Trusts and Estates
Ca. Trs. & Estates Quarterly 2023, VOLUME 29, ISSUE 1
Content
- Capacity and Susceptibility To Undue Influence: a Neuropsychiatrist's Perspective
- Chairs of Section Subcommittees
- Editorial Board
- Letter From the Chair
- Letter From the Editor
- Litigation Alert
- McLe Self-study Article 2022 Legislation: New Laws That Trust and Estate Practitioners Should Know
- McLe Self-study Article Elusive Lucidities: Eyford V. Nord and California's Delusion Doctrine
- Pipe Dreams Can Come True: Gifting Opportunities 2023 and Onward
- Tax Alert
- Tips of the Trade You Don't Always Need a Formal Appraisal
- MCLE SELF-STUDY ARTICLE ASSEMBLY BILL 1663 "PROTECTIVE PROCEEDINGS": LESS-RESTRICTIVE ALTERNATIVES TO CONSERVATORSHIP
MCLE SELF-STUDY ARTICLE ASSEMBLY BILL 1663 "PROTECTIVE PROCEEDINGS": LESS-RESTRICTIVE ALTERNATIVES TO CONSERVATORSHIP
Written by Klaus Gottlieb, Esq.*
I. SYNOPSIS
Assembly Bill No. 1663 (2021-2022 Reg. Sess.) (A.B. 1663), "Protective Proceedings," is new legislation that became effective January 1, 2023. It makes multiple important amendments to the Probate Code and the Welfare and Institutions Code. California joins an increasing number of states that have made less-restrictive alternatives to conservatorship a legislative priority. Supported decision-making (SDM) is one of them. The idea is that adults with a disability, which could include dementia, retain their autonomy and make their own decisions, albeit with support. SDM can be informal or memorialized in an SDM agreement. California had the benefit of not needing to start from scratch and, indeed, many of the provisions of the new law accord with those in the 2017 Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA).
Still, a critical reading of A.B. 1663 reveals some areas that raise questions. For example, if the SDM agreement can be revoked anytime, even orally, without formality, are these agreements too fragile? Should supporters have an expressly fiduciary relationship with the supported adult with a disability? Will supporters receive compensation? Should they? Are third parties required to honor an SDM agreement? If not, what incentives are there to do so? Is there limited immunity for good-faith reliance? Will the envisioned Conservatorship Alternatives Program get funded? Is it a bit like a legal clinic? Should effective data collection have been a provision in the bill? These and other issues are addressed in this article.