BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1085|
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CONSENT
Bill No: AB 1085
Author: Gatto (D)
Amended: 5/5/15 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/16/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
ASSEMBLY FLOOR: 77-0, 5/18/15 (Consent) - See last page for
vote
SUBJECT: Personal representatives: conservators and
attorneys-in-fact
SOURCE: Author
DIGEST: This bill authorizes 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 requires 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 also requires
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.
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ANALYSIS:
Existing law:
1) 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).
2) Authorizes a proposed conservatee, or spouse, domestic
partner, relative, friend of the conservatee, public
administrator, or other interested person to petition the
court for the appointment of a conservator of the proposed
conservatee, and requires specified information to be
included in the petition.
3) 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.
4) Provides, unless the court orders otherwise, 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.
5) 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, but 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.
6) 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: (a) the
specific powers that the conservator does not have with
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respect to the conservatee's person and reserving the powers
so specified to the conservatee; and (b) 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.
7) 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.
8) Authorizes a petition to be filed to determine if a 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.
9) 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; 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.
10)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.
11)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
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authorizing the release of the records of the principal to
the extent necessary for the agent to fulfill his or her
duties.
This bill:
1) Authorizes 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.
2) Requires 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.
3) Requires, if directed by the principal in a power of
attorney for health care, 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.
4) Finds and declares 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.
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
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
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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 authorizes 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 requires 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 also requires
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.
Comments
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.
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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.
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.
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
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/18/15)
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: (Verified6/18/15)
None received
ASSEMBLY FLOOR: 77-0, 5/18/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Lackey, Levine, Linder, Lopez,
Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian,
Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,
Wood, Atkins
NO VOTE RECORDED: Kim, Mathis, Melendez
AB 1085
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Prepared by:Tara Welch / JUD. / (916) 651-4113
6/18/15 16:36:37
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