This article analyzes the impact of California Assembly Bill No. 1194 (AB 1194) on professional fiduciaries and court-appointed counsel and posits funding issues as a barrier to achieving the goals set out by AB 1194 and prior conservatorship law reforms. This article proposes numerous changes to AB 1194, including incentivizing rather than solely penalizing professional fiduciaries, adopting a midway standard between zealous advocacy and the best interests standard for court-appointed counsel, and development of a coherent funding plan.

AB 1194 was adopted largely in response to media movements such as #FreeBritney, the movement which called for an end to the conservatorship of Britney Spears. #FreeBritney, however, resulted in no studies to quantify abuse in the context of conservatorships, and the legislative history of the resulting bill cites small-sample, niche, or fictional accounts of abuse in support. Articles analyzing AB 1194 specifically are similarly few and far between.

In practice, AB 1194 poses significant problems that undermine its goal of protecting the elderly and incapacitated. As currently written, AB 1194 risks triggering a mass exodus of professional fiduciaries from conservatorship work. Scarcity of professional fiduciaries will disadvantage conservatees because professional fiduciaries offer neutrality and experience in handling complex conservatorships. AB 1194 additionally requires zealous advocacy of court- appointed counsel, codifying one side of a longstanding debate between the zealous advocacy and the best interests of the conservatee standard for court-appointed counsel. However, zealous advocacy is impractical in certain situations, and in others, places the conservatee in danger. Further, the Legislature has not made clear how much funding is necessary to accomplish the mandates of AB 1194, nor is it clear where the funding will come from. Without a coherent fiscal plan, AB 1194 will not achieve its goal of protecting the elderly.

With the population of elderly individuals in California estimated to expand rapidly in the coming years, it is necessary that California adopt data-driven conservatorship legislation that creates, supports, and funds a protective conservatorship system.

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