Conservatorship of Priess
Filed 2/6/13 Conservatorship of Priess CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
Conservatorship of the Person
and Estate of ALFRED W. PRIESS.
B234508
GEORGE PRIESS,
Petitioner and Respondent,
v.
ANN PRIESS FIEDLER, as
Conservator, etc.,
Objector and Appellant.
(Los Angeles
County
Super. Ct.
No. BP109243)
APPEAL from
an order of the Superior Court
of
County. Mitchell L.
Beckloff, Judge. Affirmed.
Jay L.
Chavkin and Robert J. Wheeler for Objector and Appellant.
Snell &
Wilmer, Keith M. Gregory for Petitioner and Respondent.
____________________________________
In July 2011, the probate court
removed Ann Priess Fiedler from her position as conservator of the person of
Alfred W. Priess, her father, after concluding she had shown a continued
failure to perform the duties of conservator.
The court also concluded Alfred should be returned to Mississippi
to live with George Priess, Alfred’s son and Ann’s brother, with whom Alfred
had been living since 2008.
name="_ftnref1" title="">[1] On appeal, Ann contends: (1) the probate court abused its
discretion by applying irrelevant or incorrect legal standards to the question
of where Alfred should live; (2) the evidence did not support the court’s
finding that Ann failed to adequately perform her conservator duties; and (3)
the court improperly failed to consider a report issued by an expert pursuant
to Evidence Code section 730. We find no
error and affirm the probate court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
In late
2007 or early 2008, Ann facilitated Alfred’s move from his home in Palos Verdes
to a nursing home in Newport Beach. Alfred was 83 years old. In February 2008, Alfred’s two sons, George
and Jeffrey Priess, took him from the nursing home without notifying Ann. They drove Alfred to Mississippi,
where George lived. Ann filed a petition
seeking appointment as conservator of Alfred’s person. The petition alleged Alfred suffered from
dementia and required assistance with the activities of daily living and
medication compliance. In late February
2008, the court appointed Ann temporary conservator, and issued a
George and Jeffrey from removing Alfred from California.
In April
2008, Alfred’s court-appointed counsel reported George had filed a petition for
conservatorship in Mississippi
the previous month. The Mississippi
court dismissed the petition for lack of jurisdiction because the case had been
filed in California first. In June 2008, the probate court appointed Ann
as permanent conservator of Alfred’s person.
The court found Alfred lacked capacity to give informed consent to any
medical treatment. The court also
ordered Ann to file a care plan within 60 days.
The subsequent letters of conservatorship gave Ann the exclusive
authority to give consent for, and to require, Alfred to receive medical
treatment.
Ann did not
initiate legal proceedings in Mississippi
or seek assistance from the court in getting Alfred returned to California. In February 2009, Ann petitioned to be
appointed conservator of Alfred’s estate.
George opposed the petition. The
court ordered the parties to jointly select a psychologist to conduct a
neuropsychological examination of Alfred, pursuant to Evidence Code section
730. The issue to be determined was
Alfred’s competency, including his competence to obtain and direct legal
counsel. The resulting expert report
concluded Alfred suffered from profound dementia, he lacked capacity to retain
or work with counsel, and he also lacked the ability to manage his financial or
personal care. Eventually, the parties
agreed to the appointment of a private professional fiduciary to serve as
conservator of Alfred’s estate.
name="_ftnref3" title="">[3] In September 2009, the court appointed
professional fiduciary Alexandra Matejic as conservator of Alfred’s estate.
In April
2011, Ann made an unannounced trip to visit Alfred in Mississippi. According to Ann, she was alarmed at Alfred’s
physical condition. On the three previous
occasions Ann saw Alfred between 2008 and 2010, he appeared to be in good
health and well-cared for. But this
time, Ann reported that Alfred was unshaven, unclean, and wore dirty clothes. He was barely able to walk and appeared to be
home alone. Without notifying anyone,
Ann immediately took Alfred from George’s home and flew him back to
California. She placed him in a board
and care facility within days of his return.
Soon
thereafter, George petitioned the court to remove Ann as conservator of Alfred’s
person. George requested that the court
appoint a temporary conservator, and allow Alfred to return to George’s home in
Mississippi. George submitted a
declaration from Alfred’s treating physician in Mississippi. The physician declared he had treated Alfred
since February 2008, and he had seen a “dramatic positive turn around†in
Alfred. The physician further declared
Ann had never contacted him to find out about Alfred’s medications, or whether
it was safe for Alfred to fly.
Ann opposed
the petition seeking her removal as conservator. Ann contended it was necessary for her to
remove Alfred from Mississippi and place him in a board and care facility. She alleged that in Mississippi, she found
Alfred “uncared for, for hours at a time, wearing soiled clothing, with sores
on his legs, and living in a residence that required him to negotiate stairs,
which he could not do without assistance.â€
Alfred’s court-appointed attorney
concluded Ann’s removal of Alfred from Mississippi was not in his best interests. The attorney reported:
“Ann has done little if
anything to try to get Alfred back to California in the approximately three
years since she was appointed as conservator of Alfred’s person. During this period, Ann has had limited
contact with Alfred or George and had little, if any, basis to know how Alfred
was doing. As conservator Ann apparently
never hired anyone in Mississippi to periodically go and check in on Alfred’s
living and health conditions.
“Ann’s claim that Alfred
agreed to return to California is not credible and is inconsistent with
Alfred’s wishes, as he expressed them to me in February 2008 and on April 18,
2011. It appears that the intention of
bringing Alfred back to California was to move him into a facility since, the
day after coming back, Ann authorized [a doctor] to fill out the form to
determine if Alfred’s admission . . . into a [residential care facility for the
elderly] was appropriate. I cannot agree
that living in a facility with strangers is better than living with family
members who were apparently taking good care of Alfred. . . . [¶] . . . [¶]
“I respectfully recommend
that the court suspend or remove Ann as conservator of the person.â€
Alfred’s attorney further recommended that a temporary
conservator should determine the appropriateness of returning Alfred to
Mississippi to live with George.
The court
temporarily suspended Ann as conservator of George’s person and appointed the
conservator of Alfred’s estate, Matejic, as temporary conservator of his person. The court set the removal petition for an
evidentiary hearing, and advised the parties the court would also consider the
issue of whether Alfred should reside in Mississippi, or whether Ann should
have the authority to change his residence to California.
The court
held a two-day hearing in June 2011.
George testified he had installed handrails inside his home so that
Alfred could navigate the space safely.
He indicated Alfred’s health had improved since 2008; at one point
Alfred was walking several miles each day, but stopped in 2010 due to extreme
southern heat. Alfred lived with George,
George’s wife, and their son. A nurse
from a homecare agency visited the house once each week. A memory therapist also worked with Alfred on
a regular basis. George testified that
he helped Alfred with bathing and taking medicine. He changed Alfred’s adult diapers, changed
his clothes, and fed him breakfast each day.
George had hired a neighbor to care for Alfred while he and his wife
were at work. George denied that he had
ever prevented Ann from calling Alfred, and denied that she had ever sent a
card or letter to Alfred. According to
George, on the day that Ann took Alfred away, the neighbor caring for Alfred
left the house on an errand, but George’s adult son was home.
In advance
of the trial, Matejic filed a report with the court. She concluded that while Alfred was being
well-cared for in the residential facility, he would benefit from living in a
home with family members in a community rather than living with strangers. She noted Mississippi adult protective
services had found no evidence of abuse or neglect during an investigation. At
the trial, Matejic testified she had suggested that Ann hire someone to visit
Alfred and check on him. She also told
Ann she needed court permission to give Ann money from the estate to hire an
attorney to help get Alfred returned to California. In addition, Matejic suggested that Ann
communicate with Alfred’s physician in Mississippi, and contact the Mississippi
department of social services to have someone check on Alfred. Consistent with her report, Matejic indicated
she believed it was in Alfred’s best interests for him to be returned to
George’s home in Mississippi.
Ann
testified she had seen her father four times after George took him to
Mississippi, including the April 2011 visit when she took him back to
California. Two of the occasions were
related to legal proceedings.
name="_ftnref5" title="">[5] Ann admitted she had never attempted to
contact Alfred’s treating physician in Mississippi. She did not know that a nurse was seeing
Alfred once a week in Mississippi, and she was only vaguely aware that a speech
and language pathologist was working with him.
When she took Alfred in April 2011, she did not think to take his
medication, cane, or hearing aids with them.
Ann also testified that when George
first took Alfred to Mississippi, she attempted calling Alfred at least five
times per month, but she never got a response.
When she saw Alfred in 2009 and 2010, she thought he looked excellent. She called Mississippi adult protective
services in 2008 and tried to get them to visit Alfred. She testified that she contacted the agency
three or four times, but never heard back.
She testified that she refrained from ever taking legal action in
Mississippi more out of a desire not to upset Alfred than a lack of funds. When she made her unannounced April 2011
visit, she was shocked at her father’s apparent physical decline, his unkempt
and dirty appearance, that he had stopped walking, and that no one seemed to be
home with him.
The probate court granted the
petition for removal of Ann as conservator of Alfred’s person. In a lengthy written ruling, the court
explained Ann “completely failed to perform any of her duties as Conservator of
the Person.†The court chronicled Ann’s
failures in this regard, noting her infrequent visits to Mississippi; her
failure to communicate with George about Alfred’s care with any regularity; the
lack of evidence that she was aware of any of Alfred’s medications or
hospitalizations; and her failure to consult with any medical or service
provider for Alfred when she was in Mississippi. The court noted Ann had never complied with
the court order to file a care plan, and that although Alfred was receiving
psychotropic medications for dementia, no one had received the requisite court
approval for this treatment.
The court further explained it
could not find on the record before it that Ann made active efforts to have
Alfred returned to California, despite her awareness that legal avenues were
available to her. Moreover, the court
indicated that even if Ann had determined that obtaining Alfred’s return to
California would have been detrimental to him, she “still could have taken
actions consistent with her role as Conservator. She could have had regular telephonic
conferences with the Conservatee’s doctor, daily care provider, visiting nurse,
and speech and language therapist. She
could have reviewed the medications he was taking and obtained the
Conservatee’s medical records. She also
could have attempted regular telephonic reports from [George] or secured a
court order for the same given that [George] had appeared before this court and
submitted to its jurisdiction. Finally
[Ann] could have hired her own care manager to make regular checks on the
Conservatee. [¶] Based on [Ann’s] complete failure to act as
Conservator for the Conservatee, the court finds that her removal is in the best
interests of the Conservatee and that she has consistently failed to perform
her duties during the 33 months that she held that office.†(Boldface omitted.)
The court additionally considered
the request that it return Alfred to Mississippi. After discussing
conservatee’s residence, the court concluded the evidence supported a finding
that Alfred could live in a less restrictive environment than a skilled nursing
facility. The court further found Ann,
in her inaction and acquiescence, allowed George’s home in Mississippi to
become Alfred’s residence, and that this was a less restrictive alternative
than an assisted living facility. The
court thus concluded: “[Ann] did not meet
her burden of establishing by a preponderance of the evidence that moving the
Conservatee from Mississippi was appropriate.
(Conversely, to the extent [George] was required to prove that a move to
Mississippi was in the Conservatee’s best [interests], he has done so.)†The court acknowledged George was negligent
in his care of Alfred on the day Ann found Alfred alone. But the court ultimately concluded the
evidence was insufficient to warrant removing Alfred from his residence in
Mississippi, and that this was the least restrictive environment for him. The court ordered Matejic to facilitate
Alfred’s return to Mississippi, and the filing of a conservatorship equivalent
in Mississippi.
Ann appealed the court’s order.
DISCUSSION
Discretion in Removing Ann as Conservator of Alfred’s Person
Under
Probate Code section 2650, a conservator may be removed for several reasons,
including “[c]ontinued failure to perform duties or incapacity to perform
duties suitably,†(§ 2650, subd. (c)), and “[i]n any other case in which the
court in its discretion determines that removal is in the best interests of the
. . . conservatee.†(§ 2650,
subd. (i).)
title="">[7]
“Where a trial court has discretion
to decide an issue, it will generally be reversed on appeal only where it
clearly appears a prejudicial abuse of discretion in fact occurred.†(Conservatorship
of Scharles (1991) 233 Cal.App.3d 1334, 1340.) We will not find an abuse of discretion
unless “under all the evidence, viewed most favorably in support of the trial
court’s action, no judge could have reasonably reached the challenged
result. [Citation.] ‘[A]s long as there exists “a reasonable or
even fairly debatable justification, under the law, for the action taken, such
action will not be . . . set aside. . . .†’
[Citation.] More specifically, a
trial court’s exercise of discretion will not be disturbed unless the record
establishes it exceeded the bounds of reason or contravened the uncontradicted
evidence [citation], failed to follow proper procedure in reaching its decision
[citation], or applied the wrong legal standard to the determination.†(Ibid.;
535, 538 [removal of guardian for reasons specified in the Probate Code rests
within broad discretion of the court].)
“ ‘The
burden is on the complaining party to establish abuse of discretion, and the
showing on appeal is insufficient if it presents a state of facts which simply
affords an opportunity for a difference of opinion. [Citation.]’
[Citation.]†(
Cal.App.4th 689, 697.)
The probate
court’s decision to remove Ann as conservator of Alfred’s person was well
within the bounds of reason. The
evidence established that between 2008 and 2011, Ann did almost nothing in her
role as conservator. Ann never filed a
care plan as the court ordered, and indeed, it seemed she had no plan for
Alfred’s care. (See § 2352.5, subd. (c)
[requiring conservator to file determination of appropriate level of care for
conservatee with court within 60 days of appointment].) She took no legal steps to have Alfred
returned to California. Although she
later indicated one problem was her lack of personal funds to pay for legal
counsel in Mississippi, she did not attempt to have money provided from Alfred’s
estate for this purpose. She received
legal advice from Mississippi counsel, but never took any action in the
Mississippi courts to have her conservatorship powers enforced there.
As conservator, Ann was responsible
for the “care, custody, and control of†Alfred.
(§ 2351, subd. (a).) Yet, she had
minimal contact with Alfred. She managed
to see him only once each year. Even
though she had exclusive powers to consent to medical treatment for him (§
2355), she was almost completely unaware of the medical treatment he was
receiving in Mississippi. She did not
attempt to contact Alfred’s treating physician in Mississippi, or any other
medical professional providing care to Alfred.
She went to George’s house only once before April 2011, and was
therefore largely uninformed about Alfred’s living arrangements or the level of
care he was receiving. (See § 2352.5,
subds. (b), (d) [conservator is to evaluate conservatee’s placement and the
appropriate level of care needed].) Even
if the probate court accepted Ann’s testimony that she attempted to telephone
Alfred but could not reach him, and tried contacting Mississippi’s adult
protective services agency, but never got a response, the court did not abuse
its discretion in rejecting any suggestion that these unsuccessful efforts were
sufficient. If Ann was being thwarted in
carrying out her role as conservator, it was her responsibility to take legal
measures available to her that would allow her to fulfill her duties.
The evidence clearly supported a
finding that Ann failed to carry out her duties to exercise care, custody, and
control of Alfred during the three years she served as conservator. The probate court did not abuse its
discretion in removing Ann as conservator of Alfred’s person. (Guardianship
of Howard (1933) 218 Cal. 607, 610 [court did not abuse its discretion in
finding continued failure to perform duties under Probate Code former section
1580 where guardian left ward without the care of anyone legally authorized to
supervise him for seven months]; Guardianship
of Whittaker (1937) 19 Cal.App.2d 373, 375.)
II. The
Probate Court Did Not Err in Its Ruling on Alfred’s Residence
On appeal,
Ann contends the probate court did not have the legal authority to order that
Alfred be returned to Mississippi; the court improperly considered concepts set
forth in sections 2352 and 2352.5 in making its decision; and the court erred
in concluding George’s home in Mississippi had become Alfred’s residence. We find no merit in her contentions.
A. Relevant Statutory Principles
We begin our analysis with several
relevant principles in the Probate Code’s conservatorship provisions. Section 1800 indicates that through the
conservatorship provisions, the Legislature intended to, among other things,
“[p]rovide that the health and psychosocial needs of the proposed conservatee
are met,†“[p]rovide that community-based services are used to the greatest
extent in order to allow the conservatee to remain as independent and in the
least restrictive setting as possible,†and to “[p]rovide that the periodic
review of the conservatorship by the court investigator shall consider the best
interests of the conservatee.†(§ 1800,
subds. (c)-(e).) Under section 1850, the
court is required to conduct periodic reviews of the conservatorship. In addition to mandatory reviews at
six months and one year after the conservatorship is established, the
court may also, on its own motion, or upon request by any interested person,
“take appropriate action†including, but not limited to, ordering a review of
the conservatorship, including at a noticed hearing. (§ 1850, subd. (b).) Under section 2102, a “conservator is subject
to the regulation and control of the court in the performance of the duties of
the office.â€
With
respect to the residence of a conservatee, the conservatorship provisions
attempt to ensure that the conservatee will remain in the least restrictive
living situation possible. Once
appointed, the conservator is required to determine the appropriate level of
care for the conservatee, including “an evaluation of the level of care
existing at the time of commencement of the proceeding and the measures that
would be necessary to keep the conservatee in his or her personal
residence.†(§ 2352.5, subd. (b)(1).) Under section 2352.5, subdivision (a), it is presumed
that the “personal residence†of the conservatee at the time of commencement of
conservatorship proceedings is the least restrictive appropriate residence.
If the conservatee is not living at
his or her personal residence, the conservator’s determination under section
2352.5, subdivision (b) must “include a plan to return the conservatee to his
or her personal residence or an explanation of the limitations or restrictionsâ€
on returning the conservatee to the personal residence in the “foreseeable
future.†(§ 2352.5,
subd. (b)(2).) The conservator’s
determination must be in writing, signed under penalty of perjury, and
submitted to the court within 60 days of the conservator’s appointment. (§ 2352.5, subd. (c).) The conservator also has an ongoing duty to
evaluate the conservatee’s placement in the event of a material change of
circumstances affecting the conservatee’s needs for placement and care. (§ 2352.5, subd. (d).) In “any hearing to determine if removal of
the conservatee from his or her personal residence is appropriate,†the
presumption that the personal residence is the least restrictive appropriate
residence “may be overcome by a preponderance of the evidence.†(§ 2352.5, subd. (a).)
The conservator may establish the
conservatee’s residence in California without court permission. However, she must “select the least
restrictive appropriate residence, as described in Section 2352.5, that is
available and necessary to meet the needs of the conservatee, and that is in
the best interests of the conservatee.â€
(§ 2352, subd. (b).) If the
conservator changes the conservatee’s residence, she is required to notify the
court and designated persons within 30 days of the date of the change, and must
also include a declaration indicating the change of residence is consistent
with the least restrictive appropriate residence and best interests standard
set forth in section 2352, subdivision (b).
(§ 2352, subd. (e)(1), (2).) If
the conservator intends to move the conservatee from his or her personal
residence, advance notice to the court and designated persons is required. (§ 2352, subd. (e)(3).)
The
conservator may also establish the conservatee’s residence outside of
California, but only with court permission.
(§ 2352, subd. (c).) An order
allowing the conservator to establish the conservatee’s residence out of state
must “require the . . . conservator either to return the . . . conservatee to
this state, or to cause a . . . conservatorship proceeding or its equivalent to
be commenced in the place of the new residence, when the . . . conservatee has
resided in the place of new residence for a period of four months or a longer
or shorter period specified in the order.â€
(§ 2352, subd. (d).)
The Probate Court Had the Authority to Consider Where Alfred
Should Reside and to Review Ann’s Placement of Alfred in California
We reject Ann’s assertion that as
conservator, only she could decide what the least restrictive appropriate
residence was for Alfred, and, because she was not seeking to move him out of
state, her determination of his residence was beyond challenge or probate court
review. Under both the provisions
regarding the court’s periodic review of conservatorships (§ 1850, subd. (b)),
and the general power afforded the court by section 2102, the court had the
authority to review the parties’ opposing contentions about Alfred’s
residence. This is particularly true in
light of the court’s determination that Ann failed to perform her duties as conservator. Indeed, prior to the July 2011 decision, the
probate court had suspended Ann’s powers as conservator and temporarily
appointed Matejic in the role. Matejic’s
suggestion to the court was that Alfred be returned to Mississippi. Pursuant to section 2352, subdivisions (b)
and (c), the court properly considered this recommendation to fix Alfred’s
residence out of state.
It was more than appropriate for
the court to assess whether Alfred’s most recent living situation was in his
best interests. Ann had moved Alfred
without providing any pre- or post-move notice; an interested party, George,
objected and asserted the move was not in Alfred’s best interests; the move was
from a family home to a board and care facility; Alfred’s counsel disagreed
with the move; and the temporary conservator of Alfred’s person recommended
that he be allowed to live in George’s home in Mississippi. The probate court had the authority to
consider the question of where Alfred should live, and the least restrictive
appropriate option available to him. (
Cal.App.2d 669, 679 [jurisdiction of the probate court in guardianship is
“broad, comprehensive and plenary,†continues throughout the life of the
guardianship and “may be invoked whenever the circumstances presented make
necessary a modification of the original decreeâ€].)
C. The Probate Court Properly
Applied the Relevant Statutory Principles
The probate court properly applied
the priorities expressed in the statute as to a conservatee’s residence. Specifically, the court appropriately
considered what would be Alfred’s least restrictive appropriate residence. Under section 2352, subdivision (b), this is
what the conservator is supposed to seek in choosing the conservatee’s
residence, and this standard is consistent with the Legislature’s intent set
forth in section 1800, subdivision (d).
Ann asserts the probate court erred
in considering what Alfred’s “personal residence†was. However, it does not appear that the court
reached any conclusion as to Alfred’s “personal residence.†Instead, the court’s ultimate conclusion
described the least restrictive alternative and Alfred’s best interests. The court did not conclude George’s home in Mississippi was, or ever had been,
Alfred’s “personal residence.â€
We disagree with Ann’s suggestion
that because she never sought court permission for Alfred to live in
Mississippi under section 2352, subdivision (c), the court was required to
ignore the reality that Alfred had actually lived in Mississippi for the past
three years as it considered what the least restrictive appropriate residence
would be for him moving forward. We note
the evidence supported the court’s finding that Ann acquiesced in George’s home
in Mississippi becoming Alfred’s residence.
residence†was California or Mississippi between February 2008 and April 2011,
the issue before the court in July 2011 was the least restrictive appropriate
residence available and necessary to meet Alfred’s needs and that was in his
best interests, and Matejic’s indication that allowing Alfred to reside in
Mississippi was in his best interests.
The court properly and reasonably considered the evidence admitted on
this issue and made a decision well within the bounds of its legal discretion.
We need not necessarily consider or
agree with every step of the probate court’s analysis. We review a lower court’s ruling, not
its reasons. (Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th
1193, 1201.) The evidence supported the
probate court’s conclusion that George’s home in Mississippi provided the least
restrictive appropriate residence available to him, and returning him there
would be in his best interests. The
court did not abuse its discretion in ordering Matejic to facilitate Alfred’s
return to Mississippi.
We further disagree that the
probate court’s analysis was tainted by an improper allocation of the burden of
proof. The probate court suggested that
whether Ann or George bore the burden of proof on the least restrictive appropriate
residence question, it would reach the same conclusion. The evidence was largely undisputed that
while Alfred would receive appropriate care at both the residential care
facility in California and at George’s home in Mississippi, George’s home, where
Alfred could live among family, was a less restrictive setting. Even if the court erred in its allocation of
the burden of proof, Ann has failed to articulate any possible prejudice given
the state of the evidence. (
712, 738 [error in allocating burden of proof must be prejudicial in order to
constitute reversible error].)
III. No
Error in Connection With the Evidence Code Section 730 Report
Finally, the probate court did not
err by failing to consider the report issued pursuant to Evidence Code section
730 in connection with the July 2011 ruling.
The record does not establish the court did not consider the
report. When the expert first issued the
report in 2009, the court told the parties it had not had a chance to review
the report at the first court hearing that followed. But the report was subsequently admitted as
an exhibit at the June 2011 evidentiary hearing. The court noted in its July 2011 written
ruling that it reviewed “extensive documents . . . admitted into
evidence.†It is the probate court’s
role to examine the evidence, and we presume the court performed its duty. (§ 664; Christian
Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1324.)
Further, even if the court did not
review the expert report in connection with the July 2011 ruling, we would find
no prejudicial error. The court ordered
the evaluation in 2009 to provide an expert psychological opinion on whether
Alfred was competent. The court was
concerned about Alfred’s capacity to retain counsel, and whether a conservator
of his estate was necessary. The
resulting report reflected a focus on these issues. The court did not seek an expert opinion in
connection with the question of whether Ann should be removed as conservator of
Alfred’s person under section 2650, or what the least restrictive
appropriate residence would be for Alfred in 2011.
We have reviewed the report in
question and note that the expert offered opinions beyond what the court
requested. For example, the expert
opined George had exerted “undue influence†over Alfred, as that term is
defined by Civil Code section 1575.
He also opined on Ann’s performance and suitability as conservator
of Alfred’s person. However, the expert
was a forensic psychiatrist. It is not
clear he was qualified to offer opinions on these issues, which, in any event,
were primarily determinations for the court to make. In addition, the report was issued in 2009,
almost two full years before the court’s July 2011 decision. Thus, for several reasons, the report had
limited, if any, value with respect to the issues before the court in July
2011. Even if the court failed to review
it, Ann has shown no prejudicial error.
DISPOSITION
The probate court order is
affirmed. Respondent shall recover his
BIGELOW,
P. J.
We concur:
RUBIN, J.
FLIER, J.
name="_ftn1" title="">[1] To
avoid confusion, we refer to the parties by their first names.
is unclear from the record if George and Jeffrey had already taken Alfred out
of California by the time the temporary restraining order issued.
