BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       SB 1452|
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                                      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  








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             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  








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             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)  








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             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  








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          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.









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          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








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          4/6/16 16:54:41


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