Legislative Projects

Probate Court’s Duty To Give a Probate Conservator The Authority to Consent to Mental Health Treatment for Severely Mentally Ill Conservatees. 





Survey To Determine How Well the Courts Are Serving People Who Are Not Affluent.

[To be funded by charitable contributions]  

The Second District Court of Appeal said that fact-finding by the Legislature is necessary in order to determine whether Probate Courts should change their practices


"Unlike the courts, the Legislature has the capacity to conduct the kind of fact finding required to determine the degree to which fee awards throughout state may have undermined the representation of less-than-affluent elders.  And it is only through the legislative process that the policy determinations derived from such fact finding may ultimately be implemented."


A survey would enable the Legislature and the Courts to make informed decisions about what is or is not needed.  Many advocates for elders assert that Probate judges reduce their calendar workload, by weeding out the small cases, through the practice of imposing impractical limits on Conservator's fees, attorneys fees, and trustee fees.  If that is true, elder abuse victims are deprived of the law's protection by the very courts charged with the duty to protect them. 

    The survey should be coordinated with a consolidated database (to be created under a separate Bill) of all elder and dependent adult abuse cases, including inter alia APS, Ombudsman, DHS (e.g., nursing home citations), DSS (e.g., board and care citations), law enforcement (agencies and criminal cases), civil cases (conservatorships, lawsuits). 

     Armed with information from such surveys (if repeated every 5 or 10 years) and the consolidated database, the Legislature would be better informed and more able to make good decisions about what needs to be done, and what the effect of past legislation has been.



Affidavits of Judicial Prejudice; Random Assignments - When a lawyer or his/her attorney files an Affidavit of Prejudice (CCP §170.6) against a judge, requiring the reassignment of the case to another judge, the law should require the local court to make a random assignment, and to maintain records available to the public showing that the re-assignments were indeed random.  The manner of assignment and its random character should be public knowledge, so that confidence in the integrity of the judicial system is preserved.  In some counties, when a party Affidavits a judge whom no one wants, the party gets shunted to another judge whom everyone Affidavits, because the latter judge's calendar is wide open.  It should be possible for voters to ascertain which judges were Affidavitted, and how frequently, in order to investigate why this happens, and to be informed when the voter casts his/her ballot. 


Affidavits of Judicial Prejudice; Web site  - When a lawyer or his/her attorney files an Affidavit of Prejudice (CCP §170.6) against a judge, requiring the reassignment of the case to another judge, the Affidavit should be posted on a web site where the public could see which judges are frequently rejected because they are perceived to be unfair.  Interested persons could then review the files, which are open to the public, and decide for themselves if there is a basis for those Affidavits.   Those judges who behave in an intemperate manner because they can get away with it, would be less likely to do so, if the light of day were to shine upon it during re-election campaigns.  A nominal charge of $5 (or thereabouts) for filing Affidavits would be sufficient to fund this.


Annulling predatory marriages to abuse incompetent victims -  It is becoming increasingly standard practice for relatively young men and women to marry incompetent dementia victims, for the purpose of acquiring the victim's estate.  Typically, after the marriage, the perpetrator will isolate the victim from family and friends, get new estate planning documents (trusts, wills, durable powers of attorney and of course, Advance Health Care Directives ("Let him die in peace") ), and thereafter hasten the victim's death.  "He didn't want to take all those medications.  He had the right to make that choice!"


Attorneys Should Not Be Relieved of The Duty to Investigate an Obviously Mentally Impaired Client's Competence - Attorneys should have as much duty to take cognizance of a client's obvious incompetence, as anyone else selling goods and services.  A recent court decision, ruling that a lawyer has no duty to ascertain his/her client's competence, will facilitate abuse by the bad-apple lawyers and by the victimizers who get those lawyers to draft new wills for the victims, before the victimizers "allow" the victims to die of "natural" causes.


Authority Of The Judge To Appoint Additional Counsel For A Proposed Conservatee Where The Judge Believes That There Is A Serious Question Whether The Proposed Conservatee Lacks The Capacity To Hire Counsel


Business & Professions Code Section 6125 amendment - Access to the Courts for the modest estate trustee or agent under a durable power of attorney.  This proposal would authorize Courts to permit conservators, trustees and agents (under durable powers of attorney) to represent themselves in lawsuits, if the Court determines that they lack the funds to hire an attorney, and there is no other viable option.  Currently, the Court must prevent the trustee from representing himself even if the claim seems valid and the statute of limitations is running, and the claim will be lost for lack of representation.


Fees and Costs under the Elder Abuse and Dependent Adult Civil Protection Act - .......[Under construction]


Forensic testimony; Fraudulent or Reckless - Licensure sanctions for reckless or fraudulent testimony.   A psychiatrist, psychologist, lawyer, CPA or other professional who testifies giving an expert opinion, should be subject to professional sanctions where the opinion is - .......[Under construction]

Forensic Competence Assessments; Protocol - The credibility courts assign to assessments of competence should be consistent with modern neurobehavioral science's standards.


Probable cause hearings for the mentally ill - A probate conservator of the person should be [1] given notice of an LPS probable cause hearing, and should be [2] permitted to present evidence.


Major Legislation Enacted


Medi-Cal Separation of Assets to prevent nursing home impoverishment - 1984 Medi-Cal law drafted by Mr. Hankin

Elder Abuse and Dependent Adult Civil Protection Act - Medi-Cal law drafted by Mr. Hankin

The Due Process in Competence Determinations Act - Mental competence controversies  

Probate Code §259 (and §2583(m)) disinheriting victimizers

Probate Code §21350(a)(6) disinheriting victimizers

SB 1742 - Enabling Law Enforcement, Adult Protective Services and the Public Guardian to combat elder abuse together, before the horse is out of the barn


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