The Demiris Law Firm, P.C. obtains Temporary Conservatorship After Evidentiary Hearing

On Wednesday, November 15, 2017, Constance Figuers, attorney at the Demiris Law Firm was successful at an evidentiary hearing in the Superior Court of California, Alameda County in obtaining a temporary conservatorship of the person for an elderly lady in need.  After an all-day trial and after multiple witnesses were called to testify, the Court granted the temporary conservatorship of the person and appointed a private professional fiduciary.  The litigation was intense as it involved the suspension of powers of attorney involving the elderly lady's husband.

Demiris & Moore successfully obtains ex parte suspension orders of conservator of husband and wife

On January 19, 2017, in Alameda County Superior Court Cases numbered RP 16803069 and RP 16803088 Konstantine “Kosta” Demiris of Demiris & Moore was able to obtain two ex parte suspension orders against a conservator of the person and estate of a husband and wife.  Kosta was able to get his client appointed as the temporary conservator of both the person and of the estate of the elderly couple pending the hearing on the removal petition and pending the hearing to appoint a permanent successor conservator.

 

California Probate Conservatorship Burden of Proof is Clear and Convincing Evidence

Under California law, the California Probate Code requires that prior to establishing a probate conservatorship of either one's person or estate that the proponent or petitioner must prove their case by clear and convincing evidence.  This legal standard is codified under Probate Code section 1801.  This is not to be confused with the LPS conservatorship standard of beyond a reasonable doubt.

The clear and convincing evidence standard is greater than a preponderance of the evidence standard and less than the beyond a reasonable doubt evidence standard.  In other words, this is not an "iffy" case situation.  A petitioner is required to have actual evidence necessitating a conservatorship of one's person or one's estate.  Such evidence must be clear and convincing.

Recent California Court of Appeals Decision holds that Probate Conservatorship does not require an individual to personally waive right to jury trial when represented by counsel

In the case of the conservatorship of the person of B.C. (Ventura County), the 2nd District Court of Appeals determined that it was harmless error when the judge failed to advise the individual subject to the conservatorship proceedings of her right to a jury trial because the individual was represented by counsel.  The Court also distinguished Probate Conservatorships from LPS Conservatorships.  The Court stated that unlike LPS conservatorships where involuntary confinement can occur; Probate Conservatorships are different in that regard.  Furthermore, the Court of Appeals stated that a citation was issued and served on the individual subject to the conservatorship proceedings advising her of her right to a jury trial.  The Court of Appeals found that the individual did not contest that the citation was not properly issued or served.  In fact, the individual responded to it by filing opposition papers.  The Court of Appeals concluded that probate conservatorship proceedings are conducted under the law and procedure relating to civil actions, and, that such include trial by jury if demanded by the proposed conservatee.  The Court of Appeals found that neither the individual subject to the proceedings nor her appointed counsel demanded a jury.

 

 

Conservatorships - Transfers from California to other States and from other States to California

Relatively new legislation allows for streamlined measures for a conservatorship that is established in California may be transferred to another state.  Likewise a conservatorship established in another state may be transferred to California. 

This is a result of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act ("UAGPPJA") being accepted as part of the California Conservatorship Jurisdiction Act ("CCJA").  This legislation is effective as of January 1, 2015 to conserved individuals who are to be moved to or from California after conservatorship proceedings have begun.  The CCJA applies as of January 1, 2016, to all new petitions to establish probate conservatorships such as conservatorship of the person, conservatorship of the estate, or both, for individuals who have moved to California within six months before proceedings are initiated.

The California Probate Code has codified these laws under Probate Code sections 2001-2003.  See the link attached:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=02001-03000&file=2001-2003

             Only a conservator appointed in California may petition the Court for transfer to another state.  All persons entitled to notice in California are required to be served notice.  A hearing is then held by the court to determine if transfer will likely be accepted by the other state.   There are three things that must also be found by the Court:

1)      The conserved person is physically present in the other state or reasonably expected to move permanently to the other state.

2)      No objection to the transfer has been made.  If an objection has been made then the Court must determine the transfer would not be contrary to the interests of the conserved person.

3)      Plans for care and services for the conserved person in the other state are “reasonable and sufficient.”

The Court can thereafter make a provisional order granting a petition to transfer proceedings to another state and direct the conservator to petition the other state to accept the conservatorship.

The Court will issue a final order confirming the transfer and terminating the conservatorship upon receiving both:

1)      A provisional order accepting the transfer of the proceeding from the Court in the other state by way of orders that are similar to the requirements in Probate Code section 2002.

2)      The documents required to terminate a conservatorship in California, including, but not limited to, any required accounting.