SECTIONS 2400-2410 - California Statutes

PROBATE CODE

SECTION 2400-2410

2400. As used in this chapter:
(a) "Conservator" means the conservator of the estate, or the
limited conservator of the estate to the extent that the powers and
duties of the limited conservator are specifically and expressly
provided by the order appointing the limited conservator.
(b) "Estate" means all of the conservatee's or ward's personal
property, wherever located, and real property located in this state.
(c) "Guardian" means the guardian of the estate.

2401. (a) The guardian or conservator, or limited conservator to
the extent specifically and expressly provided in the appointing
court's order, has the management and control of the estate and, in
managing and controlling the estate, shall use ordinary care and
diligence. What constitutes use of ordinary care and diligence is
determined by all the circumstances of the particular estate.
(b) The guardian or conservator:
(1) Shall exercise a power to the extent that ordinary care and
diligence requires that the power be exercised.
(2) Shall not exercise a power to the extent that ordinary care
and diligence requires that the power not be exercised.
(c) Notwithstanding any other law, a guardian or conservator who
is not a trust company, in exercising his or her powers, may not hire
or refer any business to an entity in which he or she has a
financial interest except upon authorization of the court. Prior to
authorization from the court, the guardian or conservator shall
disclose to the court in writing his or her financial interest in the
entity. For the purposes of this subdivision, "financial interest"
shall mean (1) an ownership interest in a sole proprietorship, a
partnership, or a closely held corporation, or (2) an ownership
interest of greater than 1 percent of the outstanding shares in a
publicly held corporation, or (3) being an officer or a director of a
corporation.
(d) Notwithstanding any other law, a guardian or conservator who
is a trust company, in exercising its powers may not, except upon
authorization of the court, invest in securities of the trust company
or an affiliate or subsidiary, or other securities from which the
trust company or affiliate or subsidiary receives a financial benefit
or in a mutual fund, other than a mutual fund authorized in
paragraph (5) of subdivision (a) of Section 2574, registered under
the Investment Company Act of 1940 (Subchapter 1 (commencing with
Sec. 80a-1) of Chapter 2D of Title 15 of the United States Code), to
which the trust company or its affiliate provides services,
including, but not limited to, services as an investment adviser,
sponsor, distributor, custodian, agent, registrar, administrator,
servicer, or manager, and for which the trust company or its
affiliate receives compensation.
Prior to authorization from the court, the guardian or conservator
shall disclose to the court in writing the trust company's financial
interest.

2401.1. The guardian or conservator shall use ordinary care and
diligence to determine whether the ward or conservatee owns real
property in a foreign jurisdiction and to preserve and protect that
property. What constitutes use of ordinary care and diligence shall
be determined by all the facts and circumstances known, or that
become known, to the guardian or conservator, the value of the real
property located in the foreign jurisdiction, and the needs of the
ward or conservatee. The guardian or conservator, except as provided
in subdivision (a) of Section 1061 and in Section 1062, is not
charged with, and shall have no duty to inventory or account for the
real property located in a foreign jurisdiction, but the guardian or
conservator shall, when presenting the inventory and appraisal and
accounting to the court, include the schedule set forth in
subdivision (h) of Section 1063.

2401.3. (a) If the guardian or conservator breaches a fiduciary
duty, the guardian or conservator is chargeable with any of the
following that is appropriate under the circumstances:
(1) Any loss or depreciation in value of the estate resulting from
the breach of duty, with interest.
(2) Any profit made by the guardian or conservator through the
breach of duty, with interest.
(3) Any profit that would have accrued to the estate if the loss
of profit is the result of the breach of duty.
(b) If the guardian or conservator has acted reasonably and in
good faith under the circumstances as known to the guardian or
conservator, the court, in its discretion, may excuse the guardian or
conservator in whole or in part from liability under subdivision (a)
if it would be equitable to do so.

2401.5. (a) If the guardian or conservator is liable for interest
pursuant to Section 2401.3, the guardian or conservator is liable for
the greater of the following amounts:
(1) The amount of interest that accrues at the legal rate on
judgments.
(2) The amount of interest actually received.
(b) If the guardian or conservator has acted reasonably and in
good faith under the circumstances as known to the guardian or
conservator, the court, in its discretion, may excuse the guardian or
conservator in whole or in part from liability under subdivision (a)
if it would be equitable to do so.

2401.6. Any surcharge that a guardian or conservator incurs under
the provisions of Sections 2401.3 or 2401.5 may not be paid by or
offset against future fees or wages to be provided by the estate to
the guardian or conservator.

2401.7. The provisions of Sections 2401.3 and 2401.5 for liability
of a guardian or conservator for breach of a fiduciary duty do not
prevent resort to any other remedy available against the guardian or
conservator under the statutory or common law.

2402. When a guardian or conservator is appointed, the court may,
with the consent of the guardian or conservator, insert in the order
of appointment conditions not otherwise obligatory providing for the
care and custody of the property of the ward or conservatee. Any such
conditions shall be included in the letters. The performance of such
conditions is a part of the duties of the guardian or conservator
for the faithful performance of which the guardian or conservator and
the sureties on the bond are responsible.

2403. (a) Upon petition of the guardian or conservator, the ward or
conservatee, a creditor, or other interested person, the court may
authorize and instruct the guardian or conservator, or approve and
confirm the acts of the guardian or conservator, in the
administration, management, investment, disposition, care,
protection, operation, or preservation of the estate, or the
incurring or payment of costs, fees, or expenses in connection
therewith.
(b) Notice of the hearing on the petition shall be given for the
period and in the manner provided in Chapter 3 (commencing with
Section 1460) of Part 1.
(c) (1) When a guardian or conservator petitions for the approval
of a purchase, lease, or rental of real or personal property from the
estate of a ward or conservatee, the guardian or conservator shall
provide a statement disclosing the family or affiliate relationship
between the guardian and conservator and the purchaser, lessee, or
renter of the property, and the family or affiliate relationship
between the guardian or conservator and any agent hired by the
guardian or conservator.
(2) For the purposes of this subdivision, "family" means a person'
s spouse, domestic partner, or relatives within the second degree of
lineal or collateral consanguinity of a person or a person's spouse.
For the purposes of this subdivision, "affiliate" means an entity
that is under the direct control, indirect control, or common control
of the guardian or conservator.
(3) A violation of this section shall result in the rescission of
the purchase, lease, or rental of the property. Any losses incurred
by the estate of the ward or conservatee because the property was
sold or leased at less than fair market value shall be deemed as
charges against the guardian or conservator under the provisions of
Sections 2401.3 and 2401.5. The court shall assess a civil penalty
equal to three times the charges against the guardian, conservator,
or other person in violation of this section, and may assess punitive
damages as it deems proper. If the estate does not incur losses as a
result of the violation, the court shall order the guardian,
conservator, or other person in violation of this section to pay a
fine of up to five thousand dollars ($5,000) for each violation. The
fines and penalties provided in this section are in addition to any
other rights and remedies provided by law.

2404. (a) If the guardian or conservator fails, neglects, or
refuses to furnish comfortable and suitable support, maintenance, or
education for the ward or conservatee as required by this division,
or to pay a debt, expense, or charge lawfully due and payable by the
ward or conservatee or the estate as provided in this division, the
court shall, upon petition or upon its own motion, order the guardian
or conservator to do so from the estate.
(b) The petition may be filed by the ward or conservatee or by the
creditor or any other interested person. Notice of the hearing on
the petition shall be given for the period and in the manner provided
in Chapter 3 (commencing with Section 1460) of Part 1.

2405. If there is a dispute relating to the estate between the
guardian or conservator and a third person, the guardian or
conservator, or the limited conservator to the extent specifically
and expressly provided in the order appointing the limited
conservator, may do either of the following:
(a) Enter into an agreement in writing with the third person to
refer the dispute to a temporary judge designated in the agreement.
The agreement shall be filed with the clerk, who shall thereupon,
with the approval of the court, enter an order referring the matter
to the designated person. The temporary judge shall proceed promptly
to hear and determine the matter in controversy by summary procedure,
without any pleadings, discovery, or jury trial. The decision of the
temporary judge is subject to Section 632 of the Code of Civil
Procedure. Judgment shall be entered on the decision and is as valid
and effective as if rendered by a judge of the court in an action
against the guardian or conservator or the third person commenced by
ordinary process.
(b) Enter into an agreement in writing with the third person that
a judge of the court, pursuant to the agreement and with the written
consent of the judge, both filed with the clerk within the time for
bringing an independent action on the matter in dispute, may hear and
determine the dispute pursuant to the procedure provided in
subdivision (a).

2406. If there is a dispute relating to the estate between the
guardian or conservator and a third person, the guardian or
conservator may enter into an agreement in writing with the third
person to submit the dispute to arbitration under Title 9 (commencing
with Section 1280) of Part 3 of the Code of Civil Procedure. The
agreement is not effective unless it has first been approved by the
court and a copy of the approved agreement is filed with the court.

2407. This chapter applies to property owned by husband and wife as
community property only to the extent authorized by Part 6
(commencing with Section 3000).

2408. Nothing in this chapter limits or restricts any authority
granted to a guardian or conservator pursuant to Article 11
(commencing with Section 2590) to administer the estate under that
article.

2410. On or before January 1, 2008, the Judicial Council, in
consultation with the California Judges Association, the California
Association of Superior Court Investigators, the California State
Association of Public Administrators, Public Guardians, and Public
Conservators, the State Bar of California, the National Guardianship
Association, and the Association of Professional Geriatric Care
Managers, shall adopt a rule of court that shall require uniform
standards of conduct for actions that conservators and guardians may
take under this chapter on behalf of conservatees and wards to ensure
that the estate of conservatees or wards are maintained and
conserved as appropriate and to prevent risk of loss or harm to the
conservatees or wards. This rule shall include at a minimum standards
for determining the fees that may be charged to conservatees or
wards and standards for asset management.