Effective January, 1, 2020, the Legislature changed California conservatorship law with respect to the personal residences of conservatees. Senate Bill 303 attempts to protect conservatees by making it harder to relocate them from and sell their residences. Proponents argued that existing law made it too easy for conservators to liquidate the homes of conservatees. The Judicial Council of California unsuccessfully requested a veto, raising competing policy concerns.
Since many California conservatorships involve an elder who lives at home, or who potentially could return home, the new law has become an important part of the conservatorship landscape.
Clear and Convincing Evidence Now Required to Overcome Presumption in Favor of Personal Residence
One of the key powers of a conservator of a person in California, under Probate Code section 2352, is to establish the residence of the conservatee. The conservator must select the least restrictive appropriate residence that is available and necessary to meet the conservatee’s needs and is in the best interests of the conservatee.
The personal residence of the conservatee when the conservatorship proceeding begins is presumed to be the least restrictive appropriate residence. For example, if Mom has been living in her single family home in Roseville for 30 years, but is now experiencing dementia, the conservator must have good reason to move her out of the home and into an institutional setting. Determining the appropriate level of care includes evaluating the level of care she has received at the home and the measures that would be necessary to keep her there.
SB 303 changes the legal standard for when a court may deem appropriate the removal of a conservatee from her residence. Under amended Probate Code section 2352.5, the conservator must now show that a proposed removal is necessary by “clear and convincing evidence.” This burden of proof, while lower than “beyond a reasonable doubt,” requires a finding of high probability. The proponent of removal must submit evidence “so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.”
In other words, if the evidence is mixed, but it reasonably appears that Mom can remain at her cherished home in Roseville with support from caregivers, the court should rule that Mom can remain in her home.
With this new burden of proof, probate judges will more closely scrutinize relocations sought by conservators. Family members who want to keep conservatees at home may be more inclined to object to their relocation. We can expect that conservators will be more prone to keep conservatees in their residences rather than risk an adverse ruling from the court.
Clear and Convincing Evidence Also Required to Sell Personal Residence
SB 303 raises the bar with respect to the sale of the current or former personal residence of conservatees.
A conservator of the estate of a conservatee generally has broad powers to manage the financial affairs of the conservatee. Prior law imposed restrictions on the sale of the conservatee’s residence and SB 303 doubles down on those restrictions.
As amended by SB 303, Probate Code section 2540 generally requires a conservator to notify the court of a sale of a present or former residence before the conservator commits “any significant resources” to the proposed sale and compels the conservator to provide the court with additional information about the sale. New Probate Code section 2541.5 allows the sale of a conservatee’s present or former personal residence only if the court finds by clear and convincing evidence that the conservator demonstrated a compelling need to sell the residence for the benefit of the conservatee.
Probate Code sections 2591 and 2591.5 permit a court to empower a conservator to sell the personal residence of a conservatee. SB 303 tightens up the circumstances under which such “independent power” may be granted by no longer authorizing the court to waive statutory requirements.
Competing Policy Arguments
While SB 303 passed unanimously in the Legislature in 2019, the record reveals a clash of policy concerns.
SB 303’s author, Senator Bob Wieckowski, stated that “SB 303 would provide further protections for two of a conservatee’s essential assets, their benefits and their residence, from being used or sold to compensate their conservator or their conservator’s attorney fees.”
The Coalition for Elder & Disability Rights, which sponsored the bill, contended that conservatorship “is the only profession that grants a service provider unfettered access to client assets. Conservators use client assets to fund litigation against the client and against the client’s family. Multi-million-dollar estates are depleted by legal fees, while conservatees languish in substandard care facilities.”
Disability Rights California asserted: “A person’s home often represents a lifetime of sacrifice and a place of security. It is also the place where a person should be able to live in the least restrictive environment in their community and not in an institution. The disposition of one’s home can forever relegate a person to confinement in an institution, for if there is no home to return to, there is often only institutional care. For that reason, the determination to sell a conservatee’s home should be held to the highest standard.”
The Judicial Council cautioned that SB 303 “tilts the balance away from the court appointed conservator” to another person who does not owe fiduciary duties to the conservatee, such as a family member with interests that may conflict with those of the conservatee. “Maybe their interest is in preserving the value of the estate so there will be an inheritance. Maybe their interest in keeping the home in the estate is so they can live there. Under SB 303, it becomes far too easy for that someone, if the conservatee mentions wanting to go home or not wanting to move, to make that statement the overriding interest ‘on behalf of the conservatee.’”
The Judicial Council expressed concern that SB 303 “will almost certainly increase the number of conservatees who remain in inappropriate, potentially unsafe homes. These conservatees would face precisely the risks to their health, safety, and welfare that the appointment of a conservator was intended to mitigate in the first place.”
The Judicial Council also raised an efficiency issue: “Increasing the procedural obstacles to the sale of a conservatee’s personal residence, as SB 303 would, is likely to make the sale take longer and cost more. When that conservatee can no longer live safely in that home and needs the proceeds of the sale to provide for their comfortable and suitable support and maintenance in an appropriate residence, procedural delays would place the conservatee’s physical welfare at unnecessary risk.”
Whether SB 303 strikes the right balance between these policy considerations will be hard to measure in the aggregate given the unique factual situation of each conservatorship.
Jeffrey Galvin is an attorney with Downey Brand LLP, based in Sacramento. He litigates trust and estate cases in Northern California, including disputes involving trust and probate administration, contests of trusts and wills, and financial elder abuse claims.