Tuesday, June 23, 2009

CALIFORNIA CODES-PROBATE CODE SECTION 2952-2955

CALIFORNIA CODES
PROBATE CODE
SECTION 2952-2955


2952. (a) A peace officer may issue a declaration, as provided in
Section 2954, concerning an elder person if all of the following
conditions are satisfied:
(1) There is probable cause to believe that the elder person is
substantially unable to manage his or her financial resources or to
resist fraud or undue influence.
(2) There exists a significant danger that the elder person will
lose all or a portion of his or her property as a result of fraud or
misrepresentations or the mental incapacity of the elder person.
(3) There is probable cause to believe that a crime is being
committed against the elder person.
(4) The crime is connected to the inability of the elder person to
manage his or her financial resources or to resist fraud or undue
influence, and that inability is the result of deficits in the elder
person's mental functions.
(5) The peace officer has consulted with an individual qualified
to perform a mental status examination.
(b) If the requirements of subdivision (a) are satisfied, the
peace officer may provide a signed declaration to the public guardian
of the county. The declaration provided by the peace officer under
this subdivision shall be signed by both the peace officer and a
supervisor from the county's adult protective services agency. The
declaration shall be transmitted to the public guardian within 24
hours of its being signed, and may be transmitted by facsimile.
(c) (1) Upon receiving a signed declaration from a peace officer,
the public guardian is authorized to rely on the information
contained in the declaration to take immediate possession or control
of any real or personal property belonging to the elder person
referred to in the declaration, including any property that is held
jointly between the elder person and a third party that is subject to
loss, injury, waste, or misappropriation, and may issue a written
recordable certification of that fact pursuant to this section. The
written recordable certification shall substantially comply with the
following form:
"CERTIFICATE OF AUTHORITY
THIS IS AN OFFICIAL CERTIFICATE ENTITLING THE PUBLIC GUARDIAN
TO TAKE POSSESSION OF ANY AND ALL PROPERTY BELONGING TO THE FOLLOWING
INDIVIDUAL:
(Name of Victim) _____________
This Certificate of Authority has been issued by the Public
Guardian pursuant to and in compliance with the Financial Abuse of
Mentally Impaired Elders statute, Chapter 4 (commencing with Section
2950) of Part 5 of Division 4 of the California Probate Code. Under
California law, this Certificate of Authority authorizes the Public
Guardian to take possession or control of property belonging to the
above-named individual.
SPECIAL NOTE TO FINANCIAL INSTITUTIONS: State law requires that
upon receiving a copy of this Certificate of Authority, financial
institutions shall provide the public guardian with information
concerning property held by the above-named individual and surrender
the property to the Public Guardian if requested.
This Certificate of Authority shall only be valid when signed and
dated by the Public Guardian or a deputy Public Guardian of the
County of _____ and affixed with the official seal of the Public
Guardian below.
Signature of Public Guardian: Date: Official Seal"
(2) The mere issuance of the declaration provided by this section
shall not require the public guardian to take possession or control
of property and shall not require the public guardian to make a
determination that the requirements for the appointment of a
conservator are satisfied.
(3) The authority provided to the public guardian in paragraph (1)
includes the authority to deny use of, access to, or prohibit
residency in the home of the elder, by anyone who does not have a
written rental agreement or other legal right to the use of, or
access to, the residence, and, subject to the requirements of
subdivision (b) of Section 2900, the authority to terminate the
occupancy of anyone living in the home of the elder person, and the
authority to remove that occupant residing therein.
(4) The public guardian shall serve, or cause to be served, a copy
of the certification issued pursuant to this section on the elder
person by mail within 24 hours of the execution of the certification,
or as soon thereafter as is practical, in the manner provided in
Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of
the Code of Civil Procedure.
(5) Receipt of a certification issued under this section
constitutes sufficient acquittance to financial institutions and
others in possession of an elder person's property to provide
information and surrender property of the elder person to the public
guardian. Any financial institution or other person who provides
information or surrenders property pursuant to this section shall be
discharged from any liability for any act or omission of the public
guardian with respect to the property.
(6) A public guardian acting in good faith is not liable when
taking possession or control of property pursuant to this section.
(7) A certification issued pursuant to this section is valid for
15 days after the date of issuance. Upon ex parte petition to the
superior court, the public guardian may seek additional 15-day
certifications. The court shall grant that petition only if it
determines that the additional certification is necessary to protect
the elder from financial abuse and the elder's property from loss,
injury, waste, or misappropriation.
(d) (1) If the public guardian takes possession of an elder person'
s property pursuant to this section, the public guardian shall
attempt to find agents pursuant to the use of durable powers of
attorney or successor trustees nominated in trust instruments, or
other persons having legal authority under existing legal
instruments, to manage the elder person's estate.
(2) If the public guardian is unable to find any appropriate
person to manage the elder person's estate pursuant to paragraph (1),
the public guardian shall attempt to find appropriate family members
willing to manage the elder person's estate. If no documents exist
appointing appropriate fiduciaries, the public guardian shall follow
the priorities set forth in Article 2 (commencing with Section 1810)
of Chapter 1 of Part 3.
(3) The public guardian shall take the steps described in
paragraphs (1) and (2) within 15 days of taking possession of an
elder person's property pursuant to this section.
(e) Nothing in this section prevents the county's adult protective
services agency from conducting an investigation regarding the elder
person named in the declaration and providing appropriate services,
in coordination with any actions taken with the public guardian under
this section or an investigation conducted by law enforcement
regarding the elder person.
2953. (a) (1) A public guardian who has taken possession or control
of the property of an elder person pursuant to this chapter is
entitled to petition a court of competent jurisdiction for the
reasonable costs incurred by the public guardian for the protection
of the person or the property, together with reasonable fees for
services, including, but not limited to, reasonable attorneys' fees.
These fees shall be payable from the estate of the elder person if
the person is not deemed competent by the court and if any of the
following apply:
(A) The public guardian or someone else is appointed as the
temporary or general conservator of the estate.
(B) An attorney-in-fact, under a durable power of attorney, or a
trustee, takes steps, or is notified of the need to take steps, to
protect the estate of the elder person.
(C) An action is brought against the alleged financial abuser by
the elder person, his or her conservator, a trustee, a fiduciary, or
a successor in interest of the elder person, arising from a harm that
the public guardian taking charge was intended to prevent or
minimize.
(2) Any costs incurred by the public guardian pursuant to
paragraph (1) shall be compensable as provided in Section 2902. Fees
collected by the public guardian pursuant to this chapter shall be
used for the activities described in this chapter.
(b) When a public guardian has taken possession or control of the
property of an elder person pursuant to this chapter, the public
guardian shall exercise reasonable care to ensure that the reasonable
living expenses and legitimate debts of the elder person are
addressed as well as is practical under the circumstances.
(c) Any person identified as a victim in a declaration described
in Section 2954 may bring an ex parte petition in the superior court
for an order quashing the certification issued by the public guardian
as provided in subdivision (c) of Section 2952.
(1) Upon request by the petitioner, the court may defer filing
fees related to the petition, and order the public guardian to
authorize the release of funds from a financial institution to
reimburse the petitioner the filing fees from assets belonging to the
petitioner, but shall waive filing fees if the petitioner meets the
standards of eligibility established by subparagraph (A) or (B) of
paragraph (6) of subdivision (a) of Section 68511.3 of the Government
Code for the waiver of a filing fee.
(2) The court shall quash the certification if the court
determines that there is insufficient evidence to justify the
imposition on the alleged victim's civil liberties caused by the
certification.
(3) If the court determines that there is sufficient evidence to
justify the imposition on the alleged victim's civil liberties caused
by the certification, the court may, in its discretion, do one or
more of the following:
(A) Order disbursements from the alleged victim's assets, as are
reasonably needed to address the alleged victim's needs.
(B) Appoint a temporary conservator of the alleged victim's
estate, where the facts before the court would be sufficient for the
appointment of a temporary conservator under Section 2250.
(C) Deny the petition.
(D) Award reasonable attorney's fees to the respondent's attorney
from the victim's estate.
2954. A declaration issued by a peace officer under this chapter
shall not be valid unless it substantially complies with the
following form:
DECLARATION
PRINT OR TYPE
1. My name is:
_____________________________________________________.
My badge number is:
_____________________________________________.
My office address and telephone number are:
__________________________________________________________________
__________________________________________________________________
_______________________________________________________________.
2. I am a duly sworn peace officer presently employed by
____________
______________________________, in the County of _____________,
in
the State of California.
3. On ________ (date) I personally interviewed ______________
(victim)
at _____ a.m./p.m. at ________________ (address). The victim
resides at ___________________ (address, telephone number, and
name
of facility, if applicable).
4. There is probable cause to believe that:
(a) ________________________________________________ (Victim)
is substantially unable to manage his or her financial
resources or to resist fraud or undue influence, and
(b) There exists a significant danger the victim will lose all
or
a portion of his or her property as a result of fraud or
misrepresentations or the mental incapacity of the victim, and
(c) There is probable cause to believe that a crime is being
committed against the victim, and
(d) The crime is connected to the victim's inability to manage
his or her financial resources or to resist fraud or undue
influence, and
(e) The victim suffers from that inability as a result of
deficits
in one or more of the following mental functions:
INSTRUCTIONS TO PEACE OFFICER: CHECK ALL BOXES THAT APPLY:
A( ALERTNESS AND ATTENTION
( 1. Levels of arousal. (Lethargic, responds only to
vigorous
and persistent stimulation, stupor.)
( 2. Orientation. Person ____ Time ____ (day, date, month,
season, year), Place ____ (address, town, state),
Situation ____ (why am I here?).
( 3. Ability to attend and concentrate. (Give detailed
answers
from memory, mental ability required to thread a
needle.)
B( INFORMATION PROCESSING
Ability to:
( 1. Remember, i.e., short- and long-term memory, immediate
recall. (Deficits reflected by: forgets question
before
answering, cannot recall names, relatives, past
presidents,
events of past 24 hours.)
( 2. Understand and communicate either verbally or otherwise.
(Deficits reflected by: inability to comprehend
questions,
follow instructions, use words correctly or name
objects;
nonsense words.)
( 3. Recognize familiar objects and persons. (Deficits
reflected
by: inability to recognize familiar faces, objects,
etc.)
( 4. Understand and appreciate quantities. (Perform simple
calculations.)
( 5. Reason using abstract concepts. (Grasp abstract aspects
of
his or her situation; interpret idiomatic expressions or
proverbs.)
( 6. Plan, organize, and carry out actions (assuming physical
ability) in one's own rational self-interest. (Break
complex tasks down into simple steps and carry them
out.)
( 7. Reason logically.
C( THOUGHT DISORDERS
( 1. Severely disorganized thinking. (Rambling, nonsensical,
incoherent, or nonlinear thinking.)
( 2. Hallucinations. (Auditory, visual, olfactory.)
( 3. Delusions. (Demonstrably false belief maintained
without or
against reason or evidence.)
( 4. Uncontrollable or intrusive thoughts. (Unwanted
compulsive
thoughts, compulsive behavior.)
D( ABILITY TO MODULATE MOOD AND AFFECT
Pervasive and persistent or recurrent emotional state which
appears severely inappropriate in degree to the patient's
circumstances.
Encircle the inappropriate mood(s):
Anger Euphoria Helplessness
Anxiety Depression Apathy
Fear Hopelessness Indifference
Panic Despair
5. The property at risk is identified as, but not limited to, the
following:
Bank account located at:________________________________________
(name, telephone number, and address
of the bank branch)
Account number(s):______________________________________________
Securities/other funds located at:______________________________
(name, telephone number,
and address of
financial institution)
Account number(s):______________________________________________
Real property located at:_______________________________________
(address)
Automobile described as: _______________________________________
(make, model/color)
_______________________________________
(license plate number and state)
Other property described as:____________________________________
Other property located at:______________________________________
6. A criminal investigation will ( will not ( be commenced
against ________________________________________________________
(name, address, and telephone number)
for alleged financial abuse.
BLOCKS 1, 2, AND 3 MUST BE CHECKED IN ORDER
FOR THIS DECLARATION TO BE VALID:
( 1. I am a peace officer in the county
identified above.
( 2. I have consulted concerning this case with a supervisor
in the county's adult protective services agency who
has signed below, indicating that he or she concurs
that, based on the information I provided to him
or her, or based on information he or she obtained
independently, this declaration is warranted under
the circumstances.
( 3. I have consulted concerning this case with an
individual qualified to perform a mental status
examination.
_______________________________________________________
Signature of Declarant Peace Officer
_______________________________________________________
Date
_______________________________________________________
Signature of Concurring Adult Protective
Services Supervisor
2955. Nothing in this chapter shall prohibit or restrict a public
guardian from undertaking any other proceeding authorized by law.

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