Assembly Bill 1194 – How Will “Free Britney” Impact California Lawyers and Courts? | Brand Downey LLP


House Bill 1194, approved by Governor Newsom on September 30, 2021, strengthens the oversight of California restaurateurs, especially those licensed by the Professional Fiduciaries Bureau.

The bill expands the duties of California courts with respect to guardianship, although some reforms depend on funding in future legislation. With a projected budget surplus and strong public interest in Britney Spears’ tutelage, the legislature looks likely to fund the implementation of AB 1194 in 2022.

For the moment, which provisions of AB 1194 are of primary interest to lawyers of the Californian supervision? If given the opportunity to “release” a “Britney”, should a lawyer jump at the opportunity to “do something” or refuse a project that could become “toxic”? While readers may “Hold It Against Me,” the song titles “Sometimes” decorate our look at AB 1194.

“Every time” – Mandatory appointment of a lawyer for the curator

The current article 1471 of the Succession Code requires the appointment of a lawyer for an attorney or a proposed attorney only if the person is unable to have recourse to a lawyer and requests the appointment of a lawyer. Otherwise, the appointment is optional based on the court’s assessment of what is necessary to protect the interests of the registrar.

AB 1194 amends section 1471 to require the appointment of a lawyer in key guardianship proceedings, such as requests to establish or terminate a guardianship, appoint or remove a conservator, or remove a temporary curator from the domicile of that anybody.

The appointed lawyer can be a private lawyer or a public defender, with practice varying from county to county.

“My prerogative” – ​​The freedom to choose and advise directly

A main issue in Britney Spears’ “Circus” tutorship was whether she could choose her own lawyer to replace her court-appointed lawyer, Samuel D. Ingham III.

AB 1194 facilitates the freedom of choice by modifying article 1471 of the Code of successions. If a person subject to guardianship proceedings “expresses a preference for a particular lawyer to represent them, the court will allow representation by the preferred lawyer, even if the lawyer is not in office. the list of lawyers appointed by the court. At the same time, “a lawyer who cannot provide zealous advocacy or who has a conflict of interest” will be disqualified.

The law and practice of guardianship in force were unclear as to the role of the court-appointed lawyer, as indicated in a previous article. AB 1194 revises section 1471 of the Homologation Code and burns the fog. The bill clarifies that the role of a court-appointed lawyer “is that of a zealous and independent lawyer representing the wishes of his client, in accordance with the obligations set out in Section 6068 of the Business and Professions Code and the California Rules of Professional Conduct. “

With this clarification, lawyers should focus on leading the client, as best as possible, rather than advocating based on the lawyer’s perception of the client’s best interests. Therefore, if the client expresses a wish to avoid guardianship, the lawyer (after a frank discussion with the client) should resist the imposition of guardianship even if he personally thinks it may be appropriate.

“Scream & Shout” – Greater risk of non-payment for lawyers representing the Conservatives

Lawyers who represent the Tories can only be paid out of the Tory’s estate with the approval of the court, with the court having discretion to determine what compensation is “reasonable.” This means that lawyers can work for several months before receiving payment and cannot be sure that their fees will be fully paid.

By amendment to Article 2640 of the Succession Code, AB 1194 requires that legal services to custodians be “in the best interests” of the registrar to be eligible for payment from the registrar’s estate. Expense requests must meet this requirement.

The bill also makes it more difficult for the Conservatives to recover costs or expenses incurred in an unsuccessful litigation, such as defending a petition on costs or opposing a petition filed by or on behalf of the conservative. Unless the court determines by clear and convincing evidence that the defense or opposition was made in good faith, based on the best interests of the conservative, and did not harm the conservative, the court will deny the claim. compensation to the non-predominant curator.

This means that the Conservatives and their lawyers will have to think long and hard before proceeding with the Conservatives, and will be pressured into reaching settlement agreements, as the payment of fees may result in the uncertain outcome of the dispute and the court will have narrow leeway. to authorize the payment. in the absence of success.

“Give me more”

AB 1194 adds to the complexity of California guardianship law. Lawyers who regularly deal with guardianship matters should familiarize themselves with the provisions that come into effect on January 1, 2022.

Lawyers “foreign” to the guardianship world may find opportunities to “free” a “Britney” as AB 1194 opens up conservative representation to their chosen lawyers. These lawyers, however, should not enter the area of ​​guardianship without familiarizing themselves with the applicable laws.

If the legislature funds the implementation of AB 1194 in the coming year, probate courts will need to reconfigure the way they oversee guardianship schedules and hire additional staff. For example, the Sacramento County Superior Court may need to add another Estates and Support Staff Judge to handle the increase in guardianship work given the backlog that already exists in Department 129.

Where from here? As a blogger who occasionally enjoys a Britney song, “Don’t Let Me Be the Last to Know”.

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