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Chapter 2. General Provisions of California Probate Code >> Division 4. >> Part 1. >> Chapter 2.
Except as otherwise specifically provided in this division,
there is no right to trial by jury in proceedings under this
division.
A motion for a new trial may be made only in cases in which,
under the provisions of this division, a right to jury trial is
expressly granted, whether or not the case was tried by a jury.
(a) The court shall appoint a court investigator when one is
required for the purposes of a proceeding under this division. The
person appointed as the court investigator shall be an officer or
special appointee of the court with no personal or other beneficial
interest in the proceeding.
(b) The person appointed as the court investigator shall have the following qualifications:
(1) The training or experience, or both, necessary (i) to make the investigations required under this division, (ii) to communicate with, assess, and deal with persons who are or may be the subject of proceedings under this division, and (iii) to perform the other duties required of a court investigator.
(2) A demonstrated sufficient knowledge of law so as to be able to inform conservatees and proposed conservatees of the nature and effect of a conservatorship proceeding and of their rights, to answer their questions, and to inform conservators concerning their powers and duties.
(b) The person appointed as the court investigator shall have the following qualifications:
(1) The training or experience, or both, necessary (i) to make the investigations required under this division, (ii) to communicate with, assess, and deal with persons who are or may be the subject of proceedings under this division, and (iii) to perform the other duties required of a court investigator.
(2) A demonstrated sufficient knowledge of law so as to be able to inform conservatees and proposed conservatees of the nature and effect of a conservatorship proceeding and of their rights, to answer their questions, and to inform conservators concerning their powers and duties.
Any petition for instructions or to grant a guardian or a
conservator any power or authority under this division, which may be
filed by a guardian or conservator, may also be filed by a person who
petitions for the appointment of a guardian or conservator,
including, but not limited to, a person who petitions under Section
2002 for transfer of conservatorship.
(a) In addition to any other requirements that are part of
the judicial branch education program, on or before January 1, 2008,
the Judicial Council shall adopt a rule of court that shall do all of
the following:
(1) Specifies the qualifications of a court-employed staff attorney, examiner, and investigator, and any attorney appointed pursuant to Sections 1470 and 1471.
(2) Specifies the number of hours of education in classes related to conservatorships or guardianships that a judge who is regularly assigned to hear probate matters shall complete, upon assuming the probate assignment, and then over a three-year period on an ongoing basis.
(3) Specifies the number of hours of education in classes related to conservatorships or guardianships that a court-employed staff attorney, examiner, and investigator, and any attorney appointed pursuant to Sections 1470 and 1471 shall complete each year.
(4) Specifies the particular subject matter that shall be included in the education required each year.
(5) Specifies reporting requirements to ensure compliance with this section.
(b) In formulating the rule required by this section, the Judicial Council shall consult with interested parties, including, but not limited to, the California Judges Association, the California Association of Superior Court Investigators, the California Public Defenders Association, the County Counsels' Association of California, the State Bar of California, the National Guardianship Association, the Professional Fiduciary Association of California, the California Association of Public Administrators, Public Guardians and Public Conservators, a disability rights organization, and the Association of Professional Geriatric Care Managers.
(1) Specifies the qualifications of a court-employed staff attorney, examiner, and investigator, and any attorney appointed pursuant to Sections 1470 and 1471.
(2) Specifies the number of hours of education in classes related to conservatorships or guardianships that a judge who is regularly assigned to hear probate matters shall complete, upon assuming the probate assignment, and then over a three-year period on an ongoing basis.
(3) Specifies the number of hours of education in classes related to conservatorships or guardianships that a court-employed staff attorney, examiner, and investigator, and any attorney appointed pursuant to Sections 1470 and 1471 shall complete each year.
(4) Specifies the particular subject matter that shall be included in the education required each year.
(5) Specifies reporting requirements to ensure compliance with this section.
(b) In formulating the rule required by this section, the Judicial Council shall consult with interested parties, including, but not limited to, the California Judges Association, the California Association of Superior Court Investigators, the California Public Defenders Association, the County Counsels' Association of California, the State Bar of California, the National Guardianship Association, the Professional Fiduciary Association of California, the California Association of Public Administrators, Public Guardians and Public Conservators, a disability rights organization, and the Association of Professional Geriatric Care Managers.
On or before January 1, 2010, the public conservator shall
comply with the continuing education requirements that are
established by the California State Association of Public
Administrators, Public Guardians, and Public Conservators.
Each court shall ensure compliance with the requirements of
filing the inventory and appraisal and the accountings required by
this division. Courts may comply with this section in either of the
following ways:
(a) By placing on the court's calendar, at the time of the appointment of the guardian or conservator and at the time of approval of each accounting, a future hearing date to enable the court to confirm timely compliance with these requirements.
(b) By establishing and maintaining internal procedures to generate an order for appearance and consideration of appropriate sanctions or other actions if the guardian or conservator fails to comply with the requirements of this section.
(a) By placing on the court's calendar, at the time of the appointment of the guardian or conservator and at the time of approval of each accounting, a future hearing date to enable the court to confirm timely compliance with these requirements.
(b) By establishing and maintaining internal procedures to generate an order for appearance and consideration of appropriate sanctions or other actions if the guardian or conservator fails to comply with the requirements of this section.
In order to assist relatives and friends who may seek
appointment as a nonprofessional conservator or guardian the Judicial
Council shall, on or before January 1, 2008, develop a short
educational program of no more than three hours that is user-friendly
and shall make that program available free of charge to each
proposed conservator and guardian and each court-appointed
conservator and guardian who is not required to be licensed as a
professional conservator or guardian pursuant to Chapter 6
(commencing with Section 6500) of Division 3 of the Business and
Professions Code. The program may be available by video presentation
or Internet access.
(a) The Legislature finds and declares the following:
(1) There is no resource that is more vital to the continued existence and integrity of recognized Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. The state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and other applicable law, designed to prevent the child's involuntary out-of-home placement and, whenever such placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child's tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child's tribe and tribal community.
(2) It is in the interest of an Indian child that the child's membership in the child's Indian tribe and connection to the tribal community be encouraged and protected, regardless of whether or not the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding, the parental rights of the child's parents have been terminated, or where the child has resided or been domiciled.
(b) In all Indian child custody proceedings, as defined in the federal Indian Child Welfare Act, the court shall consider all of the findings contained in subdivision (a), strive to promote the stability and security of Indian tribes and families, comply with the federal Indian Child Welfare Act, and seek to protect the best interest of the child. Whenever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with the Indian Child Welfare Act.
(c) A determination by an Indian tribe that an unmarried person, who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings.
(d) In any case in which this code or other applicable state or federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child, or the Indian child's tribe, than the rights provided under the Indian Child Welfare Act, the court shall apply the higher state or federal standard.
(e) Any Indian child, the Indian child's tribe, or the parent or Indian custodian from whose custody the child has been removed, may petition the court to invalidate an action in an Indian child custody proceeding for foster care or guardianship placement or termination of parental rights if the action violated Sections 1911, 1912, and 1913 of the Indian Child Welfare Act.
(1) There is no resource that is more vital to the continued existence and integrity of recognized Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. The state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and other applicable law, designed to prevent the child's involuntary out-of-home placement and, whenever such placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child's tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child's tribe and tribal community.
(2) It is in the interest of an Indian child that the child's membership in the child's Indian tribe and connection to the tribal community be encouraged and protected, regardless of whether or not the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding, the parental rights of the child's parents have been terminated, or where the child has resided or been domiciled.
(b) In all Indian child custody proceedings, as defined in the federal Indian Child Welfare Act, the court shall consider all of the findings contained in subdivision (a), strive to promote the stability and security of Indian tribes and families, comply with the federal Indian Child Welfare Act, and seek to protect the best interest of the child. Whenever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with the Indian Child Welfare Act.
(c) A determination by an Indian tribe that an unmarried person, who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings.
(d) In any case in which this code or other applicable state or federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child, or the Indian child's tribe, than the rights provided under the Indian Child Welfare Act, the court shall apply the higher state or federal standard.
(e) Any Indian child, the Indian child's tribe, or the parent or Indian custodian from whose custody the child has been removed, may petition the court to invalidate an action in an Indian child custody proceeding for foster care or guardianship placement or termination of parental rights if the action violated Sections 1911, 1912, and 1913 of the Indian Child Welfare Act.
(a) The Indian Child Welfare Act (25 U.S.C. Sec. 1901 et
seq.) shall apply to the following guardianship or conservatorship
proceedings under this division when the proposed ward or conservatee
is an Indian child:
(1) In any case in which the petition is a petition for guardianship of the person and the proposed guardian is not the natural parent or Indian custodian of the proposed ward, unless the proposed guardian has been nominated by the natural parents pursuant to Section 1500 and the parents retain the right to have custody of the child returned to them upon demand.
(2) To a proceeding to have an Indian child declared free from the custody and control of one or both parents brought in a guardianship proceeding.
(3) In any case in which the petition is a petition for conservatorship of the person of a minor whose marriage has been dissolved, the proposed conservator is seeking physical custody of the minor, the proposed conservator is not the natural parent or Indian custodian of the proposed conservatee and the natural parent or Indian custodian does not retain the right to have custody of the child returned to them upon demand.
(b) When the Indian Child Welfare Act applies to a proceeding under this division, the court shall apply Sections 224.3 to 224.6, inclusive, and Sections 305.5, 361.31, and 361.7 of the Welfare and Institutions Code, and the following rules from the California Rules of Court, as they read on January 1, 2005:
(1) Paragraph (7) of subdivision (b) of Rule 1410.
(2) Subdivision (i) of Rule 1412.
(c) In the provisions cited in subdivision (b), references to social workers, probation officers, county welfare department, or probation department shall be construed as meaning the party seeking a foster care placement, guardianship, or adoption.
(1) In any case in which the petition is a petition for guardianship of the person and the proposed guardian is not the natural parent or Indian custodian of the proposed ward, unless the proposed guardian has been nominated by the natural parents pursuant to Section 1500 and the parents retain the right to have custody of the child returned to them upon demand.
(2) To a proceeding to have an Indian child declared free from the custody and control of one or both parents brought in a guardianship proceeding.
(3) In any case in which the petition is a petition for conservatorship of the person of a minor whose marriage has been dissolved, the proposed conservator is seeking physical custody of the minor, the proposed conservator is not the natural parent or Indian custodian of the proposed conservatee and the natural parent or Indian custodian does not retain the right to have custody of the child returned to them upon demand.
(b) When the Indian Child Welfare Act applies to a proceeding under this division, the court shall apply Sections 224.3 to 224.6, inclusive, and Sections 305.5, 361.31, and 361.7 of the Welfare and Institutions Code, and the following rules from the California Rules of Court, as they read on January 1, 2005:
(1) Paragraph (7) of subdivision (b) of Rule 1410.
(2) Subdivision (i) of Rule 1412.
(c) In the provisions cited in subdivision (b), references to social workers, probation officers, county welfare department, or probation department shall be construed as meaning the party seeking a foster care placement, guardianship, or adoption.
