California Legislature—2015–16 Regular Session

Assembly BillNo. 1085


Introduced by Assembly Member Gatto

February 27, 2015


An act to amend Sections 2351 and 4766 of, and to add Sections 2361 and 4691 to, the Probate Code, relating to personal representatives.

LEGISLATIVE COUNSEL’S DIGEST

AB 1085, as introduced, Gatto. Personal representatives: conservators and attorneys-in-fact.

(1) Existing 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. Existing law also provides that the conservator’s control of the conservatee shall not extend to 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 a court order.

This bill would provide that a court order may be issued that specifically grants the conservator the power to limit or enforce the conservatee’s right to receive visitors, telephone calls, and personal mail.

(2) Existing law additionally authorizes an adult with capacity to execute a power of attorney for health care.

This bill would require a conservator and an attorney-in-fact to promptly inform the relatives of the conservatee or principal whenever the conservatee or principal dies or is admitted to a medical facility for acute care for a period of 3 days or more.

(3) Existing law authorizes a petition to be filed for certain authorized purposes, including to determine whether or not a patient has capacity to make health care decisions, whether an advance health care directive is in effect, whether the acts or proposed acts of an agent or surrogate are consistent with the patients desires as expressed in an advance health care directive, or to declare that the authority of an agent or surrogate is terminated, or to compel a 3rd person to honor individual health care instructions.

This bill would also authorize a petition to be filed to authorize an agent or surrogate to limit or enforce the principal’s right to receive visitors, telephone calls, and personal mail.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

P2    1

SECTION 1.  

Section 2351 of the Probate Code is amended to
2read:

3

2351.  

(a) Subject to subdivision (b), the guardian or
4conservator, but not a limited conservator, has the care, custody,
5and control of, and has charge of the education of, the ward or
6conservatee. This control shall not extend to personal rights
7retained by the conservatee, including, but not limited to, the right
8to receive visitors, telephone calls, and personal mail, unless
9specifically limited by court order.

10(b) Where the court determines that it is appropriate in the
11circumstances of the particular conservatee, the court, in its
12discretion, may limit the powers and duties that the conservator
13would otherwise have under subdivision (a) by an order stating
14either of the following:

15(1) The specific powers that the conservator does not have with
16respect to the conservatee’s person and reserving the powers so
17specified to the conservatee.

18(2) The specific powers and duties the conservator has with
19respect to the conservatee’s person and reserving to the conservatee
20all other rights with respect to the conservatee’s person that the
21conservator otherwise would have under subdivision (a).

begin insert

22(c) In accordance with subdivisions (a) and (b), an order under
23this section may be issued that specifically grants the conservator
P3    1the power to limit or enforce the conservatee’s right to receive
2visitors, telephone calls, and personal mail.

end insert
begin delete

3(c)

end delete

4begin insert(d)end insert An order under this section (1) may be included in the order
5appointing a conservator of the person or (2) may be made,
6modified, or revoked upon a petition subsequently filed, notice of
7the hearing on the petition having been given for the period and
8in the manner provided in Chapter 3 (commencing with Section
91460) of Part 1.

begin delete

10(d)

end delete

11begin insert(e)end insert The guardian or conservator, in exercising his or her powers,
12may not hire or refer any business to an entity in which he or she
13has a financial interest except upon authorization of the court. Prior
14to authorization from the court, the guardian or conservator shall
15disclose to the court in writing his or her financial interest in the
16entity. For the purposes of this subdivision, “financial interest”
17shall mean (1) an ownership interest in a sole proprietorship, a
18partnership, or a closely held corporation, or (2) an ownership
19interest of greater than 1 percent of the outstanding shares in a
20publicly traded corporation, or (3) being an officer or a director
21of a corporation. This subdivision shall apply only to conservators
22and guardians required to register with the Statewide Registry
23under Chapter 13 (commencing with Section 2850).

24

SEC. 2.  

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

25

2361.  

A conservator shall inform relatives of a conservatee, as
26described in subdivision (b) of Section 1821, whenever a
27conservatee dies or is admitted to a medical facility for acute care
28for a period of three days or more. If the conservatee dies, the
29conservator shall inform the relatives of any funeral arrangements
30and the location of the conservatee’s final resting place.

31

SEC. 3.  

Section 4691 is added to the Probate Code, to read:

32

4691.  

An attorney-in-fact shall inform relatives of the principal,
33as described in subdivision (b) of Section 1821, whenever the
34principal dies or is admitted to a medical facility for acute care for
35three days or more. If the principal dies, the attorney-in-fact shall
36inform the relatives of any funeral arrangements and the location
37of the principal’s final resting place.

38

SEC. 4.  

Section 4766 of the Probate Code is amended to read:

39

4766.  

A petition may be filed under this part for any one or
40more of the following purposes:

P4    1(a) Determining whether or not the patient has capacity to make
2health care decisions.

3(b) Determining whether an advance health care directive is in
4effect or has terminated.

5(c) Determining whether the acts or proposed acts of an agent
6or surrogate are consistent with the patient’s desires as expressed
7in an advance health care directive or otherwise made known to
8the court or, where the patient’s desires are unknown or unclear,
9whether the acts or proposed acts of the agent or surrogate are in
10the patient’s best interest.

11(d) Declaring that the authority of an agent or surrogate is
12terminated, upon a determination by the court that the agent or
13surrogate has made a health care decision for the patient that
14authorized anything illegal or upon a determination by the court
15of both of the following:

16(1) The agent or surrogate has violated, has failed to perform,
17or is unfit to perform, the duty under an advance health care
18directive to act consistent with the patient’s desires or, where the
19patient’s desires are unknown or unclear, is acting (by action or
20inaction) in a manner that is clearly contrary to the patient’s best
21interest.

22(2) At the time of the determination by the court, the patient
23lacks the capacity to execute or to revoke an advance health care
24directive or disqualify a surrogate.

25(e) Compelling a third person to honor individual health care
26instructions or the authority of an agent or surrogate.

begin insert

27(f) Authorizing an agent or surrogate to limit or enforce the
28principal’s right to receive visitors, telephone calls, and personal
29mail.

end insert


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