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  







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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.

          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  








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          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,  








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          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:
          








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            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  








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          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  :








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          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.

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