BILL NUMBER: AB 314 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 16, 2015
INTRODUCED BY Assembly Member Waldron
FEBRUARY 12, 2015
An act to amend Section 1813 Sections 1826
and 1827.5 of the Probate Code, relating to conservatorship.
LEGISLATIVE COUNSEL'S DIGEST
AB 314, as amended, Waldron. Conservatorship.
Limited conservatorship: developmentally disabled persons.
Existing law establishes a procedure for creating a limited
conservatorship for a person with developmental disabilities. Under
existing law, that procedure requires, among other things, that a
court investigator conduct interviews of a proposed conservatee and
others, review allegations in the petition to create the
conservatorship, determine whether the proposed conservatee is
incapable of completing an affidavit of voter registration, and
report the results of the investigation to the court.
This bill would provide that these requirements do not apply to a
procedure to establish a limited conservatorship for a person with
developmental disabilities when the proposed conservator is a parent
of the proposed conservatee.
Existing law requires that within 30 days after the filing of a
petition for limited conservatorship of a person with developmental
disabilities, the proposed limited conservatee, with his or her
consent, be assessed at a regional center. Existing law requires the
regional center to submit a written report of its findings and
recommendations resulting from that assessment to the court.
This bill would instead authorize, rather than require, the
proposed limited conservatee, with his or her consent, to be assessed
at a regional center for those purposes. The bill would require the
regional center, with the consent of the proposed limited
conservatee, to submit a written report containing findings and
recommendations to the court without an assessment of the proposed
conservatee if the proposed conservatee has been a client of the
regional center for a period of time sufficient for the center to
provide those findings and recommendations without the need for an
additional assessment, and if the proposed conservator is a parent of
the proposed conservatee.
Existing law prohibits the spouse of a proposed conservatee from
petitioning for the appointment of a conservator for a spouse or from
being appointed as conservator of a person or estate of the proposed
conservatee unless the petitioner alleges in the petition for
appointment as conservator, and the court finds, that the spouse is
not a party to an action or proceeding against the proposed
conservatee for legal separation of the parties, dissolution of
marriage, or adjudication of nullity of their marriage.
This bill would make technical, nonsubstantive changes to that
provision.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1826 of the Probate
Code is amended to read:
1826. Regardless Except as provided in
subdivision (t), and regardless of whether the proposed
conservatee attends the hearing, the court investigator shall do all
of the following:
(a) Conduct the following interviews:
(1) The proposed conservatee personally.
(2) All petitioners and all proposed conservators who are not
petitioners.
(3) The proposed conservatee's spouse or registered domestic
partner and relatives within the first degree. If the proposed
conservatee does not have a spouse, registered domestic partner, or
relatives within the first degree, to the greatest extent possible,
the proposed conservatee's relatives within the second degree.
(4) To the greatest extent practical and taking into account the
proposed conservatee's wishes, the proposed conservatee's relatives
within the second degree not required to be interviewed under
paragraph (3), neighbors, and, if known, close friends.
(b) Inform the proposed conservatee of the contents of the
citation, of the nature, purpose, and effect of the proceeding, and
of the right of the proposed conservatee to oppose the proceeding, to
attend the hearing, to have the matter of the establishment of the
conservatorship tried by jury, to be represented by legal counsel if
the proposed conservatee so chooses, and to have legal counsel
appointed by the court if unable to retain legal counsel.
(c) Determine whether it appears that the proposed conservatee is
unable to attend the hearing and, if able to attend, whether the
proposed conservatee is willing to attend the hearing.
(d) Review the allegations of the petition as to why the
appointment of the conservator is required and, in making his or her
determination, do the following:
(1) Refer to the supplemental information form submitted by the
petitioner and consider the facts set forth in the form that address
each of the categories specified in paragraphs (1) to (5), inclusive,
of subdivision (a) of Section 1821.
(2) Consider, to the extent practicable, whether he or she
believes the proposed conservatee suffers from any of the mental
function deficits listed in subdivision (a) of Section 811 that
significantly impairs the proposed conservatee's ability to
understand and appreciate the consequences of his or her actions in
connection with any of the functions described in subdivision (a) or
(b) of Section 1801 and identify the observations that support that
belief.
(e) Determine whether the proposed conservatee wishes to contest
the establishment of the conservatorship.
(f) Determine whether the proposed conservatee objects to the
proposed conservator or prefers another person to act as conservator.
(g) Determine whether the proposed conservatee wishes to be
represented by legal counsel and, if so, whether the proposed
conservatee has retained legal counsel and, if not, the name of an
attorney the proposed conservatee wishes to retain.
(h) (1) Determine whether the proposed conservatee is not capable
of completing an affidavit of voter registration in accordance with
Section 2150 of the Elections Code and may be disqualified from
voting pursuant to Section 2208 of the Elections Code.
(2) The proposed conservatee shall not be disqualified from voting
on the basis that he or she does, or would need to do, any of the
following to complete an affidavit of voter registration:
(A) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150 of the Elections
Code.
(B) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5 of the Elections Code.
(C) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150 of the Elections Code.
(i) If the proposed conservatee has not retained legal counsel,
determine whether the proposed conservatee desires the court to
appoint legal counsel.
(j) Determine whether the appointment of legal counsel would be
helpful to the resolution of the matter or is necessary to protect
the interests of the proposed conservatee in any case where the
proposed conservatee does not plan to retain legal counsel and has
not requested the appointment of legal counsel by the court.
(k) Report to the court in writing, at least five days before the
hearing, concerning all of the foregoing, including the proposed
conservatee's express communications concerning both of the
following:
(1) Representation by legal counsel.
(2) Whether the proposed conservatee is not willing to attend the
hearing, does not wish to contest the establishment of the
conservatorship, and does not object to the proposed conservator or
prefer that another person act as conservator.
(l) Mail, at least five days before the hearing, a copy of the
report referred to in subdivision (k) to all of the following:
(1) The attorney, if any, for the petitioner.
(2) The attorney, if any, for the proposed conservatee.
(3) The proposed conservatee.
(4) The spouse, registered domestic partner, and relatives within
the first degree of the proposed conservatee who are required to be
named in the petition for appointment of the conservator, unless the
court determines that the mailing will result in harm to the
conservatee.
(5) Any other persons as the court orders.
(m) The court investigator has discretion to release the report
required by this section to the public conservator, interested public
agencies, and the long-term care ombudsman.
(n) The report required by this section is confidential and shall
be made available only to parties, persons described in subdivision
(l), persons given notice of the petition who have requested this
report or who have appeared in the proceedings, their attorneys, and
the court. The court has discretion at any other time to release the
report, if it would serve the interests of the conservatee. The clerk
of the court shall provide for the limitation of the report
exclusively to persons entitled to its receipt.
(o) This section does not apply to a proposed conservatee who has
personally executed the petition for conservatorship, or one who has
nominated his or her own conservator, if he or she attends the
hearing.
(p) If the court investigator has performed an investigation
within the preceding six 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.
(q) Any investigation by the court investigator related to a
temporary conservatorship also may be a part of the investigation for
the general petition for conservatorship, but the court investigator
shall make a second visit to the proposed conservatee and the report
required by this section shall include the effect of the temporary
conservatorship on the proposed conservatee.
(r) The Judicial Council shall, on or before January 1, 2009,
adopt rules of court and Judicial Council forms as necessary to
implement an expedited procedure to authorize, by court order, a
proposed conservatee's health care provider to disclose confidential
medical information about the proposed conservatee to a court
investigator pursuant to federal medical information privacy
regulations promulgated under the Health Insurance Portability and
Accountability Act of 1996.
(s) A superior court shall not be required to perform any duties
imposed pursuant to the amendments to this section enacted by Chapter
493 of the Statutes 2006 until the Legislature makes an
appropriation identified for this purpose.
(t) This section shall not apply to a proceeding to establish a
limited conservatorship for a person with developmental disabilities
when the proposed conservator is a parent of the proposed
conservatee.
SEC. 2. Section 1827.5 of the Probate
Code is amended to read:
1827.5. (a) In the case of any a
proceeding to establish a limited conservatorship for a person with
developmental disabilities, within 30 days after the filing of a
petition for limited conservatorship, a proposed limited conservatee,
with his or her consent, shall may be
assessed at a regional center as provided in Chapter 5 (commencing
with Section 4620) of Division 4.5 of the Welfare and Institutions
Code. The regional center shall submit a written report of its
findings and recommendations to the court. If the proposed
conservatee has been a client of the regional center for a period of
time sufficient for the center to provide those findings and
recommendations without the need for an additional assessment, and if
the proposed conservator is a parent of the proposed conservatee,
the regional center shall, with the consent of the proposed limited
conservatee, submit the written report containing findings and
recommendations to the court without an assessment of the proposed
conservatee.
(b) In the case of any a proceeding
to establish a general conservatorship for a person with
developmental disabilities, the regional center, with the consent of
the proposed conservatee, may prepare an assessment as provided in
Chapter 5 (commencing with Section 4620) of Division 4.5 of the
Welfare and Institutions Code. If an assessment is prepared, the
regional center shall submit its findings and recommendations to the
court.
(c) (1) A report prepared under subdivision
(a) or (b) shall include a description of the specific areas, nature,
and degree of disability of the proposed conservatee or proposed
limited conservatee. The findings and recommendations of the regional
center are not binding upon the court.
In
(2) In a proceeding where the
petitioner is a provider of board and care, treatment, habilitation,
or other services to persons with developmental disabilities or a
spouse or employee of a provider, is not the natural parent of the
proposed conservatee or proposed limited conservatee, and is not a
public entity, the regional center shall include a recommendation in
its report concerning the suitability of the petitioners to meet the
needs of the proposed conservatee or proposed limited conservatee.
(d) At least five days before the hearing on the petition, the
regional center shall mail a copy of the report referred to in
subdivision (a) to all of the following:
(1) The proposed limited conservatee.
(2) The attorney, if any, for the proposed limited conservatee.
(3) If the petitioner is not the proposed limited conservatee, the
attorney for the petitioner or the petitioner if the petitioner does
not have an attorney.
(4) Such other Other persons as the
court orders.
(e) The report referred to in subdivisions (a) and (b) shall be
confidential and shall be made available only to parties listed in
subdivision (d) unless the court, in its discretion, determines that
the release of the report would serve the interests of the
conservatee who is developmentally disabled. The clerk of the court
shall make provision for limiting disclosure of the report
exclusively to persons entitled thereto under this section.
SECTION 1. Section 1813 of the Probate Code is
amended to read:
1813. (a) (1) The spouse of a proposed conservatee shall not
petition for the appointment of a conservator for a spouse or be
appointed as conservator of the person or estate of the proposed
conservatee unless the petitioner alleges in the petition for
appointment as conservator, and the court finds, that the spouse is
not a party to an action or proceeding against the proposed
conservatee for legal separation of the parties, dissolution of
marriage, or adjudication of nullity of their marriage. However, if
the court finds by clear and convincing evidence that the appointment
of the spouse, who is a party to an action or proceeding against the
proposed conservatee for legal separation of the parties,
dissolution of marriage, or adjudication of nullity of their
marriage, or has obtained a judgment in any of these proceedings, is
in the best interests of the proposed conservatee, the court may
appoint the spouse.
(2) Prior to making this appointment, the court shall appoint
counsel to consult with and advise the conservatee, and to report to
the court his or her findings concerning the suitability of
appointing the spouse as conservator.
(b) The spouse of a conservatee shall disclose to the conservator,
or if the spouse is the conservator, shall disclose to the court,
the filing of an action or proceeding against the conservatee for
legal separation of the parties, dissolution of marriage, or
adjudication of nullity of the marriage, within 10 days of the filing
of the action or proceeding by filing a notice with the court and
serving the notice according to the notice procedures under this
title. Upon receipt of the notice, the court may set the matter for
hearing on an order to show cause why the appointment of the spouse
as conservator, if the spouse is the conservator, should not be
terminated and a new conservator appointed by the court.