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.
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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.
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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
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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 order or 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
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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
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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