BILL ANALYSIS Ó
AB 2034
Page 1
Date of Hearing: March 25, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2034 (Gatto) - As Amended: March 19, 2014
As Proposed to be Amended
SUBJECT : FAMILY RELATIONS: ADULT CHILD VISITATION AND
CONSERVATORSHIPS
KEY ISSUES :
1)Should A NEW COURT PROCESS BE CREATED TO ALLOW ADULT CHILDREN
TO SEEK visitation with THEIR PARENT IF SUCH VISITS ARE BEING
DENIED DESPITE THE PARENT'S DESIRE TO VISIT WITH THEIR
CHILDREN?
2)SHOULD A CONSERVATOR BE REQUIRED TO NOTIFY RELATIVES WHEN THE
CONSERVATEE DIES OR IS ADMITTED TO THE HOSPITAL?
SYNOPSIS
This bill is in response to several high profile instances where
adult children were reportedly denied visitation with their
ailing parent because of the contentious relationship between
the children and the ailing parent's spouse. California law -
both statutory and case law - currently provides little guidance
on how to address these difficult situations. While it is hoped
that most of these family conflicts can be resolved without
recourse to the courts, supporters argue that some conflicts
cannot. This bill creates a new judicial remedy to resolve
these family disputes and, according to the author, gives
"justice to adult children separated from their parents."
The bill seeks to help adult children of infirm parents in
several ways. First, if the parent is already the subject of a
conservatorship, this bill requires the conservator to notify
close relatives when the person dies or is hospitalized.
Second, this bill establishes a new legal procedure to allow
adult children to petition the court for visitation with their
parents. The court process includes the involvement of the
probate court investigator who is charged with interviewing the
parent and others in order to determine whether the parent is
competent and whether the parent wants the requested visitation.
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Under the process set forth in the bill, the court can never
prohibit visitation, but could, in certain situations, issue an
order compelling visitation, provided the parent wants the
visit. The bill also amends the statutory Advance Health Care
Directive to allow people an opportunity to list those with whom
they would want to visit and those they would not. This list is
not meant to be an enforceable list that could be used either to
admit or deny those listed to the individual's home, facility or
bedside. It is simply meant to be some indication of what the
person executing the form desires, at least as of the date of
execution of the form.
The bill is supported by the Kasem Cares Foundation because it
fills "a gap in the current law which leaves adult children
without a defined process for securing the right to visit their
adult parents with whom they have maintained a loving
relationship. . . . As a practical matter a child has little
choice under current law but to seek a conservatorship over the
parent against the second spouse's objection. That is not only
more of a remedy than is needed for visitation, but it is a
difficult and expensive case to make."
The bill is opposed by California Advocates for Nursing Home
Reform (CANHR), which argues that while the bill purports to
expand visitation rights, the process "actually restricts them
by implying that a court order is needed in order to visit an
adult who is not objecting to visitation but has had visitation
prohibited by some third party." CANHR also opposes expanding
the Advance Health Care Directive to include desired and
undesired visitors: "Asking a principal to list people they
would or would not want to see, ten or twenty years in advance
of an incapacitating event, seems like a perilous venture.
Amicable feelings for friends and family ebb and flow while
choices made long ago ? tend to endure."
SUMMARY : Establishes a court process to allow adult children
to petition to visit their parents and requires conservators to
notify relatives when conservatees die or are hospitalized.
Specifically this bill :
1)Requires a conservator of the person to notify specified
relatives of the conservatee when the conservatee dies or is
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admitted to a hospital for three days or more. If the
conservatee dies, requires the conservator to inform the
relatives of any funeral arrangements and the conservatee's
final resting place.
2)Creates a court procedure to allow an adult child to petition
the court to compel visitation with his or her parent if that
parent does not have a conservator. Requires notice of the
hearing to be provided to specified relatives.
3)Prior to a hearing on the petition in # 2), above, requires
the court investigator to:
a) Interview the proposed visitee (the parent sought to be
visited), the petitioners, relatives of the proposed
visitee within the first degree, and, if practical,
neighbors and close friends;
b) Inform the proposed visitee of the petition;
c) Determine whether the proposed visitee has capacity to
consent to the visitation;
d) Determine whether the proposed visitee desires the
requested visitation; and
e) Report in writing to the courts and mail the report,
which is required to be kept confidential, to the
petitioner, his or her attorney, and relatives within the
first degree, as provided.
4)Requires the court, in ruling on a petition by an adult child
to compel visitation with a parent, to determine if the
proposed visitee has sufficient capacity to make a knowing and
intelligent visitation decision.
a) If the court finds that proposed visitee has capacity
and desires the visitation, requires the court to grant the
visitation, unless the court finds that such visitation is
not in the proposed visitee's best interest. If the
proposed visitee has capacity, but does not desire the
visitation, provides that the court may not grant the
visitation.
b) If the court finds that the proposed visitee lacks the
capacity to make the decision, then the court must
determine if the proposed visitee would want the
visitation. In determining that, the court must consider:
(i) The history of the relationship between the parent and
the adult child; (ii) any statement made by the parent
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expressing his or her desire to have visitation with the
adult child; (iii) any estate planning document that
expresses an opinion on visitation; and (iv) the court
investigator's report, discussed in # 3), above.
c) Provides that any capacity determination made as part of
the visitation determination may not be cited as evidence
in any other legal proceeding.
5)Set forth procedures for bringing a petition to compel
visitation with a parent, including the appropriate venue for
such a proceeding, what must be included in the petition, and
notice requirements.
6)Provides that the court has continuing jurisdiction to revoke
or modify any visitation order.
7)Adds to the statutory Advance Health Care Directive form a
section allowing the person executing the document, if that
person so chooses, to list those with whom that person would
like to visit and those with whom he or she would not. States
in the instructions to the Advance Health Care Directive that
the list is only evidence of some of the people with whom the
person executing the document, at the time of execution, would
want or not want to visit. Provides that the list does not
give the agent under the advanced directive or any facility
any additional power to allow or disallow visitors.
EXISTING LAW :
1)Allows the 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). Requires the court investigator
to personally interview the proposed conservatee prior to the
hearing and make specified determinations. (Probate Code
Section 1800 et seq. Unless stated otherwise, all further
statutory references are to that code.)
2)Allows the court, upon showing of good cause, to appoint a
temporary conservator or guardian to serve pending the
appointment of a permanent conservator or guardian for a
limited period of time, with five days' notice, but such
notice may be waived by the court for good cause. Unless the
court orders otherwise, provides the temporary conservator or
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guardian 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)Provides that a conservator of the person has the care,
custody and control of the conservatee. However, provides
that this control does not extend to the 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. (Section
2351.)
4)Requires conservator to file a notice of change of residence
with the court, served on specified individuals, within 30
days of a change of the ward or conservatee's residence.
Requires the conservator to include in the notice a
declaration that the change in residence is the least
restrictive alternative available and that the change is in
the best interests of the conservatee. (Section 2352.)
5)Allows a petition to be filed to determine if a patient has
the capacity to make a health care decision and, if the
patient is unable to consent, to appoint a person to make the
health care decision, as provided. (Section 3200 et seq.)
6)Provides a statutory Advance Health Care Directive form.
(Section 4700 et seq.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill is in response to several high profile
instances where adult children were denied visitation with their
ailing parent because of the contentious relationship between
the children and the ailing parent's spouse. The author
explains the need as follows:
As divorce and remarriage become more prevalent in today's
society, there is a greater possibility of conflicts
between a second spouse and children from a first marriage,
for any number of reasons. These conflicts can become very
contentious when a parent is incapacitated, enters into a
conservatorship and the current spouse cuts off access
between the parent and children from a previous marriage.
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Even more contentious are instances where there is no
conservatorship in place. Currently, the laws provide all
rights relating to the care of loved ones to spouses, which
leaves children without a legal avenue to arrange
visitations with their ailing parents, to receive notice of
hospitalizations or the death of a parent, or to be
provided information regarding the burial of a parent.
There is no legal process to settle such matters such as
exists with children in divorce cases.
This was the case for Catherine Falk, the daughter of actor
Peter Falk. Mr. Falk divorced Catherine's mother when she
was 6 years old and remarried the following year. For 30
years, Mr. Falk maintained a loving relationship with
Catherine despite conflicts with his second spouse. In
2008, Mr. Falk became completely incapacitated as a result
of advanced dementia. Mrs. Falk, however, failed to inform
Mr. Falk's children of his condition and refused to allow
his children to visit their ailing father.
A similar situation has presented itself with the family of
radio icon Casey Kasem, who is gravely ill and has left the
public eye. Kasem's daughters, Kerri and Julie Kasem, were
barred by their stepmother from seeing their ailing father
after regularly seeing him for more than 30 years. Julie's
lawyer advised her that the courts have no jurisdiction to
grant visitation rights, so she undertook the expensive and
difficult process of petitioning for a conservatorship
under a medical power of attorney Casey Kasem had given to
Julie's physician husband.
California law - both statutory and case law - currently
provides no guidance on how to address these cases. Other state
courts that addressed similar situations have found that adult
children have a right to visit their infirm parents if the
parents' consent to the visitation. (See, e.g., Granger v.
Johnson (1997) 367 A.2d 1062 (RI); Smith v. Markham (1996) 41
Va. Cir. 166.)
Under California law, the only legal option available to an
adult child who is denied visitation with his or her parent
(other than seeking help from adult protective services, which
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will not get involved in a family dispute where the parent is
not being abused) is to seek a conservatorship. In the absence
of a procedure to seek visitation, supporters report that in
some cases, adult children have sought conservatorships of their
parents simply to be able to visit with them. Certainly, it is
not in the best interest of, particularly, the parents, but also
the courts to seek highly restrictive and expensive
conservatorships, which appropriately require significant court
oversight, just to secure visitation. A conservatorship is a
far-reaching step that transfers many legal rights from the
adult conservatee to the conservator. It is a drastic step
simply to secure visitation. While it is highly desirable for
these cases to be resolved outside the court system, the author
and supporters argue that in some instances such resolution is
impossible. They argue that there is no alternative but to seek
resolution in court. This bill provides families with such a
process.
New Court Process for Adult Children to Seek Visitation With
Their Parents : The key part of the bill is the establishment of
a new legal process to allow adult children to petition to visit
with their parents. This bill provides a process for an adult
child to seek visitation with his or her parent. However, there
is no right for adult children to visit with their parents if
the parents do not want the visit - and this bill does not
create such a right. It simply creates a process to determine
the adult's wishes and then seeks to honor those wishes with a
court order. The process is modeled, at least in part, on the
existing process to make health care decisions for adults who do
not have a conservator but who otherwise may lack the capacity
to make such decisions for themselves. (Section 3200 et seq.)
It is important to note that this bill does not seek to create a
process to make it harder for would-be visitors to see their
loved ones. Adults - whether they are in their own home or in a
facility - can choose to visit with whomever they want, and they
cannot be denied that right. Even adults who are conserved can
visit with the friends and loved ones of their choosing, absent
a court order to the contrary. This bill does not in any way
seek to limit those visits.
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The Petition: The process set forth in the bill begins when an
adult child files a petition for visitation. The bill provides
that the appropriate venue for the action is the county in which
the proposed visitee (the parent with whom visitation is sought)
resides, whether permanently or temporarily. The petition must
set forth:
The condition of the proposed visitee's health, to the
extent known;
The proposed visitation that is to be considered;
The efforts made to obtain visitation;
The deficit or deficits, if any, in the proposed
visitee's mental functions and the link between the deficit
or deficits and the proposed visitee's inability to respond
knowingly and intelligently to queries about the requested
visitation; and
The names and addresses, so far known, of the proposed
visitee's relatives within the second degree.
The petition must be personally served on the parent and his or
her attorney, and a copy mailed to his or her spouse or domestic
partner and relatives within the second degree, similar to the
notice requirements for the health care decision action. As
currently drafted, the notice is not required to be served on
the parent's caregiver, if this person is not a close relative,
or the parent's housemates, again assuming they are not close
relatives. This lack of notice and opportunity to participate
in the court hearing could raise due process and enforcement
issues. The author has agreed to work with all interested
stakeholders to address this important issue and has agreed to
bring the bill back to this Committee should it change
significantly from its current form or should any constitutional
questions remain.
Investigation by Probate Court Investigator: Since the court
process is designed to determine the parent's wishes and then
help carry out those wishes, the bill helps determine those
wishes by requiring the probate investigator - who reviews each
proposed conservatorship - to investigate the petition. The
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probate investigator is required to interview the parent, the
petitioners, the parent's relatives within the first degree,
and, if practical, neighbors and close friends. The
investigator is then required to determine whether the parent
has capacity to consent to the visitation and whether he or she
wants the requested visitation. Finally, the bill requires that
the investigator report the findings in writing to the courts
and, prior to the hearing, mail that report, which is required
to be kept confidential, to the petitioner, his or her attorney,
and relatives of the proposed visitee. In order to reduce the
workload that could be caused by particularly vexatious family
members, the court investigator may not have to perform another
investigation if one was done within the last year and the court
finds there is good cause not to do another investigation.
The Court Order: The order established by this bill is an order
to compel visitation, not an order to deny visitation. The
court, when ruling on a motion for visitation by an adult child,
must first determine if the parent has sufficient capacity to
make a knowing and intelligent visitation decision. However, to
protect against this action being the basis of any future
action, the bill specifically provides that any capacity
determination made as part of the visitation determination
cannot be cited as evidence in any other legal proceeding.
If the court finds that parent with whom visitation is sought
has capacity and wants the visitation, the bill requires that
the court grant the visitation, unless the court finds that
visitation with the adult child is not in the parent's best
interest. Such an order would certainly not stop the parent
from visiting with his or her children. It would simply prevent
the court from compelling that visit. If the court finds that
the parent with capacity does not want to visit with his or her
adult child, the court would be prevented from ordering the
visitation. Again, the parent could still decide to visit with
that child. The court would just be prohibited from requiring
such visitation, but could not issue an order prohibiting the
visit.
If the court finds that the parent lacks the capacity to make a
knowing and intelligent visitation decision, then the court is
required to determine if the parent wants the visitation. To
determine that, the court must consider:
The history of the relationship between the parent and
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the adult child;
Any statement made by the parent expressing his or her
desire to have visitation with the adult child;
Any estate planning document that expresses an opinion
on visitation; and
The court investigator's report.
If the court finds that the parent wants to visit with his or
her adult child, the court is required to grant reasonable
visitation, provided the court determines that visitation is in
the parent's best interest. If not, the court may not compel
the requested visitation. Again, this does not prevent the
parent from visiting with his or her children. It simply
prevents the court from requiring such visitation if the court
determines that it is not in the parent's best interest. Again,
this is not the same as an order prohibiting the visit.
Concerns have been raised that allowing the court to order a
competent adult to visit with anyone - even someone with whom
the adult requests visitation - implicates significant
constitutional issues. As a general matter, adults have the
freedom to associate with whomever they choose. It is important
to note that this bill does not seek to limit with whom a
competent adult may visit, and the process set forth in this
bill will never result in an order prohibiting visitation, but
only, if the court determines that is what the parent wants, a
possible order compelling the visitation. The author states
that he is committed to continue working with all interested
stakeholders to ensure the proposed new court process functions
appropriately and meets constitutional requirements. As noted
above, the author has also agreed to bring the bill back to this
Committee should it change significantly from its current form
or should any constitutional questions remain.
Continuing Jurisdiction: The bill provides that the court in
which the petition was filed has continuing jurisdiction to
revoke or modify any visitation order made under the bill,
provided a new petition is filed and noticed in the same manner
as the original petition.
Bill Provides the Ability for Individuals to Provide Guidance as
to Whom They Want to Visit With and Whom They Do Not : The court
visitation petition process, discussed above, is based on the
court determining whether the parent actually wants to visit
with his or her adult children. For parents who lack capacity,
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it may be hard for the court and the probate investigator to
determine their true wishes. To make it easier to determine
those wishes, the bill allows individuals to list those with who
they would like to visit and those with whom they would not like
to visit in their Advance Health Care Directive. As recently
amended, this is not meant to be an enforceable list and one
that could be used either to admit or deny those listed to the
individual's residence, facility or bedside. Moreover, as
recently amended, it is not meant to give the agent for health
care decisions any additional powers, or be anything the agent
should, or even could, seek to enforce. It is simply meant to
be some indication of what the person executing the form
desires, at least as of the date of execution of the form.
Bill Creates New Requirements for Conservators to Keep Relatives
Informed About the Condition of the Conservatee : 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. Just last year, the Legislature
passed AB 937 (Wieckowski), Chap. 127, Stats. 2013, which
clarified that, unless limited by court order, a conservatee
retains his or her personal rights, including the right to
receive visitors, personal mail and telephone calls.
If an adult child, or any other person, attempts to visit a
conservatee, but is denied access, that person has the ability
to go to court and challenge the actions of the conservator.
Thus, there is no need to establish a special process to allow
for visitation when a person is conserved, and this bill does
not do so.
However, while the conservator has the obligation to notify
relatives when the conservatee is moved, there is currently no
requirement that the conservator notify the same relatives if
the conservatee is hospitalized or dies. This bill requires
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that the conservator notify specified relatives when the
conservatee dies or is admitted to a hospital for at least three
days. The relatives specified in the bill are the same
relatives who must today be notified when the conservatorship is
first sought and when the conservatee is moved. While the
notification proposed by the bill is an additional duty on the
conservator, it is limited to truly significant notifications -
death or serious hospitalization of the conservatee. In fact,
some have expressed surprise that this is not already one of the
conservator's duties.
Author's Amendment : The bill currently uses a term to describe
hospitals that is not used elsewhere in the code. To ensure
there is no confusion about what is meant by hospital, the
author proposes to amend the bill to properly define hospital as
follows:
On page 2, line 5, delete "medical facility for acute care" and
insert:
general acute care hospital, as defined in Section 1250 of the
Health & Safety Code
ARGUMENTS IN SUPPORT : The Kasem Cares Foundation strongly
supports the bill because it fills "a gap in the current law
which leaves adult children without a defined process for
securing the right to visit their adult parents with whom they
have maintained a loving relationship. Given the widespread
incidence of divorce and remarriage in our society, there are
increasing possibilities for conflict between the second spouse
and the children of the first marriage. These conflicts can
become very painful when the second spouse refuses to let the
children even occasionally visit their parent - even when the
parent desires such visits. As a practical matter a child has
little choice under current law but to seek a conservatorship
over the parent against the second spouse's objection. That is
not only more of a remedy than is needed for visitation, but it
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is a difficult and expensive case to make. We think AB 2034
strikes the appropriate balance by creating a right to petition
the court for visitation, and granting the court the authority
to have a court investigator interview the parent to ascertain
his or her wishes regarding the proposed visitation. If the
parent does not want visitation, or if the court decides
visitation is not in the best interests of the parent, the case
is closed. However, if the parent wants visitation, the court
can order it in a way that is not unnecessarily intrusive for
the second spouse."
ARGUMENTS IN OPPOSITION : California Advocates for Nursing Home
Reform (CANHR) strongly opposes the bill, arguing that while the
bill purports to expand visitation rights, the process "actually
restricts them by implying that a court order is needed in order
to visit an adult who is not objecting to visitation but has had
visitation prohibited by some third party." CANHR continues:
AB 2034 ill-advisedly overturns California's presumption in
favor of visitation by implying that anyone may prohibit
visitation with an adult, even when that adult specifically
states they want to be visited. By creating a petition
process to vindicate rights without including any provision
for punishing those who wrongfully bar visits (there's not
even a fee-shifting provision for visitors who are granted
their petition), AB 2034 contributes to the idea that
visitors need to go to court whenever someone has denied
visitation. While the bill does not require such
petitions, in our experience, caregivers and law
enforcement officers will err on the side of caution and
prohibit visits whenever there is any question about
visitation rights and tell the proposed visitor to go to
court.
CANHR also raises concerns about listing names of desired and
undesired visitors in the statutory Advance Heath Care Directive
(AHCD):
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Giving principals a list for approved and disapproved
potential visitors is highly problematic. Myriad studies
show that opinions about decisions typically made in AHCDs,
such as end-of-life care options, evolve over time, so that
preferences in the document often do not reflect the
principal's most recent thinking in the matter. Asking a
principal to list people they would or would not want to
see, ten or twenty years in advance of an incapacitating
event, seems like a perilous venture. Amicable feelings
for friends and family ebb and flow while choices made long
ago in AHCDs tend to endure.
REGISTERED SUPPORT / OPPOSITION :
Support (to current version of the bill)
Kasem Cares Foundation
National Association of Social Workers
Opposition (to current version of the bill)
California Advocates for Nursing Home Reform
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334