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
SB 1452
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4/6/16 16:54:41
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