BILL ANALYSIS Ó AB 937 Page 1 Date of Hearing: May 7, 2013 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair AB 937 (Wieckowski) - As Amended: April 18, 2013 As Proposed to be Amended SUBJECT : CONSERVATEES: PERSONAL RIGHTS KEY ISSUE : SHOULD THE LAW BE CLARIFIED TO CONFIRM THAT CONSERVATEES RETAIN THEIR PERSONAL RIGHTS, PARTICULARLY THE RIGHT TO STAY IN CONTACT WITH FAMILY AND FRIENDS, UNLESS OTHERWISE ORDERED BY A COURT? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS In California, if an adult is unable to manage his or her medical and personal decisions, a conservator of the person may be appointed. While a conservator of the person has charge of the care, custody and control of the conservatee, that power is not absolute. According to the author, some conservators incorrectly believe that having the "care, custody, and control" of the conservatee gives them absolute control over the conservatee. This supposed absolute control allows some conservators "to completely isolate conservatee[s] from the outside world. No visitors, no phone calls, no mail from life partner, family, friends, neighbors, clergy, and /or advocates." This bill seeks to correct this misunderstanding by clarifying that unless limited by court order, a conservatee retains his or her personal rights, including the right to receive visitors, mail and telephone calls. There is no opposition to the bill as proposed to be amended. SUMMARY : Clarifies that a conservatee still retains personal rights, unless limited by the court. Specifically, this bill provides that a conservator's duty of care, custody and control of the conservatee does not extend to the personal rights of the conservatee, including, but not limited to, the right to receive visitors, telephone calls and personal mail, unless specifically limited by court order. AB 937 Page 2 EXISTING LAW : 1)Allows a court to appoint a conservator to act on behalf of a person who is unable to adequately provide for his or her personal needs (a conservator of the person) or incapable of managing his or her property or other financial assets (a conservator of the estate). (Section 1800 et seq. Unless stated otherwise, all further statutory references are to that code.) 2)Allows a court, upon showing of good cause, to appoint a temporary conservator to serve pending the appointment of a permanent conservator. Unless the court orders otherwise, provides the temporary conservator with only those powers and duties that are necessary to provide for temporary care of the conservatee or ward and to preserve and protect the property of the conservatee or ward from loss or injury. (Section 2250 et seq.) 3)Unless limited by the court, provides the conservator with care, custody and control of the conservatee. (Section 2351.) 4)Requires a conservator or guardian to use ordinary care and diligence in managing the estate. (Section 2401.) 5)Requires the Judicial Council to develop an information notice on the rights of conservatees, which must be attached to the order appointing the conservator. Requires the conservator to mail the order and the required notice on the rights of conservatees to the conservatee and the conservatee's relatives. (Section 1830.) 6)Allows a court to issue a protective order on behalf of an elder or dependent adult. (Welfare & Institutions Code Section 15657.03.) COMMENTS : In California, if an adult is unable to manage his or her financial matters, a conservator of the estate may be appointed by a court to manage the adult's or conservatee's financial matters. If the adult is unable to manage his or her medical and personal decisions, a conservator of the person may be appointed. While a conservator has charge of the care, custody and control of the conservatee, that power is not absolute. AB 937 Page 3 According to the author, some conservators incorrectly believe that having the "care, custody, and control" of the conservatee gives them absolute control over the conservatee. This supposed absolute control allows some conservators, writes the author, "to completely isolate conservatee[s] from the outside world. No visitors, no phone calls, no mail from life partner, family, friends, neighbors, clergy, and /or advocates." This bill seeks to correct that by clarifying that unless limited by court order, the conservatee retains his or her personal rights, including the right to receive visitors, mail and telephone calls. The limitation is important to ensure that the court (and the conservator who may, whenever necessary, seek protective orders through the court) can protect the conservatee from abuse. However, unless so limited, the bill makes clear that the conservatee retains the right to communicate with family and friends. Mandatory Judicial Council Form Specifically Recognizes the Conservatees' Rights : At the start of the conservatorship, the conservator is required by law to send the conservatee and the conservatee's relatives the order establishing the conservatorship and a notice of conservatee rights form developed by the Judicial Council. That form, Judicial Council Form GC-341, states: When a person becomes a conservatee, he or she does not necessarily lose the right to take part in important decisions affecting his or her property or way of life. Every conservatee has the right to be treated with understanding and respect and to have his or her wishes considered. Every conservatee has all basic human rights and the rights to be well cared for by his or her conservator. . . . The conservatee will be allowed the greatest degree of freedom and privacy possible consistent with the underlying reasons for the conservatorship. The conservator should give as much regard to the wishes of the conservatee as possible under the circumstance so that the conservatee may function at the highest level his or her ability permits. The conservator must give due regard to the preferences of the conservatee and to encourage the conservatee's participation in decision-making. Particularly relevant to this bill, the form goes on to provide AB 937 Page 4 that, unless a court has limited or taken away the right, the conservatee keeps the right to, among other things, receive personal mail, receive visits from family and friends, vote and marry. This bill simply clarifies that right. Author's Amendments : While the author wants to ensure that conservatees are protected from abuse, the author also wants to ensure that their right to keep in contact with loved ones is not unreasonably restricted. Thus, the author has agreed to remove "or necessary to protect the conservatee from abuse" from the bill, which the Congress of California Seniors - Region 3 believes "would legalize and legitimize a most heinous form of abuse." This amendment addresses the issues raised by both the supporters seeking amendments and those opposed unless amended. In addition, in order to clarify that the conservatee's right is to receive personal mail, as opposed to business or commercial mail, such as bills, which appropriately, in most cases, should be received by a conservator of the estate, the author has rightly agreed to limit the bill's application to personal mail. While court forms do not control legislation, this change harmonizes the statute with the existing Judicial Council form. These two amendments change the bill as follows: This control shall not extend to personal rights retained by the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court orderor necessary to protect the conservatee from abuse. Growing Problem for Conservatees : An attorney with California Advocates for Nursing Home Reform writes about the abuse that can occur when conservators seek to isolate their conservatees: Problems regarding visitation with conservatees have been increasing at an alarming level. There have been regulatory enforcement actions in assisted living facilities, court cases, and news reports featuring various cases where a conservator controlled a conservatee's visitation without a special order from the court. . . . . In a case I recently took to court, a man who had taken care of his partner with dementia at home for a dozen years was abruptly denied visitation with her when a public AB 937 Page 5 guardian conservator deemed his visits upsetting to the conservatee. The conservatee had been placed in a nursing home against her will and the staff were distracted by my client's public displays of affection for his partner and angered by his demands for better care and attention to her health care needs. In turn, the staff requested his visits be prohibited with which the conservator complied. My client was unable to see the love of his life as she sat unvisited and alone in a strange place for several weeks before we were able to get a court hearing and suitable relief in the matter. This Bill Does Not Prevent a Conservator From Protecting an Conservatee from Abuse : This bill in no way limits a conservator from protecting a conservatee from abuse. If the abuse is known from the beginning (and perhaps even part of the reason that the conservatorship was necessary), the court, when granting the petition establishing the conservatorship or temporary conservatorship, can specifically limit contacts with certain individuals if the court finds that necessary. If not restricted up front, the conservator can always later petition the court for further restrictions on the conservatee, if necessary. Alternatively, if not limited by the court establishing and, on a regular basis, reviewing the conservatorship, the conservator can always seek a protective order to protect the conservatee. In particular, Welfare & Institutions Code Section 15657.03 allows an elder or dependent adult, or a conservator, trustee or person acting under a power of attorney, to seek a protective order to protect the elder or dependent adult from abuse. If necessary to protect the elder or dependent adult immediately, a temporary restraining order can be sought under that same code section. ARGUMENTS IN SUPPORT : In support of the bill, as amended, Consumer Advocates for RCFE Reform (CARR) write: Too often CARR sees conserved elders living in residential care facilities for the elderly (RCFEs, aka assisted living) who have had their personal rights restricted by their conservators to such a degree that they have become prisoners - cut off from everyone who loves them, and whom they love. Make no mistake: the extreme isolation these conserved elders experience is tantamount to abuse in its AB 937 Page 6 own right, not to mention detrimental to their long-term health and quality of life. REGISTERED SUPPORT / OPPOSITION : Support (to the bill as proposed to be amended) Consumer Advocates for RCFE Reform One individual Opposition (to the bill as proposed to be amended) None on file Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334