BILL ANALYSIS Ó
AB 1085
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Date of Hearing: May 12, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1085
(Gatto) - As Amended May 5, 2015
PROPOSED CONSENT
SUBJECT: Personal representatives: ViSITATION AND DEATH
NOTIFICATION
KEY ISSUE: SHOULD A CONSERVATOR BE ALLOWED TO ENFORCE THE
CONSERVATEE'S RIGHT TO RECEIVE VISITORS AND SHOULD A
CONSERVATOR, AS WELL AS AN AGENT UNDER A HEALTH CARE DIRECTIVE
WHO HAS BEEN SO requested, BE REQUIRED TO NOTIFY SPECIFIC
INDIVIDUALS WHEN THE CONSERVATEE OR PRINCIPAL DIES?
SYNOPSIS
This bill is in response to several high profile instances where
adult children were reportedly denied visitation with their
ailing parents because of the contentious relationship between
the children and the spouses of the ailing parents. California
law - both statutory and case law - currently provides little
guidance on how to address these difficult situations. While it
is hoped that most of these family conflicts can be settled
without recourse to the courts, supporters argue that some
conflicts cannot be resolved on an informal basis. To address
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those conflicts, this bill does two things. First it
specifically allows a court to issue an order enforcing a
conservatee's right to receive visitors, phone calls and
personal mail. Second, it requires a conservator and an agent
under a power of attorney for health care, if so directed by the
principal, to notify specified individuals when the conservatee
or principal dies. This bill is much narrower than AB 2034
(Gatto), 2014, which would have created a court process for
adult children to seek visitation with their parents. That bill
passed the Assembly, but was not taken up for a vote on the
Senate Floor.
This bill is supported by the California Commission on Aging and
the Trusts and Estates Section of the State Bar, as well as the
Kasem Cares Foundation, which believes that it is a helpful
first step to address some access issues, but that more must
done to help adult children visit their ailing parents. The
bill is also supported by California Advocates for Nursing Home
Reform, which hopes that the bill will "put to rest the notion
that vulnerable elderly or dependent adults somehow lose their
right to control their personal contacts whenever some random
person decides to take it away without any adjudicatory due
process." This bill, as amended, has no reported opposition.
SUMMARY: Allows a court to order a conservator to facilitate
visitation, and requires a conservator, and an attorney-in-fact
under a health care directive if so directed by the principal,
to notify specified individuals when the conservatee or
principal dies. Specifically, this bill:
1)States the legislative intent that every adult has the right
to visit with, and receive mail, telephone, and electronic
communication from, whomever he or she so chooses, unless a
court specifically orders otherwise.
2)Allows a court to issue an order that either a) specifically
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grants a conservator of the person the power to enforce the
conservatee's right to receive visitors, telephone calls, and
personal mail, or b) directs the conservator to allow such
visitors, telephone calls, and personal mail.
3)Requires a conservator of the person to notify specified
individuals, including the conservatee's spouse or registered
domestic partner and anyone who has requested special notice
from the court, when the conservatee dies and file proof of
service of that notice with the court, unless the court orders
otherwise.
4)If directed by the principal in a power of attorney for health
care, requires the attorney-in-fact to notify those whose
names have been provided by the principal to the agent when
the principal dies.
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). (Probate Code Section 1800 et
seq. Unless stated otherwise, all further statutory
references are to that code.)
2)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. (Section
2351.)
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3)Requires a conservator to file a notice of change of residence
with the court, served on specified individuals, within 30
days of a change of the ward's or conservatee's residence.
(Section 2352.)
4)Provides that a conservatorship terminates when the
conservatee dies or when the court so orders. (Section 1860.)
5)Allows a court to issue a protective order on behalf of an
elder or dependent adult. (Welfare & Institutions Code
Section 15657.03.)
6)Provides that an adult has the fundamental right to control
the decisions relating to his or her own health care,
including the decision to have life-sustaining treatment
withheld or withdrawn. Allows an adult with capacity to
execute a power of attorney for health care (an advance health
care directive), authorizing an agent to make health care
decisions for the adult, which may include specific health
care instructions. (Sections 4650, 4670 et seq.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
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. The author
explains the need as follows:
As divorce and remarriage become more prevalent in today's
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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.
Current law provides all rights relating to the care of
loved ones to spouses. If a conflict exists between a new
spouse and children from a first marriage, there exist few
legal options when it comes to arranging for a visit or
getting notice of . . . the death of a parent . . . .
This was the case for Catherine Falk, the daughter of actor
Peter Falk. Mr. Falk divorced Catherine's mother when she
was 6 years old and remarried the following year. For 30
years, Mr. Falk maintained a loving relationship with
Catherine despite conflicts with his second spouse. In
2008, Mr. Falk became completely incapacitated as a result
of advanced dementia. Mrs. Falk, however, failed to inform
Mr. Falk's children of his condition and refused to allow
his children to visit their ailing father.
A similar situation has presented itself with the family of
radio icon Casey Kasem, who was gravely ill and has left
the public eye. Kasem's daughters, Kerri and Julie Kasem,
were barred by their stepmother from seeing their ailing
father after regularly seeing him for more than 30 years,
and in spite of Julie having been given power of attorney
for health care by Casey. . . .
These tragic stories have shown gaps in current law that
need to be addressed in order to make sure adult children
have legal recourse if they are denied access to their
parents in their twilight years.
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AB 1085 will fill those gaps.
California law - both statutory and case law - currently
provides limited guidance on how to address adult visitation
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.) Last year, the author
attempted to address the limitations in existing law by
establishing a new legal procedure to allow adult children to
petition the court for visitation with their parents. That
bill, AB 2034 (Gatto), passed this Committee, the Assembly as a
whole, and the Senate Judiciary Committee, but died without
being taken up for a vote on the Senate Floor.
This bill is a much more narrow version of last year's AB 2034,
but still seeks to help families in these difficult situations
in two ways. First it specifically allows a court to issue an
order enforcing a conservatee's right to receive visitors, phone
calls and personal mail. Second, it requires a conservator and
the agent under a power of attorney for health care, if so
directed by the principal, to notify specified individuals when
the conservatee or principal dies.
Allows a Court to Require a Conservator to Protect a
Conservatee's Personal Rights. In California, if an adult is
unable to manage his or her financial matters, a conservator of
the estate may be appointed by a court to manage the adult's or
conservatee's financial matters. If the adult is unable to
manage his or her medical and personal decisions, a conservator
of the person may be appointed. While a conservator has charge
of the care, custody and control of the conservatee, that power
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is not absolute. In 2013, the Legislature passed AB 937
(Wieckowski), Chap. 127, Stats. 2013, which clarified that,
unless limited by court order, a conservatee retains his or her
personal rights, including the right to receive visitors,
personal mail, and telephone calls.
This bill seeks to protect the conservatee's personal rights in
two ways. First it states the legislative intent that every
adult has the right to visit with, and receive mail, telephone
and electronic communication from, whomever he or she so
chooses, unless a court specifically orders otherwise. Second
the bill specifically allows a court to issue an order that
either a) specifically grants a conservator of the person the
power to enforce the conservatee's right to receive visitors,
telephone calls, and personal mail, or b) directs the
conservator to allow such visitors, calls and mail. These
changes make clear that not only does a conservatee retain the
right to visit with whomever he or she so chooses, but that a
conservator may be called upon to help the conservatee
effectuate those rights.
However, the conservatee's right to receive visitors, calls and
mail is not absolute. If the person seeking to visit with the
conservatee is harmful or dangerous to the conservatee, a court
can certainly limit the conservatee's rights to visitation. If
necessary to protect the conservatee, the conservator can go to
court and seek an order preventing that visitation or a
restraining order against the visitor, even if that is against
the conservatee's wishes.
In support of the bill, the Trusts & Estates Section of the
State Bar writes:
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There are situations that arise as to a conservatee's
actual, personal desire to receive visitors, telephone
call, and personal mail, and whether or not complying with
such desires of the conservatee would be in his or her best
interest. Existing law already permits a court to
authorize a conservator to limit a conservatee's right to
receive visitors, telephone call, and personal mail. This
bill would clarify and confirm the court's authority to
grant a conservator the power to enforce the conservatee's
right to receive visitors, telephone call, and personal
mail. This bill thus would clarify any ambiguity regarding
a court's authority to both limit and enforce a
conservatee's desire to receive visitors, telephone calls,
and personal mail.
Bill Creates New Notice Requirement for Conservators and Agents
for Health Care on Death of the Conservatee/Principal.
Currently, a conservator must notify known second-degree
relatives when the conservatee is moved. (Section 2352.)
However, there is no requirement that the conservator notify the
same relatives if the conservatee dies. This bill requires that
the conservator notify specified individuals when the
conservatee dies and that the notice be filed with the court,
unless the court orders otherwise. The individuals specified in
the bill include the conservatee's spouse or domestic partner
and anyone requesting special notice from the court under
Section 2700. While the notification proposed by the bill is an
additional duty on the conservator, it is limited to the death
of the conservatee. In fact, some have expressed surprise that
this is not already one of the conservator's duties. Moreover,
it simply speeds up a conservator's final duty - to submit a
final accounting and request to be discharged.
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The bill also creates a new duty for agents under a power of
attorney for health care. An agent under a health care
directive generally makes health care decisions for a person who
is unable, because of lack of capacity, to make those decisions
for himself or herself. The directive may also include
individual health care instructions. This bill would add to
those duties by requiring the agent, if so directed by the
principal, to inform those individuals specified by the
principal when he or she dies. The principal remains in
complete control of this notification - he or she gets to decide
if the agent must notify others of his or her death and, if so,
who should receive that notice.
ARGUMENTS IN SUPPORT: California Advocates for Nursing Home
Reform (CANHR) supports the bill stating that it "provides some
important clarification regarding the rights of elder and
dependent adults as well as sensible notification requirements
when a conservatee or principal under a power of attorney dies."
CANHR adds:
Visitation and other personal contact rights are frequently
the subject of calls and emails to our organization. The
new statement of legislative intent in AB 1085 verifies
that all adults maintain control over their personal
contact with others unless a court has ruled otherwise.
This simple statement will hopefully put to rest the notion
that vulnerable elderly or dependent adults somehow lose
their right to control their personal contacts whenever
some random person decided to take it away without any
adjudicatory due process.
REGISTERED SUPPORT / OPPOSITION:
AB 1085
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Support
California Advocates for Nursing Home Reform
California Commission on Aging
Kasem Cares Foundation
Trusts & Estates Section of the State Bar
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334