The California Assembly is allowing two pieces of legislation to proceed that would reform probate court proceedings in adult and elder guardianship cases but at least one of the proposed bills has advocates up in arms.
Assembly Bill 1194 was introduced by Assemblyman Evan Low (D-San Jose) while Senate Bill 724 is sponsored by Senator Ben Allen (D-Santa Monica).
“Evan Low is pretending that his bill is something good for the system and good for seniors but it's just the opposite,” said Tom Coleman, an attorney and founder of the Disability and Guardianship Project in Palm Springs, which monitors the conservatorship system statewide for abuses, neglect, and exploitation.
“He's doing the bidding of the Bar Association and the Professional Fiduciary Association and who knows what type of donations they will make to his re-election campaign. AB 1194 is not something that people who are concerned about elderly and disabled people should support.”
Assemblyman Low did not immediately respond to requests for comment.
“AB 1194 has gone through two committees and is still pending in the Assembly,” Coleman told the Southern California Record.
Fans of Britney Spears have rallied around the pop star in recent years and brought to the forefront the plight of adults who are trapped in unjust and, in some cases, abusive court-appointed guardianships.
“The Free Britney movement has played a role in AB 1194 to the extent that some people are being opportunistic in citing the Brittany Spears case but they are misappropriating the Brittany Spears case and movement’s name,” Coleman said.
SB 724, on the other hand, is a landmark, according to Coleman.
Sponsored by Senator Ben Allen (D-Santa Monica), SB 724 would allow an adult whose capacity is in question to select an attorney of their choice. Currently, probate court judges assign an attorney ad litem to senior citizens or adults with disabilities who are said to need a guardian or conservator.
For example, Spears was prohibited from hiring attorney Adam Streisand in 2008 because medical records reported she was incapable of deciding, according to media reports. As a result, the singer was appointed a probate court attorney.
“The loyalty of attorneys appointed by the probate court is not to the person who is allegedly incapacitated,” Coleman said. “Their loyalty is to the court because the court controls their income stream to a large extent by deciding how many future cases they get appointed to and how much money from the estate they get paid.”
Senate Bill 724 was approved last week by the Judiciary Committee.
“It has bipartisan support,” Coleman said. “Republican members voted for it and now is pending in the appropriations committee for review of its financial aspects if any.”
Regarding how many adults or elderly Californians are under the thumb of a conservator or guardian statewide, Coleman said no one knows for sure.
“There are about 46,000 adults with developmental disabilities under conservatorship based on records I have obtained from the Department of Developmental Services,” Coleman said. “The Judicial Council doesn't know how many people are under the so-called protection of the court because they don't keep track, which is a sad state of affairs.”
Coleman’s organization has mailed or emailed requests for records to all 58 superior courts for answers on how many open guardianship or conservatorship cases they have on file for 2019 and 2020 and, so far, 25 superior courts have responded.
“Los Angeles Superior Court is playing games,” Coleman said. “They don't want to respond. So, I wrote back and informed them that their failure to cooperate will be noted in the report that we issue to the Governor’s office, the Judicial Council, and the Legislature.”
Los Angeles Superior Court did not immediately respond to requests for comment.
The AB 1194 stipulations that are disturbing to advocates like Coleman include the following:
AB 1194 includes a provision reducing the maximum civil penalty for fiduciary violations to $25,000 from $50,000, according to a press release.
“When a fiduciary does something that's not in the best interest of the person they're supposed to be protecting, they don’t want to pay civil penalties so the lobbyists of the professional fiduciaries got the penalty reduced to $25,000 when there shouldn't be a limit on violations,” Coleman said.
Revoking a bad fiduciary’s license will become more difficult under AB 1194.
“The bill requires a court to find clear and convincing evidence, which is a very high standard of proof,” Coleman said. “Who is going to prove wrongdoing by the fiduciary? The person who's under a conservatorship or guardianship doesn't have funds or access to their funds because the fiduciary is controlling their money. Oftentimes, the victim who is being defrauded doesn’t even have an attorney at that point because their attorney has walked away.”
Requires a professional fiduciary on any estate worth $1 million or more.
“It's pushing out family members and in this day and age, it only takes owning a couple of properties to create a million-dollar estate,” Coleman said. “Even though the elderly person or the person with a disability wanted to have a particular family member or a particular person control their million-dollar estate, AB 1194 would make that impossible if there is a conservatorship or guardian appointed.”