BILL ANALYSIS                                                                                                                                                                                                    






                             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.  
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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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