BILL ANALYSIS Ó
AB 2034
Page 1
ASSEMBLY THIRD READING
AB 2034 (Gatto)
As Amended May 23, 2014
Majority vote
JUDICIARY 10-0 APPROPRIATIONS 17-0
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|Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Bigelow, |
| |Alejo, Chau, Dickinson, | |Bocanegra, Bradford, Ian |
| |Garcia, Gorell, | |Calderon, Campos, |
| |Maienschein, Muratsuchi, | |Donnelly, Eggman, Gomez, |
| |Stone | |Holden, Jones, Linder, |
| | | |Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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, as soon as reasonably
possible, to notify specified relatives of the conservatee
when the conservatee dies or has been hospitalized for three
days or more. If the conservatee dies, requires the
conservator, as soon as reasonably possible, to inform the
relatives of any funeral arrangements and the conservatee's
final resting place.
2)Makes legislative findings that every adult has the right to
visit with whomever he or she so chooses, unless a court has
specifically ordered otherwise.
3)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.
4)Requires, prior to a hearing on the petition in 2) above, the
court investigator to:
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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.
5)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 the proposed visitee has
capacity and desires the visitation, requires the court to
grant the visitation. 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
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 4) 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.
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6)Sets 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.
7)Provides that the court has continuing jurisdiction to revoke
or modify any visitation order.
8)Provides that the court shall assess each adult child who
files for visitation for any investigation or review conducted
by a court investigator and may order reimbursement to the
court from the adult child, unless the court finds that all or
part of the assessment would impose a hardship on that adult
child.
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.
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
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.
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.
4)Requires conservator to file a notice of change of residence
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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.
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, estimate annual General Fund costs to the trial
courts of $190,000 to $380,000 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. Moreover, 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)Moreover, 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)Finally, the Judicial Council indicates there would likely be
offsetting savings to the extent that some of these petitions
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for visitation would instead have been filed seeking
conservatorship. Thus above costs are reduced by an assumed
10%. Costs will also be offset by the reimbursement of court
investigator's costs, assumed in one-half of cases, which will
reduce costs by about $30,000 to $60,000.
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. 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
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.
The key part of the bill is the establishment of a new legal
process to allow adult children to petition to visit with their
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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.
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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0003667