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Tentative Ruling
Judge Timothy Staffel
Department 1 SM-Cook
312-C East Cook Street P.O. Box 5369 Santa Maria, CA 93456-5369


Conservatorship of James Swain

Case No: 17PR00190
Hearing Date: Wed Jan 03, 2018 8:30

Nature of Proceedings: Petition to Approve Accounting, Status Report, etc.

Appearance required.  The following is noted for the Court:


This hearing was set for two purposes: 1) Review the Temporary Conservator’s accounting; and 2) Review the status on the durable power of attorney.


A “Status Report” was filed on 12/22/2017 that requested the following relief and set the hearing date for the requested relief on the same date as this hearing:

o   Settle First and Final Account of Temporary Conservator.

o   Confirm Temporary Conservator’s acts during the accounting period.

o   Allow $2976.25 in compensation to Temporary Conservator.

o   Allow $7,580 in compensation to Temporary Conservator’s attorney(s).

o   Authorize new Temporary Letters of Conservatorship up to February 28, 2018.


The Status Report and request for approval of the accounting was filed and served only 12 days before the hearing, making it untimely pursuant to Probate Code section 2621.


Without a new Capacity Declaration, the most recent declaration controls, which shows Conservatee has capacity.  Therefore, the Court has no evidence before it that the Court can rely upon to find a deficit in behavior, understanding, or memory linked to inability to carry out normal functions.  (See Prob. Code, §§ 811, 1801.)  Nor is there any evidence showing the Court there are no suitable alternatives that make conservatorship the least restrictive means to guard the Conservatee against undue influence and fraud.  (See Prob. Code, § 1821(a).)

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