BILL ANALYSIS Ó
AB 937
Page 1
ASSEMBLY THIRD READING
AB 937 (Wieckowski)
As Amended May 8, 2013
Majority vote
JUDICIARY 8-1
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|Ayes:|Wieckowski, Wagner, | | |
| |Alejo, Chau, Dickinson, | | |
| |Garcia, Muratsuchi, Stone | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Maienschein | | |
| | | | |
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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.
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).
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.
3)Provides, unless limited by the court, the conservator with
care, custody, and control of the conservatee.
4)Requires a conservator or guardian to use ordinary care and
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diligence in managing the estate.
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.
6)Allows a court to issue a protective order on behalf of an
elder or dependent adult.
FISCAL EFFECT : None
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.
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.
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
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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
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.
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 guardian conservator deemed his
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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 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 and 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.
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.
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Make no mistake: the extreme isolation these
conserved elders experience is tantamount to abuse
in its own right, not to mention detrimental to
their long-term health and quality of life.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0000388