BILL ANALYSIS Ó
SB 1452
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Date of Hearing: June 8, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1452 (Wieckowski) - As Amended March 28, 2016
PROPOSED CONSENT
SENATE VOTE: 36-0
SUBJECT: ConservatEEs: PERSONAL RIGHTS
KEY ISSUE: SHOULD THE LAW BE CLARIFIED TO CONFIRM THAT
CONSERVATEES RETAIN THEIR PERSONAL RIGHT TO RECEIVE ELECTRONIC
MAIL, IN ADDITION TO RECEIVING REGULAR MAIL, VISITS, AND PHONE
CALLS?
SYNOPSIS
In California, if an adult is unable to manage his or her
medical and personal decisions, a conservator of the person may
be appointed. While a conservator of the person has charge of
the care, custody and control of the conservatee, that power is
not absolute. In 2013, the Legislature clarified that a
conservator's duty of care, custody, and control of the
conservatee does not extend to the personal rights of the
conservatee, including, but not limited to, the right to receive
visitors, telephone calls, and personal mail, unless
specifically limited by court order. (AB 937 (Wieckowski),
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Chap. 127, Stats. 2013.) Last year, the Legislature also
clarified that a court may issue an order to enforce a
conservatee's rights to receive the visits, calls and letters,
as well as an order that directs the conservator to allow those
visitors, telephone calls, and personal mail. (AB 1085 (Gatto),
Chap. 92, Stats. 2015.) This bill additionally clarifies that a
conservatee retains the personal right to receive electronic
mail and provides the court with the authorization to issue an
order specifically granting the conservator power to enforce the
conservatee's right to receive electronic mail or directing the
conservator to allow electronic mail to be delivered to the
conservatee.
According to the author, "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" and the codes should be updated to reflect that. This
bill is supported by California Advocates for Nursing Home
Reform and the Professional Fiduciary Association of California
and there is no reported opposition.
SUMMARY: Specifies that a conservatee retains the personal
right to receive electronic mail. Specifically, this bill:
1)Specifies that a conservatee retains the personal right to
receive electronic mail.
2)Provides the court authorization to issue an order
specifically granting a conservator power to enforce the
conservatee's right to receive electronic mail or directing
the conservator to allow electronic mail to be delivered to
the conservatee.
3)Makes non-substantive, technical changes.
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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
financial assets. (Probate Code Section 1800 et seq. Unless
stated otherwise, all further statutory references are to that
code.)
2)Provides that a conservator, but not a limited conservator,
has the care, custody, and control of a conservatee.
Provides, however, that 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. (Section 2351.)
3)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. (Id.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: 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 or conservatee's
financial matters. If the adult is unable to manage his or her
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medical and personal decisions, a conservator of the person may
be appointed. While a conservator has charge of the care,
custody and control of the conservatee, that power is not
absolute. In 2013, the Legislature clarified that a
conservator's duty of care, custody, and control of the
conservatee does not extend to the personal rights of the
conservatee, including, but not limited to, the right to receive
visitors, telephone calls, and personal mail, unless
specifically limited by court order. (AB 937 (Wieckowski),
Chap. 127, Stats. 2013.) Last year, the Legislature also
clarified that a court may issue an order to enforce a
conservatee's rights to receive the visits, calls and letters,
as well as an order that directs the conservator to allow those
visitors, telephone calls, and personal mail. (AB 1085 (Gatto),
Chap. 92, Stats. 2015.) This bill additionally clarifies that a
conservatee retains the personal right to receive electronic
mail (hereafter "email") and provide the court authorization to
issue an order specifically granting the conservator with the
power to enforce the conservatee's right to receive email or
directing the conservator to allow email to be delivered to the
conservatee.
In support of the bill, 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 as an important personal right."
California Advocates for Nursing Home Reform adds: "Obviously,
email is an important form of personal communication and merits
the same protections as phone calls and other written
correspondence."
Mandatory Judicial Council Form Specifically Recognizes the
Conservatees' Rights: At the start of the conservatorship, the
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conservator is required by law to send the conservatee and the
conservatee's relatives the order establishing the
conservatorship and a notice of conservatee rights form
developed by the Judicial Council. That form, Judicial Council
Form GC-341, states:
When a person becomes a conservatee, he or she does not
necessarily lose the right to take part in important
decisions affecting his or her property or way of life.
Every conservatee has the right to be treated with
understanding and respect and to have his or her wishes
considered. Every conservatee has all basic human rights
and the rights to be well cared for by his or her
conservator. . . .
The conservatee will be allowed the greatest degree of
freedom and privacy possible consistent with the underlying
reasons for the conservatorship. The conservator should
give as much regard to the wishes of the conservatee as
possible under the circumstance so that the conservatee may
function at the highest level his or her ability permits.
The conservator must give due regard to the preferences of
the conservatee and to encourage the conservatee's
participation in decision-making.
The form goes on to provide that, unless a court has limited or
taken away the right, the conservatee keeps the right to, among
other things, receive personal mail, receive visits from family
and friends, vote and marry.
Adding personal right of conservatee to receive electronic mail:
In 2013, AB 937 (Wieckowski), Chap. 127, 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
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situations when a conservator is supplanting his or her own
wishes for that of the conservatee, AB 1085 (Gatto), Chap. 92,
Stats. 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.
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 expands the existing list of personal rights retained by
conservatees to include the conservatee's right to receive
email.
This bill does not prevent a conservator from protecting a
conservatee from abuse: This bill in no way limits a
conservator from protecting a conservatee from abuse. If the
abuse is known from the beginning (and perhaps even part of the
reason that the conservatorship is necessary), the court, when
granting the petition establishing the conservatorship or
temporary conservatorship, can specifically limit contacts with
certain individuals if the court finds that necessary. If not
restricted up front, the conservator can always later petition
the court for further restrictions on third party contact with
the conservatee, if necessary.
Alternatively, if not limited by the court establishing and, on
a regular basis, reviewing the conservatorship, the conservator
can always seek a protective order to protect the conservatee.
In particular, Welfare & Institutions Code Section 15657.03
allows an elder or dependent adult, or a conservator, trustee or
person acting under a power of attorney, to seek a protective
order to protect the elder or dependent adult from abuse. If
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necessary to protect the elder or dependent adult immediately, a
temporary restraining order can be sought under that same code
section.
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), Chap. 565,
Stats. 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), Chap. 491, Stats. 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 updates 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 providing 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.
REGISTERED SUPPORT / OPPOSITION:
SB 1452
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Support
California Advocates for Nursing Home Reform
Professional Fiduciary Association of California
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916)
319-2334