BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1452 (Wieckowski)
Version: March 28, 2016
Hearing Date: April 5, 2016
Fiscal: No
Urgency: No
TMW
SUBJECT
Conservators
DESCRIPTION
This bill would specify that a conservatee retains the personal
right to receive electronic mail and provide the court
authorization to issue an order specifically granting the
conservator power to enforce the conservatee's right to receive
electronic mail or that directs the conservator to allow
electronic mail to be delivered to the conservatee. The bill
also makes technical revisions and corrects a cross-reference.
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. Similarly, a guardian of the estate or person may be
appointed for a minor child (ward).
In some cases, the court may appoint a professional fiduciary to
act as the guardian or conservator. A professional fiduciary is
a person who provides conservatorship or guardianship services
for more than one conservatee or ward to whom the professional
fiduciary is not related. Professional fiduciaries are licensed
and disciplined under the Professional Fiduciaries Act.
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
SB 1452 (Wieckowski)
Page 2 of ?
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.
This bill would clarify that the conservatee also has the
personal right to receive electronic mail. This bill, with
respect to a guardian or conservator who is required to register
with the Statewide Registry, would strike that reference and
instead refer to licensing under the Professional Fiduciaries
Act.
CHANGES TO EXISTING LAW
Existing law authorizes a court to appoint a conservator of the
person to act on behalf of a person (conservatee) who is unable
to provide for his or her own personal needs or to appoint a
conservator of the estate to act on behalf of a conservatee who
is incapable of managing his or her own property or other
financial assets. (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
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
SB 1452 (Wieckowski)
Page 3 of ?
to, the right to receive visitors, telephone calls, and personal
mail, unless specifically limited by court order. (Id.)
Existing law authorizes the court to issue an order that
specifically grants the 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. (Prob. Code Sec.
2351(a).) That order may be included in the order appointing a
conservator of the person or may be made, modified, or revoked
upon a petition subsequently filed. (Prob. Code Sec. 2351(c).
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 prohibits a guardian or conservator, who is
required to register as a professional fiduciary with the
Statewide Registry, in exercising his or her powers, from hiring
or referring any business to an entity in which he or she has a
financial interest except upon authorization of the court.
(Prob. Code Sec. 2351(d).) Prior to the authorization from the
court, the guardian or conservator is required to disclose to
the court in writing his or her financial interest in the
entity. (Id.) Existing law defines "financial interest" to
mean (1) an ownership interest in a sole proprietorship, a
partnership, or a closely held corporation, (2) an ownership
interest of greater than one percent of the outstanding shares
in a publicly traded corporation, or (3) being an officer or a
director of a corporation. (Id.)
Existing law , the Professional Fiduciaries Act (PFA),
establishes a licensing and disciplinary scheme for a
professional fiduciary and defines "professional fiduciary" to
mean a person who acts as a conservator, guardian, trustee,
SB 1452 (Wieckowski)
Page 4 of ?
personal representative, agent under a durable power of attorney
for health care, or agent under a durable power of attorney for
finances, for two or more persons not related to the
professional fiduciary or to each other by blood, adoption,
marriage, or registered domestic partnership. (Bus. & Prof.
Code Sec. 6500 et seq.)
Existing law prohibits a superior court from appointing a person
to carry out the duties of a professional fiduciary, or
permitting a person to continue those duties, unless he or she:
(1) holds a valid, unexpired, unsuspended license as a
professional fiduciary under the PFA; (2) is exempt from the
definition of "professional fiduciary" under the PFA; or (3) is
exempt from the licensing requirements of the PFA. (Prob. Code
Sec. 2340.)
Existing law requires a professional fiduciary, who files a
petition to be appointed as the temporary or permanent
conservator of a person, to submit to the court a statement of
the professional fiduciary's registration or license information
and a statement explaining who engaged the professional
fiduciary or how the professional fiduciary was engaged to file
the petition for appointment as the temporary or permanent
conservator and what prior relationship the professional
fiduciary had with the proposed conservatee or the proposed
conservatee's family or friends, unless that information is
included in a petition for appointment for a temporary or
general conservator filed at the same time by the professional
fiduciary. (Prob. Code Secs. 1821(c), 2250(c).)
This bill would specify that a conservatee also retains the
personal right to receive electronic mail.
This bill , with respect to a guardian or conservator required to
register as a professional fiduciary with the Statewide
Registry, would instead refer to a guardian or conservator
required to be licensed under the Professional Fiduciaries Act.
COMMENT
1. Stated need for the bill
The author writes:
SB 1452 (Wieckowski)
Page 5 of ?
As our population ages, many more current and future
conservatees will be accustomed to communicating with friends
and loved ones via a computer as opposed to solely through
paper mail. This bill updates the Probate Code to account for
the use of electronic mail, as well as personal mail.
2. Adding personal right of conservatee to receive electronic
mail
In 2013, AB 937 (Wieckowski, Chapter 127, Statutes of 2013)
specified 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. To address situations when a conservator is supplanting
his or her own wishes for that of the conservatee, AB 1085
(Gatto, Chapter 92, Statutes of 2015), among other things,
clarified 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.
However, existing law does not explicitly provide for the
conservatee's personal rights to receive electronic mail.
California Advocates for Nursing Home Reform (CANHR), in
support, states that "[f]or years CANHR received calls and
emails from residents and family members of residents of long
term care facilities about problems regarding visitation and
contact with conservatees. In 2013, then Assemblymember
Wieckowski clarified a longstanding ambiguity in the law by
authoring AB 937, which ensured a conservatee's right to
visitation or contact with people of their choosing unless the
conservator obtained special authority to interfere. SB 1452
will improve AB 937 by adding email to the enumerated forms of
protected communication for conservatees. Obviously, email is
an important form of personal communication and merits the same
protections as phone calls and other written correspondence."
As noted by the author, more and more individuals are
communicating through electronic means, whether through personal
computer or other electronic devices. In recognition of the
increasing use of electronic communication and to maintain a
conservatee's ability to stay in contact with loved ones, this
bill would expand the existing list of personal rights retained
SB 1452 (Wieckowski)
Page 6 of ?
by conservatees to include the conservatee's right to receive
electronic mail.
3. Correcting cross-reference for professional fiduciaries
Existing law prohibits a guardian or conservator from hiring or
referring any business to an entity in which he or she has
financial interest except upon authorization from the court.
This provision was enacted by AB 1950 (Pacheco, Chapter 565,
Statutes of 2000) and only applies to conservators and guardians
required to register with the Statewide Registry (i.e.,
professional fiduciaries).
In 2006, in response to reports that individuals acting as
professional fiduciaries were abusing and taking advantage of
elders and dependent adults, SB 1550 (Figueroa, Chapter 491,
Statutes of 2006) repealed the Statewide Registry and, instead,
established the Professional Fiduciaries Act (PFA). The PFA
provides a licensing and disciplinary scheme for professional
fiduciaries in order to protect conservatees and wards.
In accordance with the repeal of the Statewide Registry of
guardians and conservators in favor of the licensing protections
in the PFA, this bill would update the guardian or conservator
conflict of interest prohibition by striking the outdated
reference to individuals required to be registered with the
Statewide Registry and instead provide that a guardian or
conservator is prohibited from hiring or referring any business
to an entity in which he or she has a financial interest only if
the guardian or conservator is otherwise required to be licensed
pursuant to the PFA.
Support : California Advocates for Nursing Home Reform
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 1452 (Wieckowski)
Page 7 of ?
AB 1085 (Gatto, Chapter 92, Statutes of 2015) See Comment 2.
AB 937 (Wieckowski, Chapter 127, Statutes of 2013) See Comment
2.
SB 1550 (Figueroa, Chapter 491, Statutes of 2006) See Comment 3.
AB 1950 (Pacheco, Chapter 565, Statutes of 2000) See Comment 3.
AB 925 (Hertzberg, Chapter 409, Statutes of 1999) required all
persons serving as a conservator or guardian to register with
the Statewide Registry, as specified.
AB 759 (Friedman, Chapter 70, Statutes of 1990) revised and
recast the Probate Code, which included the powers and duties of
conservators.
**************