BILL ANALYSIS Ó
AB 2034
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Date of Hearing: May 7, 2014
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 2034 (Gatto) - As Amended: March 28, 2014
Policy Committee:
JudiciaryVote:10-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill 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)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.
2)Specifies responsibilities of the court investigator, prior to
the hearing on the petition, including interviewing the
proposed visitee and reporting of the investigator's findings
to the court.
3)Provides direction to the court in ruling on the petition
based on determinations made by the court, and provides that
the court has continuing jurisdiction to revoke or modify any
visitation order.
4)Requires a conservator of the person to notify specified
relatives of the conservatee when the conservatee dies or is
admitted to a hospital for three days or more. If the
conservatee dies, the conservator must inform the relatives of
any funeral arrangements and the conservatee's final resting
place.
5)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.
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FISCAL EFFECT
Estimate annual General Fund costs to the trial courts of
$220,000 to $440,000 annually.
1)The bill's petition and investigation process is modeled after
the Omnibus Conservatorship and Guardianship Act of 2006.
Accordingly, the Judicial Council estimates that costs per
case for processing the initial petition and conducting the
investigation and hearing will result in staff resources
costing between about $1,000 and $1,900 per case for what are
expected to be moderately-complex to highly-complex cases. The
number of annual petitions statewide is unknown, but is
expected to be relatively small.
The availability of this petition to allow visitation may help
resolve some disputes prior to any court intervention. If
there are 100 to 200 petitions per year, split evenly between
moderately-complex to highly-complex cases, annual statewide
General Fund costs would be $145,000 to $290,000 for the
initial petition and hearing.
2)As the bill gives the court continuing jurisdiction in these
matters, and given the highly contentious and emotional nature
of these disputes, it is likely that in many cases there will
be multiple motions to modify the initial court order.
Assuming, on average, at least one additional court hearing,
also involving further investigation, on each case, and
assuming costs at the lower end of the scale described above,
these additional procedures would cost from $100,000 to
$200,000 per year.
3)There would likely be offsetting savings to the extent that
some of these petitions for visitation would instead have been
filed seeking conservatorship. Thus above costs are reduced by
an assumed 10%.
COMMENTS
1) Purpose . 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
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ailing parent's spouse.
According to the author, "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. 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."
2) Background . California statute and case law provide
little guidance on how to address the cases this bill
addresses. Other state courts that addressed similar
situations found that adult children have a right to visit
their infirm parents if the parents' consent to the
visitation. Under California law, however, the only legal
option available to an adult child who is denied visitation
with his or her parent is to seek a conservatorship, which
is a far-reaching step that transfers many legal rights
from the adult conservatee to the conservator.
3) Who Can Visit ? The bill also allows individuals to list,
in their Advance Health Care Directive, persons they would
like to visit and persons they would not like to visit.
This is not meant to be an enforceable list that could be
used to admit or deny those listed. Nor is meant to give
the agent for health care decisions additional powers. It
is simply meant to serve as an indication of what the
person executing the form desires, at least as of the date
of execution of the form.
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4) Opposition . The California Advocates for Nursing Home
Reform (CANHR), 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, as
well as the California Long-Term Care Ombudsman
Association, are also concerned about the Advance Health
Care Directive provisions, arguing that will put agents of
such directives in control over visitors for dependent
adults unable to speak for themselves.
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081