BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 937 (Wieckowski)
As Amended May 8, 2013
Hearing Date: June 11, 2013
Fiscal: No
Urgency: No
TMW
SUBJECT
Conservators and Guardians: Personal Rights of Conservatees
DESCRIPTION
This bill would clarify that a conservatee retains personal
rights, including, but not limited to, the right to receive
visitors, telephone calls, and personal mail, unless
specifically limited by court order.
BACKGROUND
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 (conservatee) financial
matters. If the adult is unable to manage his or her medical
and personal decisions, a conservator of the person may be
appointed. Similarly, a guardian of the estate or person may be
appointed for a minor child (ward).
When a conservator is appointed, the conservator is charged with
the care, custody and control of the conservatee. However, the
court determines the powers and duties of the conservator and
may limit the conservator's powers and duties according to the
needs of the conservatee. The court also determines the powers
and duties retained by the conservatee for his or her own care.
This bill would clarify that, unless specifically limited by the
court, a conservatee retains personal rights, including, but not
limited to, the right to receive visitors, telephone calls, and
personal mail.
(more)
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CHANGES TO EXISTING LAW
Existing law authorizes a court to appoint a conservator of the
person to act on behalf of a person (conservatee) who is unable
to provide for his or her own personal needs or to appoint a
conservator of the estate to act on behalf of a conservatee who
is incapable of managing his or her own property or other
financial assets. (Prob. Code Sec. 1800 et seq.)
Existing law authorizes the appointment of a temporary
conservator to act on behalf of the conservatee pending the
appointment of a permanent conservator. Unless the court orders
otherwise, existing law provides the temporary conservator with
only those powers and duties that are necessary to provide for
the temporary care of the conservatee and to preserve and
protect the property of the conservatee from loss or injury.
(Prob. Code Sec. 2250.)
Existing law provides the conservator with the care, custody and
control of the conservatee, unless the court determines that it
is appropriate in the circumstances of the particular
conservatee; the court may limit the powers and duties of the
conservator by an order, which may be subsequently modified or
revoked, stating the specific power that the conservator has or
does not have with respect to the conservatee and reserving
specified powers to the conservatee. (Prob. Code Sec. 2351.)
This bill would clarify that, although a conservator has the
care, custody, and control of the conservatee, this control does
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.
COMMENT
1. Stated need for the bill
The author writes:
The existing Probate Code is silent on any limitations a
conservator has. The result is that many conservators and
others incorrectly determine that the phrase "has the care,
custody, and control of" to be absolute control over the
conservatee. They then use their incorrect belief of absolute
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control to completely isolate conservatee from the outside
world. No visitors, no phone calls, no mail from life
partner, family, friends, neighbors, clergy, and/or advocates.
AB 937 clarifies the Probate Code to state that in a
conservatorship, the conservatee still retains personal rights
such as the right to receive visitors, telephone calls and
mail, unless these rights are limited by court order or need
to be limited to protect the conservatee from abuse.
2. Clarifying conservatee's personal rights
This bill would clarify that a conservatee retains personal
rights, including, but not limited to, the right to receive
visitors, telephone calls, and personal mail, unless
specifically limited by court order. Existing law provides the
conservator with the care, custody and control of the
conservatee, unless the court determines that it is appropriate,
in the circumstances of the particular conservatee, to limit the
scope of the conservator's powers and duties. (Prob. Code Sec.
2351.)
Proponents, California Advocates for Nursing Home Reform and the
Consumer Advocates for RCFE Reform, argue that this bill would
resolve a growing problem where conservators, believing they
have absolute care, custody, and control over the conservatee,
are isolating conservatees and restricting the conservatees'
access to visitors, phone calls and mail. Linda Kinkaid, an
individual in support of this bill and also referred to in an
article below, provided the following personal example of the
need for this bill:
My mother, Carol Hahn in San Bernardino County, was isolated
by her conservator for fifteen months in 2010 and 2011. The
conservator allowed no visitation and severely restricted
phone calls. Mom's right to visitation was finally restored
by a restraining order against continued isolation. That
effort cost family $70K in legal fees. The cost to my mom was
far greater. During the time she was isolated, Mom lost her
memories of loved ones and she lost the ability to walk.
I soon learned of other victims of the same type of abuse.
The Santa Clara County Public Guardian isolated Gisela Riordan
and Lillie Scalia beginning in 2010. Gisela was allowed no
visitors, phone calls, or mail for two years. Lillie was
completely isolated from family for one year; then she was
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allowed some limited visitation the second year. Personal
rights were restored to Gisela and Lille as a result of media
coverage by ABC7 in San Francisco. Lillie has been returned
to her home, and Gisela is now allowed visitors. Without
media coverage, both women would likely still be prisoners.
The San Joaquin County Public Guardian isolated Maria Jordanou
from her husband and son for the last month of her life in
2012. Maria died believing that her family had abandoned her.
It is crucial that our society not allow these heinous abuses
of our most vulnerable citizens. Carol Hahn, Gisela Riordan,
Lillie Scalia, and Maria Jordanou were not criminals. Yet,
they enjoyed fewer freedoms than convicted felons.
Under existing law, the conservatee's rights are delineated in
the Judicial Council of California form entitled "Notice of
Conservatee's Rights." This form must be provided by the
appointed conservator to the conservatee's spouse or domestic
partner, and the relatives of the conservatee within the second
degree, within 30 days after an Order Appointing a Probate
Conservator has issued. (Prob. Code Secs. 1821(b), 1830(c).)
This form, which was developed by the Probate and Mental Health
Advisory Committee of the Judicial Council of California and
submitted for public comment, contains eight specified rights
retained by the conservatee after appointment of a conservator
unless the courts limit or eliminate them. (See Probate:
Statement of Conservatee's Rights (adopt form GC-341 and approve
form GC-341(MA)) (May 10, 2007) Judicial Council of California
[as of June 3,
2013].) These rights include receiving personal mail and visits
from family and friends, voting, marrying, and making personal
medical decisions. The form also provides a general statement
of rights of the conservatee, which includes that 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 as
possible consistent with the wishes of the conservatee as
possible under the circumstances so that the conservatee may
function at the highest level his or her ability permits."
(Notice of Conservatee's Rights, Form No. GC-341, Judicial
Council of California, pg. 1.)
Despite the express statement of rights in the Judicial Council
form, the above personal accounts illustrate that conservators
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may not fully understand the rights retained by the conservatee.
This bill seeks to further clarify the rights of the
conservatees, including the right to receive visitors, telephone
calls, and personal mail, unless specifically limited by court
order. Providing clarified rights retained by the conservatees
would better protect the conservatees while providing critical
information to the conservators of the potential limitations on
their powers over the conservatees.
It is important to note that this bill would not alter the
conservator's ability to protect the conservatee from abuse
because the conservator would still have the ability to seek a
court order to limit the conservatee's contact with abusive
individuals. Arguably, this bill would encourage conservators
to request the court to provide specificity in the
conservatorship order regarding the conservator's powers and
duties to protect the conservatee based on the history of the
abuse the conservatee has already experienced or could
experience based upon the conservatee's abilities and
capacities.
3. Oppositions concerns
The State Association of Public Administrators, Public
Guardians, and Public Conservators (SAPA), in opposition, argues
that this bill "creates a difficult situation where a public
conservator or guardian cannot prevent abusers and predators
that may not have been listed in the original court order from
visiting the conservatee. AB 937 fails to properly balance a
conservatee's personal rights to receive visitors and the need
to protect them from abuse. . . . Our client's concern with AB
937 is that a conservator would have to wait for specific court
authority before denying an abusive individual visitation rights
to a conservatee. Meanwhile, the conservatee must continue to
suffer at the hands of their abuser until the court acts." SAPA
states that it would support changes to existing law that allow
conservators to take immediate action to prevent abuse but
require the courts to rule in a timely manner if such action is
appropriate. Furthermore, SAPA would support a quicker court
appeals process, whereby an individual denied visitation rights
could get their appeal heard by the court in a timely fashion.
In response to this concern, the author states that this bill
would clarify what many believe the law already requires and
this bill clarify existing law to prevent conservators from
unilaterally prohibiting visitation. Furthermore, the author
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argues that "the arguments that the bill would somehow prevent
good conservators from acting immediately to stop abuse of a
conservatee are overblown. Besides obviously calling 911 if
there is an immediate threat to health and safety, the elder
abuse restraining order process is about as easy and quick a
court process as can be found."
Support : California Advocates for Nursing Home Reform; Consumer
Advocates for RCFE Reform; two individuals
Opposition : State Association of Public Administrators, Public
Guardians, and Public Conservatees
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 1950 (Pacheco, Ch. 565, Stats. 2000), among other things,
limited the power and duty of a guardian or conservator to hire
or refer any business to an entity in which he or she has a
financial interest unless the court so ordered.
AB 759 (Friedman, Ch. 79, Stats. 1990) revised and recast the
Probate Code and continued, without modification, the prior
statute regarding the powers and duties of the conservator or
guardian.
Prior Vote :
Assembly Committee on Judiciary (Ayes 8, Noes 1)
Assembly Floor (Ayes 68, Noes 3)
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