SECTIONS 2952-2955 - California Statutes

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
My name is:
_______________________________________________
____.
My badge number is:
_______________________________________________
____.
1. -----------------------------------------------
My office address and telephone number
are:
_______________________________________________
____
_______________________________________________
____
_______________________________________________
____.
I am a duly sworn peace officer presently
employed by
2. _______________________________________________
________________________________, in the County
of---------------------------------------------
__________________, in the State of California.
On __ (date) I personally interviewed ____
(victim) at
____ a.m./p.m. at _____ (address). The victim
3. resides
at _____ (address, telephone number, and name
of facility,
if applicable).
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,
4. 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
BLOCKS THAT APPLY:
(A) ALERTNESS AND ATTENTION
Levels of arousal. (Lethargic,
( ) 1. responds only to vigorous
and persistent stimulation, stupor.)
Orientation. Person ___ Time ____
(day, date,
( ) 2. month, season, year), Place ____
(address, town,
state), Situation ________ (why am I
here?).
Ability to attend and concentrate.
(Give detailed
( ) 3. answers from memory, mental ability
required to
thread a needle.)
INFORMATION PROCESSING
(B)
Ability to:
Remember, i.e., short- and long-term
memory,
immediate recall. (Deficits reflected
by: forgets
( ) 1.
question before answering, cannot
recall names,
relatives, past presidents, events of
past 24 hours.)
Understand and communicate either
verbally or
otherwise. (Deficits reflected by:
inability to
( ) 2.
comprehend questions, follow
instructions, use words
correctly or name objects; nonsense
words.)
Recognize familiar objects and persons.
(Deficits
( ) 3. reflected by: inability to recognize
familiar faces,
objects, etc.)
Understand and appreciate quantities.
( ) 4. (Perform simple
calculations.)
Reason using abstract concepts. (Grasp
abstract aspects
( ) 5. of his or her situation; interpret
idiomatic expressions or
proverbs.)
Plan, organize, and carry out actions
(assuming physical
ability) in one's own rational self-
( ) 6. interest. (Break
complex tasks down into simple steps
and carry them
out.)
( ) 7. Reason logically.
(C) THOUGHT DISORDERS
Severely disorganized thinking.
(Rambling,
( ) 1.
nonsensical, incoherent, or nonlinear
thinking.)
( ) 2. Hallucinations. (Auditory, visual,
olfactory.)
Delusions. (Demonstrably false belief
( ) 3. maintained
without or against reason or evidence.)
Uncontrollable or intrusive thoughts.
(Unwanted
( ) 4.
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
The property at risk is identified as, but not
5. 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:_____________________
A criminal investigation will ( ) will not( )
6. 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.
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,
( ) 2.
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.
I have consulted concerning this case
with an individual
( ) 3.
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.