BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1085 (Gatto)
Version: May 5, 2015
Hearing Date: June 16, 2015
Fiscal: No
Urgency: No
TMW
SUBJECT
Personal representatives: conservators and attorneys-in-fact
DESCRIPTION
This bill would authorize the court to issue an order that
specifically grants a conservator the power to enforce the
conservatee's rights to receive visitors, telephone calls, and
personal mail, or that directs the conservator to allow those
visitors, telephone calls, and personal mail, and would require
a conservator to provide notice of a conservatee's death by
mailing a copy of the notice to all persons entitled to notice,
as specified, and by filing a proof of service with the court,
unless otherwise ordered by the court. This bill would also
require an attorney-in-fact, who is named by a person
(principal) to handle the principal's health matters, upon the
death of the principal, to inform those individuals, whose names
are provided by the principal to the attorney-in-fact, of the
principal's death.
BACKGROUND
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 (conservatee) financial
matters. If the adult is unable to manage his or her medical
and personal decisions, a conservator of the person may be
appointed.
When a conservator is appointed, the conservator is charged with
the care, custody, and control of the conservatee. However, the
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court determines the powers and duties of the conservator and
may limit the conservator's powers and duties according to the
needs of the conservatee. The court also determines the powers
and duties retained by the conservatee for his or her own care.
Existing law provides that, unless specifically limited by the
court, a conservatee retains personal rights, including, but not
limited to, the right to receive visitors, telephone calls, and
personal mail.
Prior to reaching a conservatorship, an adult (principal) can
appoint another person as his or her attorney-in-fact or agent
to act on the principal's behalf in legal matters. Powers of
attorney are particularly useful when an individual becomes
incapacitated or otherwise unable to make legal and financial
decisions for him or herself. Under the Uniform Health Care
Decisions Act, the principal having capacity to execute a power
of attorney for health care may authorize the attorney-in-fact
to make health care decisions for the principal and include
individual health care instructions.
This bill would authorize the court to issue an order that
specifically grants a conservator the power to enforce the
conservatee's rights to receive visitors, telephone calls, and
personal mail, or that directs the conservator to allow those
visitors, telephone calls, and personal mail, and would require
a conservator to provide notice of a conservatee's death by
mailing a copy of the notice to all persons entitled to notice,
as specified, and by filing a proof of service with the court,
unless otherwise ordered by the court. This bill would also
require an attorney-in-fact, upon the death of the principal, to
inform those individuals whose names are provided by the
principal to the attorney-in-fact for that purpose.
CHANGES TO EXISTING LAW
Existing law authorizes a 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). (Prob. Code Sec. 1800 et
seq.)
Existing law authorizes a proposed conservatee, or spouse,
domestic partner, relative, friend of the conservatee, public
administrator, or other interested person to petition the court
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for the appointment of a conservator of the proposed
conservatee. Existing law requires specified information to be
included in the petition. (Prob. Code Secs. 1820, 1821.)
Existing law authorizes a court, upon a showing of good cause,
to appoint a temporary conservator or guardian to serve pending
the appointment of a permanent conservator or guardian. Unless
the court orders otherwise, existing law 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. (Prob. Code Sec. 2250
et seq.)
Existing law provides that a guardian or conservator, but not a
limited conservator, has the care, custody, and control of, and
has charge of the education of the ward or conservatee. (Prob.
Code Sec. 2351(a).) This control does 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 court order. (Id.)
Existing law provides that where the court determines that it is
appropriate in the circumstances of the particular conservatee,
the court, in its discretion, may limit the powers and duties
that the conservator would otherwise have by an order stating
either of the following: (1) the specific powers that the
conservator does not have with respect to the conservatee's
person and reserving the powers so specified to the conservatee;
and (2) the specific powers and duties the conservator has with
respect to the conservatee's person and reserving to the
conservatee all other rights with respect to the conservatee's
person that the conservator otherwise would have. (Prob. Code
Sec. 2351(b).)
Existing law requires a conservator to file a notice of change
of residence of the conservatee with the court, served on
specified individuals, within 30 days of a change of the
conservatee's residence and 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. (Prob. Code Sec.
2352.)
Existing law authorizes a petition to be filed to determine if a
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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. (Prob. Code Sec. 3200 et
seq.)
Existing law , the Uniform Health Care Decisions Act, authorizes
an adult (principal) having capacity to execute a power of
attorney for health care, which may authorize the agent
(attorney-in-fact) to make health care decisions for the
principal and include individual health care instructions.
(Prob. Code Sec. 4671(a).) The principal in a power of attorney
for health care is authorized to grant authority to make
decisions relating to the personal care of the principal,
including, but not limited to, determining where the principal
will live, providing meals, hiring household employees,
providing transportation, handling mail, and arranging
recreation and entertainment for the principal. (Prob. Code
Sec. 4671(b).)
Existing law provides that unless otherwise provided in a power
of attorney for health care, the authority of an agent becomes
effective only on a determination that the principal lacks
capacity, and ceases to be effective on a determination that the
principal has recovered capacity. (Prob. Code Sec. 4682.)
Existing law authorizes the agent to make decisions that may be
effective after the principal's death, including making a
disposition under the Uniform Anatomical Gift Act, authorizing
an autopsy, directing the disposition of the remains, and
authorizing the release of the records of the principal to the
extent necessary for the agent to fulfill his or her duties.
(Prob. Code Sec. 4683.)
This bill would authorize the court to issue an order that
specifically grants a conservator the power to enforce the
conservatee's rights to receive visitors, telephone calls, and
personal mail, or that directs the conservator to allow those
visitors, telephone calls, and personal mail.
This bill would require a conservator to provide notice of a
conservatee's death by mailing a copy of the notice to all
persons entitled to notice, as specified, and by filing a proof
of service with the court, unless otherwise ordered by the
court.
This bill , if directed by the principal in a power of attorney
for health care, would require an attorney-in-fact, upon the
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death of the principal, to inform those individuals whose names
are provided by the principal to the attorney-in-fact for that
purpose.
This bill would find and declare that every adult in this state
has the right to visit with, and receive mail and telephone or
electronic communication from, whomever he or she so chooses,
unless a court has specifically ordered otherwise.
COMMENT
1. Stated need for the bill
The author writes:
As divorce and remarriage become more prevalent in today's
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 being
provided information regarding the death of a beloved elder.
AB 1085 will help courts settle these matters.
Current law does not explicitly give judges the authority to
enforce the visitation rights of conservatees. This measure
makes clear to judges that they may either direct a
conservator to enforce a conservatee's right to receive
visitors and other communications, or direct a conservator to
allow visits and communications from the outside.
Also, current law does not provide for notice to be given to
an elder's loved ones when they are being cared for by a
conservator or agent acting under a medical power of attorney.
AB 1085 would direct conservators, upon the death of a
conservatee, to inform anyone requesting special notice from
the court under Section 2700. It provides for a similar
notice to be given by agents acting under a medical power of
attorney to individuals specified by the principal.
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2. Clarifying judicial authority regarding conservatee visitation
When a conservator is appointed, he or she is charged with the
care, custody, and control of the conservatee. The court
determines the powers and duties of the conservator and the
powers and duties retained by the conservatee for his or her own
care. Additionally, unless specifically limited by the court,
the conservatee retains personal rights, including, but not
limited to, the right to receive visitors, telephone calls, and
personal mail. This bill would clarify the court's ability to
issue an order that specifically grants a conservator the power
to enforce the conservatee's rights to receive visitors,
telephone calls, and personal mail, or that directs the
conservator to allow those activities.
The Executive Committee of the Trusts and Estates Section of the
State Bar of California (TEXCOM) argues that "[t]here are
situations that arise as to a conservatee's actual, personal
desire to receive visitors, telephone call[s], and personal
mail, and whether or not complying with such desires of the
conservatee would be in his or her best interest
. . . . In addition, and unfortunately, there are situations
that arise as to whether a conservator is supplanting his or her
own wishes for that of the conservatee (e.g., if a conservator
who is a family member of the conservatee is intentionally
keeping other family members who wish to visit with the
conservatee away from the conservatee, or is preventing third
parties reasonable access to the conservatee, contrary to the
conservatee's wishes)." This bill would clarify the court's
ability to enforce the conservatee's rights to visitation,
telephone calls, and personal mail so that the conservatee can
maintain contact with family members who may otherwise be denied
access to the conservatee based on the conservator's
relationship with the family members. This bill also maintains
the existing ability of the conservator, by court order, to
limit family visitation with the conservatee if the family
member is shown to be harmful to the conservatee or if
visitation with that family member is not in the best interests
of the conservatee.
3. Requiring notice of conservatee's or principal's death
This bill would require a conservator to provide notice of a
conservatee's death by mailing a notice to all persons entitled
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to notice, as specified, including the spouse or domestic
partner of the conservatee and any person who has requested
special notice of the matter, as specified. This bill would
also require an attorney-in-fact under a power of attorney for
health care to inform the individuals whose names are provided
by the principal to the attorney-in-fact for that purpose.
The California Commission on Aging, in support, states that
"[t]oo often the illness or incapacity of an elderly parent or
relative results in family turmoil, leaving some family members
completely out of touch with the conservatee's condition or
status." This bill seeks to provide family members with
information when the conservatee or principal has passed away.
Notably, this bill is narrow in that it only requires the
attorney-in-fact to provide notice of the principal's death to
individuals listed by the principal. TEXCOM "supports this
portion of the bill as well, as it attempts to mirror the
provisions relating to the [conservator] notice of death
provisions . . ., but requires an explicit expression of intent
by the principal to provide notice of his or her death to
specifically named individuals. Requiring such a principal's
intent in writing will ensure that a principal's intent is made
clear to the agent."
It is also important to note that this bill, at the suggestion
of TEXCOM, only requires notice by a conservator to the
individuals listed under Probate Code Section 1460, as follows:
(1) the guardian or conservator (in this case, the person giving
notice);
(2) the ward or the conservatee (in this case, deceased);
(3) the spouse of the ward or conservatee, if the ward or
conservatee has a spouse, or the domestic partner of the
conservatee, if the conservatee has a domestic partner;
(4) any person who has requested special notice of the matter,
as specified;
(5) for any hearing on a petition to terminate a guardianship,
to accept the resignation of, or to remove the guardian, the
persons described in subdivision (c) of Section 1510
(inapplicable to conservatorships); and
(6) for any hearing on a petition to terminate a
conservatorship, to accept the resignation of, or to remove the
conservator, the persons described in subdivision (b) of Section
1821 (this bill does not require this petition to be filed).
Of that list, it appears that only notice to the spouse or
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domestic partner of the conservatee and any person who has
requested special notice of the matter would receive notice from
the conservator. Accordingly, in order to receive notice of the
conservatee's death, family members or friends must have
requested special notice in the conservatorship proceedings.
Additionally, this bill does not prescribe any penalty or remedy
to be awarded to an individual who does not receive notice of
the conservatee's or principal's death. As such, the
conservator or attorney-in-fact may not face any repercussion
for failing to provide notice required by this bill. This may
be problematic, especially in instances where the conservator or
attorney-in-fact has an adversarial relationship with the
family, spouse, or domestic partner of the conservatee.
Support : California Advocates for Nursing Home Reform;
California Commission on Aging; Executive Committee of the
Trusts and Estates Section of the State Bar of California; Kasem
Cares Foundation
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 937 (Wieckowski, Chapter 127, Statutes of 2013) clarified
that a conservatee retains personal rights, including, but not
limited to, the right to receive visitors, telephone calls, and
personal mail, unless specifically limited by court order.
AB 1950 (Pacheco, Chapter 565, Statutes of 2000) prohibited a
guardian or conservator of a person, in exercising his or her
powers, from hiring or referring business to an entity in which
he or she has a financial interest except with court
authorization and required the guardian or conservator to
disclose certain family relationships, as defined, with other
parties to the transaction with respect to the ward's or
conservatee's property.
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AB 891 (Alquist, Chapter 658, Statutes of 1999) revised and
recast provisions regarding durable powers of attorney for
health care under the Power of Attorney Law and the Natural
Death Act, to form a new act, the Health Care Decisions Law. AB
891 provided for the creation, form, and revocation of advance
health care directives, and for the manner of making health care
decisions for patients without surrogates.
AB 759 (Friedman, Chapter 70, Statutes of 1990) revised and
recast the Probate Code, which included the powers and duties of
conservators.
Prior Vote :
Assembly Floor (Ayes 77, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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