Amended in Assembly March 11, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2034

Introduced by Assembly Member Gatto

February 20, 2014

An act to begin insert amend Section 4701 of, to end insert add Section 2361 to begin insert , and to add Part 7.5 (commencing with Section 3250) to Division 4 of, end insert the Probate Code, relating to begin delete conservators end delete begin insert family relations end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 2034, as amended, Gatto. begin delete Conservatorships. end delete begin insert Family relations: family visitation and conservatorships. end insert

begin insert

(1) Existing law establishes procedures by which a court may grant reasonable visitation rights to a parent of a minor child, unless it is shown that the visitation would be detrimental to the best interests of the child. Existing law requires the court, when determining the best interest of the child, to consider, among other factors, the health, safety, and welfare of the child. Existing law authorizes an adult having capacity to give a written advance health care directive and establishes a statutory advance health care directive form.

end insert begin insert

This bill would establish procedures by which a court may grant reasonable visitation rights to an adult child if a proposed visitee, as defined, expresses a desire for that visitation, unless the court determines that the visitation is not in the best interests of the proposed visitee. The bill would require a court investigator to prepare a report that contains, among other things, interviews of specified individuals, a determination of whether the proposed visitee has the capacity to consent to the requested visitation, and a determination of whether the proposed visitee desires the proposed visitation. The bill would make the court investigator’s report confidential and would make legislative findings and declarations regarding the privacy interests affected by the investigations that are protected by the bill. The bill would direct the court to consider, among other things, the history of the relationship between the proposed visitee and the adult child, any power of attorney or estate planning document that expresses an opinion on visitation, and the report prepared by the court investigator. This bill would revise the statutory advance health care directive form to authorize a person to establish a list of people who he or she would like, and would not like, to have visitations with.

end insert begin delete

Existing

end delete

begin insert (2) end insert begin insert   end insert begin insert Existing end insert law requires a conservator of a person to be responsible for the care, custody, control, and education of a conservatee, except where the court, in its discretion, limits the powers and duties of the conservator, as specified.

This bill would require a conservator to inform the relatives of a conservatee whenever a conservatee dies or is admitted to a medical facility for acute medical treatment begin insert for a period of 3 days or more end insert and would require the conservator, in the event of death of the conservatee, to inform the relatives of any funeral arrangements and the location of the conservatee’s final resting place. begin delete The bill would also declare the intent of the Legislature to create a procedure that would provide reasonable accommodations for adult children who want to visit their parents when that parent may, or may not, be able to express their desire to see his or her children due to the presence of a caretaker who may not be relaying accurate information to the children from their parent. end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

begin delete

SECTION 1.  

It is the intent of the Legislature to create a
procedure that would provide reasonable accommodations for
adult children who want to visit their parents when that parent
may, or may not, be able to express their desire to see his or her
children due to the presence of a caretaker who may not be relaying
accurate information to the children from their parent.

end delete

begin delete SEC. 2. end delete
begin insert SECTION 1. end insert   

Section 2361 is added to the Probate Code, to
read:

2361.  

A conservator shall inform relatives of a conservatee, as
defined in subdivision (b) of Section 1821, whenever a conservatee
dies or is admitted to a medical facility for acute care begin insert for a period
of three days or more end insert . In the case of death, a conservator shall
inform the relatives of any funeral arrangements and the location
of the conservatee’s final resting place.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Part 7.5 (commencing with Section 3250) is added to
Division 4 of the end insert begin insert Probate Code end insert begin insert , to read: end insert

begin insert

 

PART  begin insert 7.5. end insert   Rights of Adult Children and Visitation

 

begin insert 3250. end insert   

As used in this part:

(a) “Proposed visitee” means an adult who is a parent and who
does not have a conservator of the person and for whom a visitation
decision is sought.

(b) “Visitation” means any in-person meeting between a
proposed visitee and his or her adult child.

(c) “Visitation decision” means a decision regarding the
proposed visitee’s visitations, including the following:

(1) Approval or disapproval of any visitation.

(2) The specifics of that visitation, including, but not limited to,
the time, place, and manner of the visitation.

(d) “Adult child” means an individual who is 18 years of age
or older and is related to the proposed visitee biologically, through
adoption, through the marriage or former marriage of the proposed
visitee to the adult child’s biological parent, or by a judgment of
parentage entered by a court of competent jurisdiction.

begin insert 3251. end insert   

(a) A petition may be filed by an adult child to compel
visitation with a proposed visitee.

(b) In ruling on the petition, the court shall determine if the
proposed visitee has sufficient capacity to make a knowing and
intelligent visitation decision.

(c) If the court determines that the proposed visitee has sufficient
capacity to make a knowing and intelligent visitation decision, the
court shall grant reasonable visitation if the proposed visitee
expresses a desire for visitation, unless the court finds that such
visitation is not in the best interests of the proposed visitee.

(d) If the proposed visitee lacks the capacity to make a knowing
and intelligent visitation decision, then the court shall determine
if the proposed visitee would want visitation. In determining
whether or not the proposed visitee would or would not want a
visitation from the petitioner, the court shall consider the following:

(1) The history of the relationship between the proposed visitee
and the petitioner.

(2) Any statements made by the proposed visitee expressing his
or her desire to have a visitation with the petitioner.

(3) Any power of attorney or estate planning document that
expresses an opinion on visitation with the petitioner.

(4) The report of the court investigator prepared pursuant to
Section 3256.

(e) If the court determines that the proposed visitee would want
visitation, the court shall grant reasonable visitation, provided
the court determines that the visitation is in the best interests of
the proposed visitee.

(f) If the court determines that the proposed visitee has sufficient
capacity to make a knowing and intelligent visitation decision and
the proposed visitee expresses that he or she does not desire
visitation then the court shall not grant visitation.

(g) A determination by the court regarding capacity under this
part shall not be cited as evidence in any other legal proceeding.

begin insert 3252. end insert   

The petition may be filed in the superior court of any of
the following counties:

(a) The county in which proposed visitee resides.

(b) The county in which the proposed visitee is temporarily
living.

begin insert 3253. end insert   

The petition shall state, or set forth by a declaration
attached to the petition, all of the following known to the petitioner
at the time the petition is filed:

(a) The condition of the proposed visitee’s health, to the extent
known by the petitioner.

(b) The proposed visitation that is to be considered.

(c) The efforts made to obtain visitation with the proposed
visitee.

(d) The deficit or deficits, if any, in the proposed visitee’s mental
functions listed in subdivision (a) of Section 811 that are impaired,
and an identification of a link between the deficit or deficits and
the proposed visitee’s inability to respond knowingly and
intelligently to queries about the requested visitation.

(e) The names and addresses, so far as they are known to the
petitioner, of the persons specified in subdivision (b) of Section
1821.

begin insert 3254. end insert   

Upon the filing of the petition, the court shall determine
if the proposed visitee has retained an attorney to represent him
or her in the proceeding under this part or if the proposed visitee
plans to retain an attorney for that purpose.

begin insert 3255. end insert   

(a) Not less than 15 days before the hearing, notice of
the time and place of the hearing and a copy of the petition shall
be personally served on the proposed visitee, and the proposed
visitee’s attorney, if any.

(b) Not less than 15 days before the hearing, notice of the time
and place of the hearing and a copy of the petition shall be mailed
to the following persons:

(1) The proposed visitee’s spouse, if any, at the address stated
in the petition.

(2) The proposed visitee’s relatives named in the petition at
each relative’s address stated in the petition.

begin insert 3256. end insert   

Prior to the hearing, the court investigator shall do all
of the following:

(a) Conduct the following interviews:

(1) The proposed visitee.

(2) All petitioners.

(3) The proposed visitee’s spouse or registered domestic partner
and relatives within the first degree.

(4) To the extent practical, neighbors, and, if known, close
friends of the proposed visitee.

(b) Inform the proposed visitee of the contents of the petition.

(c) Determine whether the proposed visitee has the capacity to
consent to the requested visitation.

(d) Determine whether the proposed visitee desires the proposed
visitation.

(e) Report to the court in writing, at least five days before the
hearing, concerning all of the foregoing.

(f) Mail, at least five days before the hearing, a copy of the
report referred to in subdivision (e) to all of the following:

(1) The attorney, if any, for the petitioner.

(2) The attorney, if any, for the proposed visitee.

(3) The spouse, registered domestic partner, and relatives within
the first degree of the proposed visitee, unless the court determines
that the mailing will result in harm to the proposed visitee.

(4) Any other persons as the court orders.

(g) The report required by this section is confidential and shall
be made available only to parties, persons described in subdivision
(f), persons given notice of the petition who have requested this
report or who have appeared in the proceedings, their attorneys,
and the court.

(h) If the court investigator has performed an investigation
within the preceding 12 months and furnished a report thereon to
the court, the court may order, upon good cause shown, that
another investigation is not necessary or that a more limited
investigation may be performed.

begin insert 3257. end insert   

The court in which the petition is filed has continuing
jurisdiction to revoke or modify an order made under this part
upon a petition filed, noticed, and heard in the same manner as
an original petition filed under this part.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 4701 of the end insert begin insert Probate Code end insert begin insert is amended to read: end insert

4701.  

The statutory advance health care directive form is as
follows:

ADVANCE HEALTH CARE DIRECTIVE
(California Probate Code Section 4701)
Explanation

You have the right to give instructions about your own health
care. You also have the right to name someone else to make health
care decisions for you. This form lets you do either or both of these
things. It also lets you express your wishes regarding donation of
organs and the designation of your primary physician. If you use
this form, you may complete or modify all or any part of it. You
are free to use a different form.

Part 1 of this form is a power of attorney for health care. Part 1
lets you name another individual as agent to make health care
decisions for you if you become incapable of making your own
decisions or if you want someone else to make those decisions for
you now even though you are still capable. You may also name
an alternate agent to act for you if your first choice is not willing,
able, or reasonably available to make decisions for you. (Your
agent may not be an operator or employee of a community care
facility or a residential care facility where you are receiving care,
or your supervising health care provider or employee of the health
care institution where you are receiving care, unless your agent is
related to you or is a coworker.)

Unless the form you sign limits the authority of your agent, your
agent may make all health care decisions for you. This form has
a place for you to limit the authority of your agent. You need not
limit the authority of your agent if you wish to rely on your agent
for all health care decisions that may have to be made. If you
choose not to limit the authority of your agent, your agent will
have the right to:

(a) Consent or refuse consent to any care, treatment, service, or
procedure to maintain, diagnose, or otherwise affect a physical or
mental condition.

(b) Select or discharge health care providers and institutions.

(c) Approve or disapprove diagnostic tests, surgical procedures,
and programs of medication.

(d) Direct the provision, withholding, or withdrawal of artificial
nutrition and hydration and all other forms of health care, including
cardiopulmonary resuscitation.

(e) Make anatomical gifts, authorize an autopsy, and direct
disposition of remains.

begin insert

(f) Approve or disapprove any visitations.

end insert

Part 2 of this form lets you give specific instructions about any
aspect of your health care, whether or not you appoint an agent.
Choices are provided for you to express your wishes regarding the
provision, withholding, or withdrawal of treatment to keep you
alive, as well as the provision of pain relief. Space is also provided
for you to add to the choices you have made or for you to write
out any additional wishes. If you are satisfied to allow your agent
to determine what is best for you in making end-of-life decisions,
you need not fill out Part 2 of this form.

Part 3 of this form lets you express an intention to donate your
bodily organs and tissues following your death.

Part 4 of this form lets you designate a physician to have primary
responsibility for your health care.

begin insert

Part 5 of this form lets you establish a list of people who you
would like to have visitations with.

end insert begin insert

Part 6 of this form lets you establish a list of people who you
would not want to have visitations with.

end insert

After completing this form, sign and date the form at the end.
The form must be signed by two qualified witnesses or
acknowledged before a notary public. Give a copy of the signed
and completed form to your physician, to any other health care
providers you may have, to any health care institution at which
you are receiving care, and to any health care agents you have
named. You should talk to the person you have named as agent to
make sure that he or she understands your wishes and is willing
to take the responsibility.

You have the right to revoke this advance health care directive
or replace this form at any time.

 

* * * * * * * * * * * * * * * *
PART 1 POWER OF ATTORNEY FOR HEALTH CARE
(1.1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health care decisions for me:
(name of individual you choose as agent)
(address)  (city) (state)(ZIP Code)
(home phone)		(work phone)
OPTIONAL: If I revoke my agent’s authority or if my agent is not willing, able, or reasonably available to make a health care decision for me, I designate as my first alternate agent:
(name of individual you choose as first alternate agent)
(address)  (city) (state)(ZIP Code)
(home phone)		(work phone)
OPTIONAL: If I revoke the authority of my agent and first alternate agent or if neither is willing, able, or reasonably available to make a health care decision for me, I designate as my second alternate agent:
(name of individual you choose as second alternate agent)
(address)  (city) (state)(ZIP Code)
(home phone)		(work phone)
(1.2) AGENT’S AUTHORITY: My agent is authorized to make all health care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care to keep me alive, except as I state here:
(Add additional sheets if needed.)
(1.3) WHEN AGENT’S AUTHORITY BECOMES EFFECTIVE: My agent’s authority becomes effective when my primary physician determines that I am unable to make my own health care decisions unless I mark the following box. If I mark this box ◻, my agent’s authority to make health care decisions for me takes effect immediately.
(1.4) AGENT’S OBLIGATION: My agent shall make health care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.
(1.5) AGENT’S POSTDEATH AUTHORITY: My agent is authorized to make anatomical gifts, authorize an autopsy, and direct disposition of my remains, except as I state here or in Part 3 of this form:
(Add additional sheets if needed.)
(1.6) NOMINATION OF CONSERVATOR: If a conservator of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able, or reasonably available to act as conservator, I nominate the alternate agents whom I have named, in the order designated.
PART 2 INSTRUCTIONS FOR HEALTH CARE
If you fill out this part of the form, you may strike any wording you do not want.
(2.1) END-OF-LIFE DECISIONS: I direct that my health care providers and others involved in my care provide, withhold, or withdraw treatment in accordance with the choice I have marked below:
◻ (a) Choice Not To Prolong Life
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits, OR
◻ (b) Choice To Prolong Life
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.
(2.2) RELIEF FROM PAIN: Except as I state in the following space, I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death:
(Add additional sheets if needed.)
(2.3) OTHER WISHES: (If you do not agree with any of the optional choices above and wish to write your own, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:
(Add additional sheets if needed.)
PART 3 DONATION OF ORGANS AT DEATH (OPTIONAL)
(3.1) Upon my death (mark applicable box):
◻ (a) I give any needed organs, tissues, or parts, OR
◻ (b) I give the following organs, tissues, or parts only.
(c) My gift is for the following purposes (strike any of     the following you do not want):
(1) Transplant
(2) Therapy
(3) Research
(4) Education
PART 4 PRIMARY PHYSICIAN (OPTIONAL)
(4.1) I designate the following physician as my primary physician:
(name of physician)
(address)  (city) (state)(ZIP Code)
(phone)
OPTIONAL: If the physician I have designated above is not willing, able, or reasonably available to act as my primary physician, I designate the following physician as my primary physician:
(name of physician)
(address)  (city) (state)(ZIP Code)
(phone)
* * * * * * * * * * * * * * * *
begin insert PART 5 VISITATION BY FAMILY AND FRIENDS (OPTIONAL) end insert
begin insert  (5.1) The following person(s) shall have the ability to visit me at my domicile or care facility: end insert
begin insert     end insert
begin insert    (address)  (city) (state)(ZIP Code)  end insert
begin insert     end insert
begin insert (phone) end insert
begin insert     end insert
begin insert    (address)  (city) (state)(ZIP Code)  end insert
begin insert     end insert
begin insert (phone) end insert
begin insert     end insert
begin insert    (address)  (city) (state)(ZIP Code)  end insert
begin insert     end insert
begin insert (phone) end insert
begin insert     end insert
begin insert    (address)  (city) (state)(ZIP Code)  end insert
begin insert     end insert
begin insert (phone) end insert
begin insert PART 6 NON-VISITATION LIST (OPTIONAL) end insert
begin insert  (6.1) The following person(s) shall NOT have the ability to visit me at my domicile or care facility: end insert
begin insert     end insert
begin insert    (address)  (city) (state)(ZIP Code)  end insert
begin insert     end insert
begin insert (phone) end insert
begin insert     end insert
begin insert    (address)  (city) (state)(ZIP Code)  end insert
begin insert     end insert
begin insert (phone) end insert
begin insert     end insert
begin insert    (address)  (city) (state)(ZIP Code)  end insert
begin insert     end insert
begin insert (phone) end insert
begin insert     end insert
begin insert    (address)  (city) (state)(ZIP Code)  end insert
begin insert (phone) end insert
begin insert * * * * * * * * * * * * * * * * end insert
PART begin delete 5 end delete begin insert 7 end insert
begin delete (5.1) end delete begin insert   end insert begin insert (7.1) end insert  EFFECT OF COPY: A copy of this form has the same effect as the original.
begin delete (5.2) end delete begin insert   end insert begin insert (7.2) end insert  SIGNATURE: Sign and date the form here:
(date)		(sign your name)
(address)		(print your name)
(city)     (state)
begin delete (5.3) end delete begin insert   end insert begin insert (7.3) end insert  STATEMENT OF WITNESSES: I declare under penalty of perjury under the laws of California (1) that the individual who signed or acknowledged this advance health care directive is personally known to me, or that the individual’s identity was proven to me by convincing evidence, (2) that the individual signed or acknowledged this advance directive in my presence, (3) that the individual appears to be of sound mind and under no duress, fraud, or undue influence, (4) that I am not a person appointed as agent by this advance directive, and (5) that I am not the individual’s health care provider, an employee of the individual’s health care provider, the operator of a community care facility, an employee of an operator of a community care facility, the operator of a residential care facility for the elderly, nor an employee of an operator of a residential care facility for the elderly.
First witness		Second witness
(print name)		(print name)
(address)		(address)
(city)   (state)		(city)   (state)
(signature of witness)		(signature of witness)
(date)		(date)
begin delete (5.4) end delete begin insert   end insert begin insert (7.4) end insert  ADDITIONAL STATEMENT OF WITNESSES: At least one of the above witnesses must also sign the following declaration:  I further declare under penalty of perjury under the laws of California that I am not related to the individual executing this advance health care directive by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of the individual’s estate upon his or her death under a will now existing or by operation of law.
(signature of witness)		(signature of witness)
PART begin delete 6 end delete begin insert 8 end insert SPECIAL WITNESS REQUIREMENT
begin delete (6.1) end delete begin insert   end insert begin insert (8.1) end insert  The following statement is required only if you are a patient in a skilled nursing facility--a health care facility that provides the following basic services: skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. The patient advocate or ombudsman must sign the following statement:
STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN
I declare under penalty of perjury under the laws of California that I am a patient advocate or ombudsman as designated by the State Department of Aging and that I am serving as a witness as required by Section 4675 of the Probate Code.
(date)		(sign your name)
(address)		(print your name)
(city)   (state)

 

begin insert

begin insert SEC. 4. end insert   

end insert begin insert

The Legislature finds and declares that Section 2 of
this act, which adds Part 7.5 (commencing with Section 3250) to
Division 4 of the Probate Code, imposes a limitation on the public’s
right of access to the writings of public officials and a public
agency within the meaning of Section 3 of Article I of the California
Constitution. Pursuant to paragraph (2) of subdivision (b) of
Section 3 of Article I of the California Constitution, the Legislature
makes the following findings to demonstrate the interest protected
by this limitation and the need for protecting that interest:

end insert begin insert

In order to protect the identities and other privacy interests of
those affected by the court investigations, it is necessary that this
information be kept confidential.

end insert