Assembly Bill 1194, approved by Governor Newsom on September 30, 2021, tightens oversight of California conservators, especially those licensed by the Professional Fiduciaries Bureau.
The bill expands the duties of California courts with respect to conservatorships, though some reforms depend upon funding in future legislation. With a projected budget surplus, and keen public interest in the Britney Spears conservatorship, the Legislature appears likely to fund the implementation of AB 1194 in 2022.
For now, what provisions of AB 1194 are of primary interest to California conservatorship lawyers? If given an opportunity to “free” a “Britney,” should a lawyer jump at the chance to “Do Somethin’” or decline a project that could become “Toxic”? Though readers may “Hold It Against Me,” song titles “Sometimes” decorate our look at AB 1194.
“Everytime” — Mandatory Appointment of Counsel for Conservatee
Current Probate Code section 1471 mandates appointment of a lawyer for a conservatee or proposed conservatee only if the person is unable to retain counsel and requests the appointment of counsel. Otherwise appointment is optional based on the court’s assessment of what’s necessary to protect the interests of the conservatee.
AB 1194 amends section 1471 to compel the appointment of counsel in key conservatorship proceedings, such as petitions to establish or terminate a conservatorship, appoint or remove a conservator, or remove a temporary conservatee from that person’s home.
The appointed attorney may be a private attorney or a public defender, with the practice varying from county to county.
“My Prerogative” — Freedom to Choose and Direct Counsel
A principal issue in the Britney Spears conservatorship “Circus” was whether she could choose her own lawyer to replace her court-appointed counsel, Samuel D. Ingham III.
AB 1194 facilitates freedom of choice by amending Probate Code section 1471. If a person subjected to a conservatorship proceeding “expresses a preference for a particular attorney to represent them, the court shall allow representation by the preferred attorney, even if the attorney is not on the court’s list of a court-appointed attorneys.” At the same time, “an attorney who cannot provide zealous advocacy or who has any conflict of interest” will be disqualified.
Existing conservatorship law and practice was foggy as to the role of court-appointed counsel, as noted in a prior post. AB 1194 revises Probate Code section 1471 and burns off the fog. The bill clarifies that the role of court-appointed counsel “is that of a zealous, independent advocate representing the wishes of their client, consistent with the duties set forth in Section 6068 of the Business and Professions Code and the California Rules of Professional Conduct.”
With this clarification, attorneys should focus on taking direction from the client, as best as possible, rather than advocating based on the attorney’s perception of the client’s best interests. Hence, if the client articulates a wish to avoid conservatorship, the attorney (after a frank discussion with the client) should resist the imposition of a conservatorship even if the attorney personally believes it may be appropriate.
“Scream & Shout” — Greater Risk of Nonpayment for Attorneys Representing Conservators
Attorneys who represent conservators may be paid from the conservatee’s estate only upon court approval, with the court having discretion to determine what compensation is “reasonable.” This means that attorneys may work for many months before receiving payment and can’t be certain that their fees will be fully paid.
By amendment to Probate Code section 2640, AB 1194 requires that legal services to conservators must be “in the best interest” of the conservatee to qualify for payment from the conservatee’s estate. Fee petitions will need to meet this requirement.
The bill also makes it harder for conservators to recoup costs or fees incurred in unsuccessful litigation such as the defense of a fee petition or an opposition to a petition filed by or on behalf of the conservatee. Unless the court determines by clear and convincing evidence that the defense or opposition was made in good faith, based upon the best interest of the conservatee, and did not harm the conservatee, the court shall deny compensation to the non-prevailing conservator.
This means that conservators and their attorneys will have to think long and hard before litigating with conservatees, and will be incentivized to enter into settlement agreements, as fee payment may turn on the uncertain outcome of litigation and the court will have narrow leeway to authorize payment in the absence of success.
AB 1194 adds to the complexity of California conservatorship law. Attorneys who regularly handle conservatorship matters will need to familiarize themselves with the provisions that take effect on January 1, 2022.
Attorneys “Alien” to the conservatorship world may find opportunities to “free” a “Britney” because AB 1194 opens up representation of conservatees to their chosen advocates. Such lawyers, however, should not enter the conservatorship realm without familiarizing themselves with the governing statutes.
If the Legislature funds AB 1194 implementation in the coming year, probate courts will have to reconfigure how they oversee conservatorship calendars and bring on additional staffing. For example, Sacramento County Superior Court may need to add another probate judge and supporting staff to handle increased conservatorship work given the backlog that already exists in Department 129.
Where to from here? As a blogger who enjoys an occasional Britney song, “Don’t Let Me Be the Last to Know.”