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There's No Place Like Home - Heightened Evidentiary Standard for Moving Conservatees from Their Personal Residence

November 12 2019

 

By Carlena L. Tapella
Trusts & Estates Law Blog

Frequently when a conservatorship proceeding is commenced, the proposed conservatee is residing in his or her personal residence. Having a conservatorship established can be a distressing experience for a conservatee who has awareness of the effect of such a proceeding. One primary concern may be whether there is going to be a change to living arrangements with which the conservatee has been familiar, sometimes for decades. Naturally, it is commonplace for a conservatee to express that they “don’t want to go to a care home.” In recognition of the need to affirmatively preserve the right of conservatees to remain in their own personal residence, the California Legislature passed an amendment to existing law which applies a higher evidentiary standard before a conservator may move a conservatee from his or her personal residence.

Living in the Personal Residence. Under existing law, it is presumed that the personal residence of the conservatee at the time of the commencement of the conservatorship is the least restrictive appropriate residence for the conservatee. That presumption may be overcome by a preponderance of the evidence. As of January 1, 2020, the presumption that the personal residence of the conservatee at the time of the commencement of the conservatorship is the least restrictive appropriate residence for the conservatee may be overcome only on a showing of clear and convincing evidence, which is a higher standard.

Within 60 days of appointment, a conservator is to determine the appropriate level of care for the conservatee and to file a report regarding such determination. Indeed, if the conservatee is not residing in his or her personal residence at the time of the commencement of the conservatorship proceeding, the determination must include a plan for either returning the conservatee to the personal residence, or an explanation as to the reasons why that cannot be accomplished.

Given the heightened evidentiary standard, conservators are going to have to conduct a thorough investigation of all options available to the conservatee with the goal being to maintain the conservatee in his or her personal residence. Naturally, there may be obstacles to that goal, including, the expense of in-home care providers, should that be required to properly care for the conservatee. A conservator must be familiar with, and adhere to, California wage and hour laws pertaining to the payment of such care providers. Also, claims of in-home care being “too expensive” may not be sufficient if the conservatee’s financial situation would allow for the expense. Certainly, a conservator should avoid any attempt to move a conservatee from his or her residence if the concern is one that the assets of the conservatee should be preserved for the benefit of the conservatee’s successors upon death.

Sale of the Personal Residence: In addition to heightening the evidentiary standard for moving the conservatee from their residence, the Legislature also has amended the statute relating to any proposed sale of the conservatee’s personal residence. Also, the court has eliminated the exception applying to sales of real property when the conservator has been granted independent powers under Probate Code sections 2590, et seq.

Under the newly enacted law, a conservator may not commit any significant resources to the proposed sale of the conservatee’s residence unless the conservator can establish that the conservatee either has the capacity to consent to the sale, and unequivocally consents to such sale, or there are exigent circumstances that require the conservator to commit resources to the sale prior to court approval. Clearly, the use of the terms “unequivocally” and “exigent” are strong indicators that the court will require specific and detailed facts affirmatively demonstrating non-opposition of the conservatee to the sale, or compelling facts requiring sale of the conservatee’s residence.

A conservator must be sensitive to the emotional ties many conservatees have to their personal residence. There are cherished memories to be found there, along with familiar surroundings, and continuity of the conservatee’s lifestyle prior to the establishment of the conservatorship. The changes in the statute should not be looked upon as hurdles in the conservator’s duties to the conservatee, but rather as an opportunity to ensure that the conservatee is allowed to remain in their residence, and that the conservator has thoroughly investigated all alternatives before taking steps to move the conservatee from his or her home.

 

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For more writing on estate planning, probate & trust administration, and estate & gift taxation, as well as trust, probate, conservatorship and elder abuse litigation, visit the Trusts and Estates Law Blog.