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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 Mar 28, 2018 8:30

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

Appearance required. The following is noted for the Court:


-          The Durable Power of Attorney has been executed by Mr. Swain. The only matter remaining is to approve the Temporary Conservator’s accounting.


-          The following discrepancies in the accounting that were included in the “Status Report” filed on 12/22/2017 were noted:


o   Discrepancy no. 1 - Original account statements are required to be separately submitted with the accounting for verification. (Prob. Code, § 2620.) The bank account statements submitted with the petition are not originals.

o   Discrepancy no. 2 – Title on the account for the conservatee must reflect the conservatorship. (CRC 7.1059 (b)(7).) The account in this case reflects only the conservatee’s name.

o   Discrepancy no. 3 - Residential care facility or long term care facility bills must also be original statements. (Prob. Code, § 2620(b)(5).) The statements submitted are not originals.

o   Discrepancy no. 4 – There is no allegation discussing the sufficiency of the bond in this case. Sufficiency of the bond must be addressed. (See Local Rule 1714 (f)(6).) The current amount of the bond should be stated, as well as allegations whether the bond need be reduced or increased. The amount of the bond given by an admitted surety insurer must calculated as outlined in Probate Code section 2320(c) and Rules of Court, Rule 7.204(c).


-          The recently filed supplement (3/13/2018) corrected discrepancy nos. 2 and 4, but failed to correct the original documents issues by claiming substantial compliance due to electronic delivery of the documents required. Original documents can be obtained easily by contacting the financial institution and care facility and asking for certified copies. The Court should not find substantial compliance with Probate Code section 2620 as a result.


-          The Court should find that 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.)


-          The Court should also find the recently executed Durable Power of Attorney is a suitable alternative to a conservatorship, thus the least restrictive means to guard the Conservatee against undue influence and fraud. (See Prob. Code, § 1821(a).)

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