BILL ANALYSIS                                                                                                                                                                                                    





                             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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