Cal. Probate Code § 2952 : California Probate Code — Guardianship, Conservatorship, And Other Protective Proceedings — Financial Abuse Of Mentally Impaired Elders — Estate Protection — Issuance of declaration by peace officer; certificate of authority entitling public guardian to take possession

Current through the 2016 Legislative Session

(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.

Ca. Prob. Code § 2952

Added by Stats 2000 ch 813 (SB 1742), s 1, eff. 1/1/01.

Amended by Stats 2001 ch 232 (AB 1517), s 3, eff. 1/1/2002.