emergency conservatorships and guardianships: pursuing...

Emergency Conservatorships and Guardianships:

Pursuing Court Intervention and Orders, LitigationIdentifying Risk and Protective Factors, Standards of Review, Recent Case Law

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WEDNESDAY, APRIL 15, 2020

Presenting a live 90-minute webinar with interactive Q&A

Robert Barton, Partner, Holland & Knight, Los Angeles

Stacie L. Chau, Attorney, Holland & Knight, Los Angeles

Aaron Evans, Managing Partner, Evans Case, Denver

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EMERGENCY CONSERVATORSHIP AND GUARDIANSHIP

INTRODUCTION

• Robert Barton, Holland & Knight LLP, Los Angeles, CA

[email protected]

• Stacie L. Chau, Holland & Knight LLP, Los Angeles, CA

[email protected]

• Aaron Evans, Evans Case LLP, Denver, CO

[email protected]

6

GUARDIANSHIPS AND CONSERVATORSHIPS

7

DIFFERENCES BETWEEN GUARDIANSHIPS AND CONSERVATORSHIPS

• Nomenclature Differences

• Overview of Scope and Purpose of Guardianships and Conservatorships

• Guardianship/Conservatorship of the Person

• Conservatorship of the Estate

8

COLORADO – CONSERVATORSHIP OVERVIEW C.R.S. § 15-14-401, et. seq.

• Purpose

− Protect property that individual is unable to manage or that will be dissipated unless protection is provided.

• Requirements

− Minor

• Owns property requiring protection or may be put at risk because of age, or that money is needed for education and protection is necessary or desirable.

− Adult

• Unable to manage property because of inability to receive or evaluate information or communicate decisions, even with reasonably available technological assistance; or

• Property will be wasted or dissipated or that money is needed for support, care, education, health, and welfare.

9

COURT PROCEEDINGS: KEY ISSUES AND

TECHNIQUES FOR ELDER LAW ATTORNEYS

10

PROTECTIVE PROCEEDINGS AND CIVIL RIGHTS

Fundamental Rights

• Guardianships and conservatorships are invasive proceedings.

− Guardian/Conservator typically control finances, residence and medical treatment.

− “Least restrictive alternative” = maximize self-determination and autonomy where possible

11

CONSERVATEE’S/WARD’S RIGHTS CONT.

• Proceeding takes away the civil rights of the proposed conservatee/ward, and placing

those rights in the hands of the proposed conservator/guardian.

− California Constitution, Article 1, Section 7(a) – Due Process

− California Constitution, Article 1, Section 13 – Unreasonable Search and Seizure

− Right to Jury Trial in Conservatorship Proceedings- Cal. Prob. Code, § 1827

• “Appointment of a conservator of the estate is an adjudication that the conservatee/ward

lacks the legal capacity to enter into or make any transaction that binds or obligates the

conservatorship estate.” (Cal. Prob. Code, § 1872.)

12


Retention of Rights:

• After appointment of conservator, the conservatee/ward keeps the right to:

− Be represented by a lawyer

− Ask the judge to replace the conservator or end the conservatorship

− Make or change his/her will

− Directly receive and control his/her salary

− Control an allowance (personal spending money the court has authorized the conservator to pay directly to conservatee/ward)

13


• Unless the court has limited or taken the right away, the conservatee/ward also keeps the

right to:

− Vote

− Marry or enter into registered partnership

− Makes his or her own medical decisions

− Enter into transactions, to the extent reasonable to (1) provide the necessaries of life to the conservatee/ward and his or her minor children, and (2) provide the necessaries of like to his or her spouse or basic living expenses to his or her registered domestic partner

− Engage in other activities the court expressly allows him or her to do

14

INITIATING PROTECTIVE PROCEEDINGS

California

• What does it entail?

• Notice requirements

• Who can initiate?

• Who can serve?

• Appointment and Bonds

• Reporting duties and accounting

• Claims

Colorado

• What does it entail?

• Notice requirements


• Who can serve?

• Appointment and Bonds

• Reporting duties and accounting

• Claims

15

CALIFORNIA CONSERVATORSHIPS

• Who is it for?

− For Adults or Married Minors (Cal. Prob. Code, § 1800.3, subd. (a).)

− Must show by clear and convincing evidence (Cal. Prob. Code, § 1801, subd. (e).):

• Conservator of the Person – proposed conservatee is unable to provide for personal needs (Cal. Prob. Code § 1801, subd. (a).)

• Conservator of the Estate – proposed conservatee is unable to manage financial resources or resist undue influence. (Cal. Prob. Code § 1801, subd. (b).)

16

CALIFORNIA CONSERVATORSHIPS CONT.

• Requires an express finding that granting of the conservatorship is the least restrictive

alternative needed for the protection of the conservatee. (Cal. Prob. Code, §1800.3, subd.

(b).)

• Conservatorship of O.B. (2019) 32 Cal.App.5th 626

• “’No conservatorship of the person ... shall be granted by the court unless the court

makes an express finding that the granting of the conservatorship is the least restrictive

alternative needed for the protection of the conservatee.’ (§ 1800.3, subd. (b).)”

• Does not require the trial court to set forth on the record that less restrictive alternatives

to a conservatorship were considered.

• “Because such express findings are not required, we presume the court followed the

law in making its determination [citation], including a consideration of [less restrictive

alternatives].”

17


• Petition for Appointment of Conservator (Form GC-310). (Cal. Prob. Code, § 1820.)

• Confidential Supplemental Information form (Form GC-312). (Cal. Prob. Code, §

1821(a).)

• Confidential Conservator Screening form (Form GC-314.)

• Professional Fiduciaries – Proposed Compensation Schedule. (Prob. Code, § 1821(c).)

18

PROTECTIVE PROCEEDINGS AND CIVIL RIGHTS CONT.

• Ensuring Protection for Fundamental Rights- Notice to Conservatee/Family

Members

• Mandatory notice requirements are normally required

− Notice is necessary to ensure that the proposed conservatee/ward and any interested party have a due process right to participate in proceedings establishing the proposed guardianship/conservatorship.

• Notice Requirements for Petitions to Appoint Conservatorships

− 15 days before hearing. (Cal. Prob. Code § 1822(a).

− Spouse/Domestic Partner and Relatives named in petition. (Cal. Prob. Code § 1822(b).)

− Citation to Proposed Conservatee. (Cal. Prob. Code § 1823(a).)

− Exception – Petitioner is Proposed Conservatee. (Cal. Prob. Code § 1823(a).)

19


− In certain emergency situations, notice can be waived:

• Example: Proposed Conservatee is being abused by a family member typically entitled to notice (i.e., a son or daughter) and there is fear that son or daughter has ability to take proposed conservatee to another jurisdiction.

• Temporary restraining orders may also be sought.

• Note, there may be special rules when dealing with co-habitant

20



• Proposed Conservatee, Spouse/Domestic partner, Relative, Friend, Specified Public

Agencies, or Other Interested Persons. (Prob. Code § 1820(a).)

• Creditor may not initiate unless spouse, relative or specified public agencies. (Prob. Code

§1820(c).)

21


• Who can serve?

• If sufficient capacity, nominee of the proposed conservatee has preference. (Cal. Prob.

Code § 1810.)

• Spouse, domestic partner/adult child, parent, sibling of the proposed conservatee can

nominate conservator. (Cal. Prob. Code § 1811.)

• Preference to appointment as follows:

• Spouse/Domestic Partner or nominee thereof

• Adult Child or nominee thereof

• Parent or nominee thereof

• Sibling or nominee thereof

• Any other person qualified and willing (Cal. Prob. Code § 1812(b).)

• Spouse may not serve as conservator if party to a divorce proceeding, absent finding it is in

the best interest of the Conservatee. (Cal. Prob. Code § 1813.)

• Banks and Trust Companies – Only Conservator of the Estate. (Cal. Prob. Code § 300.)

22


• Appointment

• Discretion of the court by what appears to be necessary and for the best interest of the

proposed conservatee (Cal. Prob. Code § 1812(a).)

• Letters of Conservatorship

• Order appointing the conservator is not effective until letters have been issue. (Cal.

Prob. Code § 2310.)

• Oath (Cal. Prob. Code § 2300(a).)

• Bond

• Bond required prior to the issuance of letters. (Cal. Prob. Code § 2320.)

• Equal to:

• Value of the personal property of the estate;

• Probable annual gross income of the estate; and

• A reasonable amount for the cost of recovery to collect on the bond.

• Including attorney’s fees and costs.

23

CALIFORNIA CONSERVATORSHIPS

• Reporting Duties and Accounting

• Inventory and Appraisal as of the date of the appointment. (Cal. Prob. Code § 2610(a).)

• Periodic accountings must be filed with the court. (Cal. Prob. Code § 2620(c).)

• After first year and, thereafter, at least every 2 years.

• Disclosure of the sale/lease/rental of estate property to conservator/ward’s family. (Cal.

Prob. Code § 2403(c).)

• Claims

• Interested persons may object to the accounting. (Cal. Prob. Code § 2622.)

• Ward/Conservatee, Spouse/Domestic Partner, Relative, Friend or interested person may

petition to remove the Guardian/Conservator. (Cal. Prob. Code § 2651.)

• 15 days notice prior to hearing. (Cal. Prob. Code § 1460.)

24

COLORADO – UNCONTESTED PROCESS

• Petition

− Who may petition?

• Person to be protected

• Individual interested in estate, affairs, or welfare of person to be protected

• Person who would be adversely affected by lack of property management

− Priority

• Current conservator, guardian, or other fiduciary

• Nominated conservator

• Agent/POA

• Spouse/Partner

• Adult child

• Parent

• Adult residing with respondent for more than 6 months

• Notice (personal service if respondent age 12 or older)

• Court Visitor

• Professional Evaluation (if ordered by Court)

• Hearing

25

COLORADO - DOCUMENTS TO BE FILED

• Before Hearing

− JDF 876 – Petition

• CBI Criminal History Report

• Identification (DL, passport, etc.)

• Credit Report

− JDF 805 – Acceptance of Office

− JDF 721 – Irrevocable POA

− JDF 880 – Proposed Letters of Conservatorship

− JDF 878 – Proposed Order

− JDF 806 – Notice of Hearing to Interested Persons

− JDF 807 – Notice of Hearing to Respondent

26

COLORADO - DOCUMENTS TO BE FILED CONT.

• After Appointment

− JDF 800 – Acknowledgment of Responsibilities

− JDF 705 – Probate Case Information Sheet

− JDF 882 – Inventory with Financial Plan and Motion for Approval

− JDF 883 – Proposed Order re Conservator’s Financial Plan

− JDF 885 – Annual Conservator’s Report

27

EMERGENCY SITUATIONS

• Classic Example: Neighbor or “close” relative begins to isolate parent where parent is

dependent and has cognitive deficiencies.

• Social factors that make these situations common

• Remedies:

− Ex parte proceedings

− Temporary guardianships/conservatorships

− Restraining Orders (Elder abuse, domestic violence, temporary restraining orders)

• California

• Colorado

28

CALIFORNIA – EMERGENCY SITUATIONS

• Ex Parte Proceedings and Temporary Guardianships and Conservatorships (Prob. Code

§ 2250)

− Basis – Petition must state facts to establish “good cause”

− Notice - 5 days (Cal. Prob. Code § 2250(e).)

• No notice requirement on showing of good cause (Cal. Prob. Code § 2250(k); C.R.C., Rules 7.1012, 7.1062.)

▪ “substantial and immediate harm”

− 30 Days or Appointment of Permanent Conservator/Guardian (Cal. Prob. Code § 2250(f).)

− Proposed Conservatee/Ward must attend hearing unless:

• Out of State;

• Medically Unable; or

• Court Investigator Reports Conservatee/Ward is unwilling to attend, does not oppose proceeding, or object to the proposed conservator/guardian. (Cal. Prob. Code §2250.4.)

− Accounting within 90 days. (Cal. Prob. Code § 2256.)

29

CALIFORNIA – EMERGENCY SITUATIONS CONT.

• O'Brien v. Dudenhoeffer, 16 Cal. App. 4th 327, 19 Cal. Rptr. 2d 826 (1993)

− Conservator brought action seeking to void conservatee's transfer of real property by gift deed while she was subject to temporary conservatorship. The Superior Court, Santa Barbara County, entered judgment for grantees, and conservator appealed. The Court of Appeal, Yegan, J., held that order appointing temporary conservator was adjudication that conservatee lacked capacity to give away her property.

− Statutes governing permanent conservatorships apply to temporary conservatorships

30

COLORADO – EMERGENCY DISTINGUISHED

• Emergency

− Imminent threat of immediate or substantial harm.

− Would following ordinary appointment process cause unreasonable delay?

− Standard is not statutorily defined but Courts use same standard as emergency guardian (C.R.S. § 15-14-312).

• Typically filed simultaneously with request for emergency guardian.

• Form Petition does not include designation for emergency conservator.

• Requirements

− “Immediate or Substantial Harm.”

− No other person with authority and willingness to act.

31

COLORADO – REQUIREMENTS

• “Immediate or Substantial Harm”

− Courts reluctant to find emergency.

• County by county basis.

• Advisable to ask Court Clerk for review to determine if emergency exists.

− Physician’s letter.

− Professional evaluation may be ordered at or before hearing.

• Examination by physician, psychologist, or other individual appointed by Court.

• Submit written report.

32

COLORADO - REQUIREMENTS CONT.

• No other person with authority and willingness to act

− POA, guardian or conservator designation, medical directives/“living will.”

• Advantages of Emergency Guardian/Conservator

− Greater authority than POA or other agency designation.

33

COLORADO – EMERGENCY HEARING

• Within 14 days.

• Respondent’s attendance generally required.

− Petitioner shall make every reasonable effort to secure attendance.

− Any person may request permission to participate in proceeding.

• Examination of witnesses, presentation of evidence.

− Transcript often helpful in permanent guardian/conservator appointment.

• Protective Order

− Court to issue least restrictive order necessitated by person’s limitations.

34

COLORADO – LIMITATIONS

• Limitations on authority

− Emergency authority may not exceed 60 days.

− Only given powers specified in court order.

• Limited to scope necessary to address imminent threat.

− May be removed or have powers modified at any time.

− May be required to submit reports.

• Certain actions require court approval (see C.R.S. § 15-14-411).

• Appointment is not a determination of incapacity.

• All other provisions of probate code apply to emergency conservator.

35

COLORADO – KEY DIFFERENCES

• Emergency vs Permanent Conservator

− Duration

• Emergency conservatorship only extends up to 60 days.

• Permanent conservatorship continues until terminated.

▪ Without regard to location of guardian or protected person.

− Priority

• Existing conservator granted top priority for appointment.

• Emergency conservator excluded from priority for appointment as permanent conservator.

▪ Emergency conservator is not included in definition of “conservator” in C.R.S. § 15-14-102(2).

36

CALIFORNIA - GUARDIAN AD LITEM AND COURT APPOINTED COUNSEL

− Court Appointed Counsel in California (CAC)

• CAC’s primary duty is to represent the interests of client. CAC’s secondary duty is to assist the court in the resolution of the matter to be decided. (LASC Rules, rule 4.125.)

− Guardian Ad Litem in California

• Court is authorized to “appoint a guardian ad litem at any stage of a proceeding under this code to represent the interest of…[an incapacitated person] if the court determines that the representation of that interest otherwise would be inadequate…” (Cal. Prob. Code § 1003(a)(2).)

− Guardian Ad Litem v. Court Appointed Counsel

▪ GAL derives power from Court while CAC derives power from Client.

▪ GAL is not an advocate.

▪ GAL – Subject to discovery, statements can be evidence – CAC Attorney Client Privilege

▪ GAL – Entitled to Quasi Judicial Immunity

37

COLORADO - SPECIAL/LIMITED CONSERVATOR

• Special Conservator

− While petition for conservatorship is pending to preserve property.

− No finding of emergency necessary.

− Limited purpose or for single transaction.

− Often used for facilitating personal injury claims.

• Limited Conservator

− Limits authority to only certain property.

− Courts’ preference.

• Petition for unlimited conservator requires reason for why limited conservatorship is inappropriate.

− Court visitor may provide recommendations for limitation.

− Regular appointment process applies.

38

Transition Between Emergency and Non-Emergency Conservatorship/Guardianship

• Transition to non-emergency conservator/guardian

− Probate Code makes no provision for transition.

− Colorado cases state provisions for appointing non-emergency guardian govern at end of 60-day maximum.

• Requires court visitor and personal service of petition and notice of hearing.

• Spohr v. Freemont Cty. Dep’t of Human Servs., 422 P.3d 625 (Colo. App. 2018).

− Emergency guardianship.

− Heavily turns on notice requirements and transition from emergency to non-emergency appointment.

39

Transferring Conservatorship to Another State and Out of State Recognition

• Conservatorships – Out of California

− Conservator may petition the court to transfer the conservatorship to another state. (Cal. Prob. Code § 2001(a).)

− Notice – same as Petition for Appointment Conservator. (Cal. Prob. Code § 2001(b.)

− Provisional order upon acceptance of the conservatorship in the other state (Cal. Prob. Code § 2001(d)) and the court finds the following:

• Conservatee is present in or expected to permanently move to the other state;

• No valid objections to the transfer;

• Plans for care of conservatee are reasonable and sufficient; and

• Adequate arrangements will be made for management of the conservatee’s property.

− Order finalized upon receipt of both:

• Provisional order from the other state accepting the transfer; and

• The documents required to terminate the conservatorship.

40

RECENT CASE LAWS, STATUTES AND DEALING

WITH COVID 19

41

ISSUES FACED BY COURT APPOINTED COUNSEL

• Court Appointed Counsel must report to courts regarding their interactions with the client

• In contradiction to ethical rules for attorneys to “maintain inviolate the confidence, at

every peril to himself or herself to preserve the secrets, of his or her client.” (Cal. Bus. &

Prof. Code § 6068(e)(1).)

• Other states allow attorneys to take limited actions to protect their client with diminished

capacity. (ABA Model Rule 1.14.)

• California declined to adopt

− Multi-year effort to update California Rules of Professional Conduct, the State Bar Board of Trustees submitted 70 proposed new or amended rules to the California Supreme Court. The only rule the California Supreme Court did not adopt is the proposed version of Model Rule 1.14.

42

GUARDIANSHIP AND CONSERVATORSHIP AMIDST COVID- 19, UNCHARTERED TERRITORIES

• Court system challenges - What is opened? What can be processed? How are

emergencies handled?

− California

• Courts to extend deadlines for arraigning defendants and holding preliminary hearings. The order also allows courts to use technology allowing proceedings to take place remotely.

• Jury trials suspended for 60 days. Courts allowed to hold trials before 60 days if they can do so through remote appearances or if they declare “good cause showing.”

• Trial courts have broad authority to adopt rules addressing operations during COVID-19 pandemic.

43


• San Francisco Superior Court

− Ex parte applications for temporary letters in guardianship and probate conservatorship matters, for special letters of administration, or to advance a hearing date in any matter are subject to a showing in the moving papers of immediate and irreparable injury justifying an emergency hearing. Court will determine and take off calendar matters that do not see sufficiently emergent.

• Los Angeles Superior Court

− All cases continued except “except hearings on temporary guardianship petitions, temporary conservatorship petitions, and temporary restraining orders involving elders”

− Ex partes are only determined by documents e-filed, and orders will be posted electronically the same day.

44

GUARDIANSHIP AND CONSERVATORSHIP AMIDST COVID- 19, UNCHARTERED TERRITORIES - CONT.

• Conservatorship Proceedings

− California law requires that a proposed conservatee must attend the hearing on the conservatorship, except:

• Out of State;

• Medically Unable; or

• Court Investigator Reports Conservatee/Ward is unwilling to attend, does not oppose proceeding, or object to the proposed conservator/guardian. (Cal. Prob. Code § § 2250.4 [temporary conservatorship], 1825 [conservatorships].)

− Los Angeles Superior Court Orders

• March 17, 2020 Order – all court rooms will remain closed except for, among other things, emergency petitions for temporary conservatorships and guardianships

• March 23, 2020 Order - access to the court shall be restricted to parties, attorneys, witnesses and other authorized persons

− Therefore, if there is a temporary conservatorship petition filed, the proposed conservateewould be required to show up at the hearing.

45


• Los Angeles Superior Court Trusts and Estates Section – Special eBulletin April 2020

− Court call is available for telephonic appearances in “Essential Hearings” such as Temporary Guardianship and Conservatorship matters. Court call fees reduced from $94 to $54 per user.

− Proposed Conservatees on a hearing on a Petition for Temporary Conservatorship are generally required to appear unless an exception to personal appearance applies pursuant to Probate Code section 2250.4. The court will consider any accommodations requested from counsel or parties.

− Temporary letters will be extended to continued hearing date.

46


• New April 9, 2020 Los Angeles Superior Court Order

− All essential juvenile dependency hearings will be held remotely

− Conducted via WebEx – video or audio appearances

− “Remote technology is a solution for social distancing in our courthouses and supports the Court’s General Orders to prioritize time- sensitive essential services and hearings during the public health crisis.”

− Likely will soon apply to conservatorship proceedings

− May possibly apply even after the social distancing orders are lifted, to reduce potential exposure to COVID-19 to elders

47


• Colorado during Covid-19

− As of March 16, 2020, all Colorado Courts went to skeleton staffs and any in person hearings were continued.

• Courts are permitting limited hearings to continue via telephone or even Zoom on certain matters

▪ Examples –

• Rule 62 – Court Approval of a Personal Injury Settlement

• Guardianships or Conservatorships

• Court Ordered mediations

• Guardianship & Conservatorships –Emergency

▪ Courts are permitting petitions for emergency Guardianships or Conservatorships

• Seeing Courts issue Orders permitting Respondent to appear in Court, if possible, while all other parties appear via telephone

• Court stating hearing is to decide if an emergency exists or not

• More appointments of Guardian Ad Litem sooner than normal

▪ Non-Emergency

• All hearings are being set in June as more of a status conference versus actual hearing on merits of petitions

48


• Client challenges

− Unable to meet with clients or potential Respondent

− Protecting the rights of a Respondent

− Issues & Advice during Covid-19

• Work get physician to support any action

• Best advice on how to handle cases

− Getting capacity evaluations done via telephone or in-person

• How to handle during lock-down

• Options

− What constitutes an essential service during Covid-19

49

COVID-19 CONSIDERATIONS

• Patients Under Conservatorship

− “If the conservatee has not been adjudicated to lack the capacity to give informed consent for medical treatment, the conservatee may consent to his or her medical treatment.” (Cal. Prob. Code § 2354 (a).)

− “If the conservatee has been adjudicated to lack the capacity to make health care decisions, the conservator has the exclusive authority to make health care decisions for the conservateethat the conservator in good faith based on medical advice determines to be necessary.” (Cal. Prob. Code § 2355 (a).)

• Patients with urgent medical conditions who cannot express their wishes re

medical treatment

− Ex parte application for temporary guardianship/conservatorship over the person, but still takes time and limited by the court.

50

COVID-19 CONSIDERATIONS

51

COVID-19 CONSIDERATIONS CONT.

• If you intend to have specific health care instructions, especially those that may

differ from the wishes of your family, you need to plan ahead.

• Family Members and Health Care Surrogates

− “A patient may designate an adult surrogate to make health care decisions by personally informing the supervising health care provider. The designation of a surrogate shall be promptly recorded in the patient’s health care record.” (Cal. Prob. Code § 4711 (a).)

− “If a patient lacks capacity to make a health care decision, the patient’s domestic partner shall have the same authority as a spouse to make a health care decision for his or her incapacitated spouse.” (Cal. Prob. Code § 4716 (a).)

52

COVID 19 CONSIDERATIONS – CONT.

• Execute or update your Advance Health Care Directive (AHCD)

− California has a form AHCD that can be downloaded and filled out without an attorney

− Part 1 – name your health care agents

− Part 2 – elect to have your life prolonged, or not prolonged, in the event you are going to pass soon, or you won’t likely regain consciousness.

• AHCD is NOT a Do Not Resuscitate Order.

− Part 3 – elect to donate organs

− Part 4 – optional information regarding your physician.

− Need to be signed before a notary OR two adult witnesses, one of whom must also sign an additional statement on the form stating they are neither related to you nor shall inherit anything upon your death.

• Remote notarization

• Virtual witnesses?

53

COVID-19 CONSIDERATIONS – CONT.

• Durable Power of Attorney for Health Care (same as AHCD in California)

• Living Will

• Physician Orders for Life-Sustaining Treatment (POLST)

• Do Not Resuscitate Orders (DNR)

54

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