BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 937
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          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