Rule 7.1103 - Qualifications and annual education required for counsel appointed to represent a conservatee, proposed conservatee, or person alleged to lack legal capacity (Prob. Code, Sections 1456, 1470(a), 1471)Except as provided in rule 7.1104(b), an attorney appointed to represent the interests of a conservatee, proposed conservatee, or person alleged to lack legal capacity must have met the qualifications in (a) or (b) and, in every calendar year after first availability for appointment, must meet the annual education requirements in (c).
(a) Experience-based qualificationsAn attorney is qualified for appointment if, within the five years immediately preceding first availability for appointment, the attorney has personally represented a petitioner, an objector, a conservatee or proposed conservatee, or a person alleged to lack legal capacity or be gravely disabled in at least three separate proceedings under either division 4 of the Probate Code or the LPS Act, including at least one contested matter or trial.
(b) Alternative qualificationsAn attorney who does not yet meet the experience-based qualifications in (a) may, until the attorney has gained the necessary experience, qualify for appointment if the attorney meets the requirements in (1) or (2).
(1) At the time of appointment, the attorney works for an attorney, a private law firm, a public defender's office, or a legal services organization (including the organization designated by the Governor as the state protection and advocacy agency, as defined in section 4900(i) of the Welfare and Institutions Code) approved by the court for appointment to represent conservatees, proposed conservatees, and persons alleged to lack legal capacity, and the attorney is supervised by or working in close professional consultation with a qualified attorney who has satisfied the experience requirements in (a); or (2) In the 12 months immediately before first availability for appointment, the attorney has completed at least three hours of professional education approved by the State Bar of California for Minimum Continuing Legal Education (MCLE) credit in the subjects listed in (d), and, at the time of appointment, the attorney is working in close professional consultation with a qualified attorney who has satisfied the experience requirements in (a).(c) Annual education(1) Each calendar year after first availability for appointment, an attorney appointed by the court to represent a conservatee, proposed conservatee, or person alleged to lack legal capacity must complete at least three hours of professional education approved by the State Bar for MCLE credit in the subjects listed in (d).(2) The annual education in (1) must include at least one hour of instruction on less restrictive alternatives to conservatorship, as specified in (d)(4). (Subd (c) amended effective January 1, 2024.)
(d) Subject matter and delivery of educationEducation in the following subjects-delivered in person or by any State Bar- approved method of distance learning-may be used to satisfy this rule's education requirements:
(1) State and federal statutes-including the federal Americans with Disabilities Act (42 U.S.C. §§ 12101-12213)-rules of court, and case law governing probate conservatorship proceedings, capacity determinations, and the legal rights of conservatees, persons alleged to lack legal capacity, and persons with disabilities;(2) The attorney-client relationship and lawyer's ethical duties to a client under the California Rules of Professional Conduct and other applicable law; and(3) Special considerations for representing an older adult or a person with a disability, including: (A) Communicating with an older client or a client with a disability;(B) Vulnerability of older adults and persons with disabilities to undue influence, physical and financial abuse, and neglect; and(C) Effects of aging, major neurocognitive disorders (including dementia), and intellectual and developmental disabilities on a person's ability to perform the activities of daily living.(4) The less restrictive alternatives to conservatorship, including supported decisionmaking, stated in Probate Code section 1800.3. (Subd (d) amended effective January 1, 2024.)
Rule 7.1103 amended effective 1/1/2024; amended effective 9/1/2023; adopted effective 1/1/2020.