Show Us the Money!
Business and Professions Code section 6563 taking effect as of January 1, 2023, fiduciaries with an internet presence are required to include their fee schedules on their website.
Business and Professions Code section 6563 taking effect as of January 1, 2023, fiduciaries without an internet presence are required to provide their fee schedules prior to being hired.
The fee schedule dissemination applies retroactively to all conservatorships and should be provided to all interested persons under the Probate Code.
Review Your Accountings Carefully!
Probate Code section 2620 provides that every guardianship and conservatorship accounting is subject to random or discretionary, full or partial review by the court. The review may include consideration of any information necessary to determine the accuracy of the accounting.
If the accounting has any material error, the court shall make an express finding as to the severity of the error and what further action is appropriate in response to the error, if any.
Among the actions available to the court is immediate suspension of the guardian or conservator without further notice or proceedings and appointment of a temporary guardian or conservator.
Be Wary of Time Spent for Unsuccessful Work
Probate Code section 2623 (b)(1) states that the court shall deny compensation for the costs or fees incurred by a guardian or conservator in unsuccessfully defending the fee request petition, opposing a petition, or any other unsuccessful request.
Probate Code section 2623 (b)(2) states that the court may reduce the costs or fees incurred by a guardian or conservator instead of denying them if the court determines that costs or fees incurred in unsuccessfully defending the fee request petition, opposing a petition, or any other unsuccessful request or action made by, or behalf of, the ward or conservatee was in good faith, based upon the best interest of the ward or conservatee, and did not harm the ward or conservatee.
It does not appear that the time expended can evade any fee reduction.
Abusers are Fined
Probate Code Section 112 provides that if a professional fiduciary conservator abuses a conservatee then there may be a fine of up to $10,000 for each instance of abuse payable to the estate of the conservatee.
Probate Code Section 112 provides that if it is a non-professional conservator then the fine will be up to $1,000 for each instance of abuse payable to the estate of the conservatee.
Fiduciary Bureau Has the Power
The Fiduciary Bureau is required to revoke a fiduciary license upon notification by the court that the court had removed a fiduciary for cause or been found to have breached a fiduciary duty.
Business and Professions Code section 6580 the Fiduciary Bureau may upon its own, and shall, upon the receipt of a complaint from any person, investigate the actions of a professional fiduciary, including, but not limited to, a license that is retired, inactive, canceled, or suspended.
Business and Professions Code section 6580 the Fiduciary Bureau shall investigate a professional fiduciary’s alleged violation of statute, regulation, or the Professional Fiduciaries Code of Ethics and any other complaint referred to it by the public, a public agency, or the department, and shall impose sanctions upon a finding of a violation.
Are More Changes Coming?
Probate Code section 1458 is requiring that on or before January 1, 2024, the Judicial Council shall report to the Legislature the findings of a study measuring court effectiveness in conservatorship cases, including the effectiveness of protecting the legal rights and best interests of a conservatee.
Among many things, the report shall include recommendations for statewide performance measures to be collected, best practices that serve to protect the legal rights of conservatees, and staffing needs to meet case processing requirements.
About the Author
Ms. Moghtaderi’s practice includes estate planning for generational wealth, fiduciary representation, trust and estate administration, inheritance litigation, probate, conservatorships, and elder law. Her clients include private fiduciaries, medical providers, IT professionals, as well as business owners, entrepreneurs, corporate institutions and philanthropists. She works with clients’ certified public accountants, financial planners, and other service providers to provide holistic solutions to clients’ needs and has advised high net worth individuals and families in estate planning and trust litigation involving over $100 million in assets.
This article is intended to be for informational purposes only. This information does not constitute legal advice. The law is constantly changing and the information may not be complete or correct depending on the date of the article and your particular legal problem. The use of information from this article does not create any type of attorney-client relationship.