Trusts and Estates

Ca. Trs. & Estates Quarterly 2023, VOLUME 29, ISSUE 1


Written by Klaus Gottlieb, Esq.*


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.

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