petition under this section, the nonprofit charitable corporation has been exempt from payment of income taxes pursuant to
Section 501(c)(3) of the Internal Revenue Code and has served as a private professional conservator in the state.
(4) The settlor or an existing trustee consents to the appointment of the nonprofit corporation as trustee or successor trustee, either in the petition or in a writing signed either before or after the petition is filed.
(5) The court determines the trust to be in the best interest of the settlor.
(6) The court determines that the appointment of the nonprofit corporation as trustee is in the best interest of the settlor and the trust estate.
(b) A petition for appointment of a nonprofit corporation as trustee under this section may be filed
by any of the following:
(1) The settlor or the spouse of the settlor.
(2) The nonprofit charitable corporation.
(3) An existing trustee.
(c) The petition shall include in the caption the name of a responsible corporate officer who shall act for the corporation for purposes of this section. If, for any reason, the officer so named ceases to act as the responsible corporate officer for purposes of this section, the corporation shall file with the court a notice containing (1) the name of the successor responsible corporate officer and (2) the date the successor becomes the responsible corporate officer.
(d) The
petition shall request that a trustee be appointed for the estate, shall specify the name, address, and telephone number of the proposed trustee and the name, address, and telephone number of the settlor or proposed settlor, and state the reasons why the appointment of the trustee is necessary.
(e) The petition shall set forth, so far as the information is known to the petitioner, the names and addresses of all persons entitled to notice of a conservatorship petition as specified in subdivision (b) of Section 1821.
(f) Notice of the hearing on the petition shall be given in the same manner as provided in Sections 1822 and 1824.
(g) The trustee appointed by the court pursuant to this section shall do all of the
following:
(1) File the required bond for the benefit of the trust estate in the same manner provided for conservators of the estate as set forth in Section 2320. This bond may not be waived, but the court may, in its discretion, permit the filing of a bond in an amount less than would otherwise be required under Section 2320.
(2) Comply with the requirements for registration pursuant to Part 9.5 (commencing with Section 310) of Division 2.
(3) File with the court inventories and appraisals of the trust estate and present its accounts of the trust estate in the manner provided for conservators of the estate set forth in Chapter 7
(commencing with Section 2600) of Part 4 of Division 4.
(4) Be reimbursed for expenses and compensated as trustee in the manner provided for conservators of the estate as described in Chapter 8 (commencing with Section 2640) of Part 4 of Division 4. However, compensation as trustee appointed under this section shall be allowed only for services actually rendered.
(5) Be represented by counsel in all proceedings before the court. Any fee allowed for an attorney for the nonprofit charitable corporation shall be for services actually rendered.
(h) The trustee appointed by the court under this section may be removed by the court or may resign in accordance with Chapter 9 (commencing with Section 2650) of Part 4 of
Division 4. If the nonprofit charitable corporation resigns or is removed by the court, the settlor may appoint another person as successor trustee, or another nonprofit charitable corporation as trustee under this section.
(i) The trustee appointed by the court under this section is bound by the trust instrument created by the settlor and is subject to the duties and responsibilities of a trustee as provided in this code.
