AB 1085, as amended, 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.begin insert The bill would state findings and declarations of the Legislature in this regard.end insert
(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.
end delete(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.
end deleteThis 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.
end deleteThis bill would require a conservator to provide notice of a conservatee’s death by mailing a copy of the notice to specified persons, as provided. The bill would require an attorney-in-fact, if directed by the principal in a power of attorney for health care, upon the death of the principal, to inform those individuals whose names are provided by the principal for that purpose.
end insertVote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
begin insertThe Legislature finds and declares that every
2adult in this state has the right to visit with, and receiveend insertbegin insert mail and
3telephone or electronic communication from, whomever he or she
4so chooses, unless a court has specifically ordered otherwise.end insert
Section 2351 of the Probate Code is amended to read:
(a) Subject to subdivision (b), the guardian or
8conservator, but not a limited conservator, has the care, custody,
9and control of, and has charge of the education of, the ward or
10conservatee. This control shall not extend to personal rights
11retained by the conservatee, including, but not limited to, the right
12to receive visitors, telephone calls, and personal mail, unless
13specifically limited by court order.begin insert The court may issue an order
14that specifically grants the conservator the power to enforce the
15conservatee’s rights to receive visitors, telephone calls, and
P3 1personal mail, or that directs the conservator to allow those
2visitors, telephone calls, and personal mail.end insert
3(b) Where the court determines that it is appropriate in the
4circumstances of the particular conservatee, the court, in its
5discretion, may limit the powers and duties that the conservator
6would otherwise have under subdivision (a) by an order stating
7either of the following:
8(1) The specific powers that the conservator does not have with
9respect to the conservatee’s person and reserving the powers so
10specified to the conservatee.
11(2) The specific powers and duties the conservator has with
12respect to the conservatee’s person and reserving to the conservatee
13all other rights with respect to the conservatee’s person that the
14conservator otherwise would have under subdivision (a).
15(c) In accordance with subdivisions (a) and (b), an order under
16this section may be issued that specifically grants the conservator
17the power to limit or enforce the conservatee’s right to receive
18visitors, telephone calls, and personal mail.
19(d)
end delete
20begin insert(c)end insert An order under this section (1) may be included in the order
21appointing a conservator of the person or (2) may be made,
22modified, or revoked upon a petition subsequently filed, notice of
23the hearing on the petition having been given for the period and
24in the manner provided in Chapter 3 (commencing with Section
251460) of Part 1.
26(e)
end delete
27begin insert(d)end insert The guardian or conservator, in exercising his or her powers,
28may not hire or refer any business to an entity in
which he or she
29has a financial interest except upon authorization of the court. Prior
30to authorization from the court, the guardian or conservator shall
31disclose to the court in writing his or her financial interest in the
32entity. For the purposes of this subdivision, “financial interest”
33shall mean (1) an ownership interest in a sole proprietorship, a
34partnership, or a closely held corporation, or (2) an ownership
35interest of greater than 1 percent of the outstanding shares in a
36publicly traded corporation, or (3) being an officer or a director
37of a corporation. This subdivision shall apply only to conservators
38and guardians required to register with the Statewide Registry
39under Chapter 13 (commencing with Section 2850).
Section 2361 is added to the Probate Code, to read:
A conservator shall inform relatives of a conservatee, as
2described in subdivision (b) of Section 1821, whenever a
3conservatee dies or is admitted to a medical facility for acute care
4for a period of three days or more. If the conservatee dies, the
5conservator shall inform the relatives of any funeral arrangements
6and the location of the conservatee’s final resting place.
Section 4691 is added to the Probate Code, to read:
An attorney-in-fact shall inform relatives of the principal,
9as described in subdivision (b) of Section 1821, whenever the
10principal dies or is admitted to a medical facility for acute care for
11three days or more. If the principal dies, the attorney-in-fact shall
12inform the relatives of any funeral arrangements and the location
13of the principal’s final resting place.
Section 4766 of the Probate Code is amended to read:
A petition may be filed under this part for any one or
16more of the following purposes:
17(a) Determining whether or not the patient has capacity to make
18health care decisions.
19(b) Determining whether an advance health care directive is in
20effect or has terminated.
21(c) Determining whether the acts or proposed acts of an agent
22or surrogate are consistent with the patient’s desires as expressed
23in an advance health care directive or otherwise made known to
24the court or, where the patient’s desires are unknown or unclear,
25whether the acts or proposed acts of the agent or surrogate are in
26the patient’s best interest.
27(d) Declaring that the authority of an agent or surrogate is
28terminated, upon a determination by the court that the agent or
29surrogate has made a health care decision for the patient that
30authorized anything illegal or upon a determination by the court
31of both of the following:
32(1) The agent or surrogate has violated, has failed to perform,
33or is unfit to perform, the duty under an advance health care
34directive to act consistent with the patient’s desires or, where the
35patient’s desires are unknown or unclear, is acting (by action or
36inaction) in a manner that is clearly contrary to the patient’s best
37interest.
38(2) At the time of the determination by the court, the patient
39lacks the capacity to execute or to revoke an advance health care
40directive or disqualify a surrogate.
P5 1(e) Compelling a third person to honor individual health care
2instructions or the authority of an agent or surrogate.
3(f) Authorizing an agent or surrogate to limit or enforce the
4principal’s right to receive visitors, telephone calls, and personal
5mail.
begin insertSection 2361 is added to the end insertbegin insertProbate Codeend insertbegin insert, to read:end insert
begin insertA conservator shall provide notice of a conservatee’s
8death by mailing a copy of the notice to all persons entitled to
9notice under Section 1460 and by filing a proof of service with the
10court, unless otherwise ordered by the court.
begin insertSection 4691 is added to the end insertbegin insertProbate Codeend insertbegin insert, to read:end insert
begin insertIf directed by the principal in a power of attorney for
13health care, an attorney-in-fact shall, upon the death of the
14principal, inform those individuals whose names are provided by
15the principal to the attorney-in-fact for that purpose.
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