BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1452| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- CONSENT Bill No: SB 1452 Author: Wieckowski (D) Amended: 3/28/16 Vote: 21 SENATE JUDICIARY COMMITTEE: 7-0, 4/5/16 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski SUBJECT: Conservators SOURCE: Author DIGEST: This bill specifies 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. This bill also makes technical revisions and corrects a cross-reference. ANALYSIS: Existing law: 1) 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 SB 1452 Page 2 financial assets. 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. 3) Requires specified information to be included in the petition. 4) 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. 5) 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. 6) 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; 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. 7) 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; 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. 8) 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 SB 1452 Page 3 by an order stating either of the following: (a) 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 (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. 9) 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. 10)Requires, prior to the authorization from the court, the guardian or conservator to disclose to the court in writing his or her financial interest in the entity. 11)Defines "financial interest" to mean: (a) an ownership interest in a sole proprietorship, a partnership, or a closely held corporation; (b) an ownership interest of greater than one percent of the outstanding shares in a publicly traded corporation; or (c) being an officer or a director of a corporation. 12) Establishes, under the Professional Fiduciaries Act (PFA), a licensing and disciplinary scheme for a professional fiduciary and defines "professional fiduciary" to mean a person who acts as a conservator, guardian, trustee, 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. 13) 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: (a) holds a valid, unexpired, unsuspended license as a professional fiduciary under the PFA; (b) is exempt from the definition of "professional fiduciary" under the PFA; or (c) SB 1452 Page 4 is exempt from the licensing requirements of the PFA. 14) 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. This bill: 1) Specifies that a conservatee also retains the personal right to receive electronic mail. 2) Replaces the requirement that a guardian or conservator required to register as a professional fiduciary with the Statewide Registry with a guardian or conservator required to be licensed under the PFA. 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 SB 1452 Page 5 fiduciary is not related. Professional fiduciaries are licensed and disciplined under the PFA. 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 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 clarifies 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, strikes that reference and instead refers to licensing under the PFA. Comments The author writes: 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. Prior Legislation 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. SB 1452 Page 6 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. SB 1550 (Figueroa, Chapter 491, Statutes of 2006) repealed the Statewide Registry and, instead, established the PFA. AB 1950 (Pacheco, Chapter 565, Statutes of 2000) prohibited a guardian or conservator, who is required to register with the Statewide Registry from hiring or referring any business to an entity in which he or she has financial interest except upon authorization from the court. 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified4/5/16) California Advocates for Nursing Home Reform Professional Fiduciary Association of California OPPOSITION: (Verified4/5/16) None received Prepared by:Tara Welch / JUD. / (916) 651-4113 SB 1452 Page 7 4/6/16 16:54:41 **** END ****