BILL NUMBER: AB 541	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Harman

                        FEBRUARY 16, 2005

   An act to amend Section 3041.5 of the Family Code, and to amend
Sections 2341 and 2854 of the Probate Code, relating to guardians.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 541, as introduced, Harman.   Guardians.
   (1) Existing law, until January 1, 2008, authorizes a court to
require any parent who is seeking custody of, or visitation with, a
child who is the subject of a custody proceeding, to undergo testing
for the illegal use of controlled substances and the use of alcohol
under specified circumstances. Existing law requires the court to
order the least intrusive method of testing. Existing law requires
that testing be in conformity with certain federal procedures,
provides that the results of this testing shall be confidential and
maintained as a sealed record, and permits a parent or legal
custodian who is tested to contest the test results at a hearing.
   This bill would also authorize a court to require any person who
is seeking custody of, or visitation with, a child who is the subject
of a guardianship proceeding, to undergo drug testing pursuant to
the above-described procedures.
   (2) Existing law requires the Department of Justice to maintain a
Statewide Registry of conservators and guardians, and requires all
persons who wish to serve as a conservator or guardian, or who are
currently serving as a conservator or guardian, to register and
reregister with the Statewide Registry. Existing law excepts certain
nonrelated guardians of the person of a minor, appointed under
specified circumstances by the juvenile court or the probate court,
from those registration and filing requirements.
   This bill would delete the exception applicable to nonrelated
guardians.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 3041.5 of the  Family Code  is amended to read:

   3041.5.  (a) In any custody or visitation proceeding brought under
this part, as described in Section 3021,  or any guardianship
proceeding brought under the Probate Code,  the court may order
any  parent   person  who is seeking
custody of, or visitation with, a child who is the subject of the
proceeding to undergo testing for the illegal use of controlled
substances and the use of alcohol if there is a judicial
determination based upon a preponderance of evidence that there is
the habitual, frequent, or continual illegal use of controlled
substances or the habitual or continual abuse of alcohol by the
parent  or   , legal custodian  , or
person seeking guardianship  . This evidence may include, but
may not be limited to, a conviction within the last five years for
the illegal use or possession of a controlled substance. The court
shall order the least intrusive method of testing for the illegal use
of controlled substances or the habitual or continual abuse of
alcohol by either or both parents  or   , 
the legal custodian  ,   or   person seeking
  guardian   ship  . If substance abuse
testing is ordered by the court, the testing shall be performed in
conformance with procedures and standards established by the United
States Department of Health and Human Services for drug testing of
federal employees. The parent  or   , 
legal custodian  , or   person seeking  
guardian   ship  who has undergone drug testing shall
have the right to a hearing, if requested, to challenge a positive
test result. A positive test result, even if challenged and upheld,
shall not, by itself, constitute grounds for an adverse custody
decision. Determining the best interests of the child requires
weighing all relevant factors. The results of this testing shall be
confidential, shall be maintained as a sealed record in the court
file, and may not be released to any person except the court, the
parties, their attorneys, the Judicial Council (until completion of
its authorized study of the testing process) and any person to whom
the court expressly grants access by written order made with prior
notice to all parties. Any person who has access to the test results
may not disseminate copies or disclose information about the test
results to any person other than a person who is authorized to
receive the test results pursuant to this section. Any breach of the
confidentiality of the test results shall be punishable by civil
sanctions not to exceed two thousand five hundred dollars ($2,500).
The results of the testing may not be used for any purpose, including
any criminal, civil, or administrative proceeding, except to assist
the court in determining, for purposes of the proceeding, the best
interest of the child pursuant to Section 3011, and the content of
the order or judgment determining custody or visitation. The court
may order either party, or both parties, to pay the costs of the drug
or alcohol testing ordered pursuant to this section. As used in this
section, "controlled substances" has the same meaning as defined in
the California Uniform Controlled Substances Act, Division 10
(commencing with Section 11000) of the Health and Safety Code.(b)
This section shall remain in effect only until January 1, 2008, and
as of that date is repealed, unless a later enacted statute, that is
enacted before January 1, 2008, deletes or extends that date.
  SEC. 2.  Section 2341 of the  Probate Code  is amended to read:
   2341.  (a) As used in this article, "private professional
conservator" means a person or entity appointed as conservator of the
person or estate, or both, of two or more conservatees at the same
time who are not related to the conservator by blood or marriage,
except a bank or other entity authorized to conduct the business of a
trust company, or any public officer or public agency including the
public guardian, public conservator, or other agency of the State of
California. In the case of an entity, all natural persons who are
authorized by the entity to perform the functions of a conservator
shall comply with this article. The court may, at its discretion,
require any person who is the conservator for only one conservatee
not related to the conservator by blood or marriage to comply with
this article, and in that case, references in this article to a
"private professional conservator" includes those persons.(b) As used
in this article, "private professional guardian" means a person or
entity appointed as guardian of  the person or estate, or
both, of  two or more wards at the same time who are not
related to the guardian by blood or marriage, except a bank or other
entity authorized to conduct the business of a trust company, or any
public officer or public agency including the public guardian, public
conservator, or other agency of the State of California.  In the
case of an entity, all natural persons who are authorized by the
entity to perform the functions of a guardian shall comply with this
article. The court may, at its discretion, require any person who is
the guardian for only one ward not related to the guardian by blood
or marriage to comply with this article, and in that case, references
in this article to a "private professional guardian" includes those
persons.  
   As used in this article, "private professional guardian" does not
include a nonrelated guardian of the person of a minor appointed by
the court, where the appointment results from the selection of a
permanency plan for a dependent child or ward pursuant to Section
366.26 of the Welfare and Institutions Code. It also does not include
a nonrelated guardian of the person of a minor appointed by the
court pursuant to Section 1514 if that child is in receipt of AFDC-FC
payments and case management services from the county welfare
department, as evidenced by a Notice of Action of AFDC-FC
eligibility. 
   (c) As used in this article, "private professional trustee" means
a nonprofit charitable corporation appointed as trustee pursuant to
Section 15604.
  SEC. 3.  Section 2854 of the  Probate Code  is amended to read:
   2854.  (a) This chapter does not apply to any public conservator
or public guardian with regard to his or her official acts in that
capacity.(b) This chapter does not apply to any conservator,
guardian, or trustee when the person is related to the conservatee,
ward, or trustor by blood, marriage, adoption, registered domestic
partnership, or a relationship that satisfies the requirements of
subdivision (a) and paragraphs (1) to (4), inclusive, and paragraph
(6) of subdivision (b) of Section 297 of the Family Code.
   (c) This chapter does not apply to any trustee who is serving for
the benefit of not more than three people or not more than three
families, or a combination of people or families that does not total
more than three. The number of trust beneficiaries does not count for
the purposes of calculating if a trustee falls within this
exclusion. A trust excluded under subdivision (a) or (b) does not
count for the purpose of calculating if a trustee falls within this
exclusion. For the purposes of this subdivision, family means people
who are related by blood, marriage, adoption, registered domestic
partnership, or a relationship that satisfies the requirements of
subdivision (a) and paragraphs (1) to (4), inclusive, and paragraph
(6) of subdivision (b) of Section 297 of the Family Code.
   (d) This chapter does not apply to any conservator or guardian who
is not required to file information with the clerk of the court
pursuant to Section 2340, to any person or entity subject to the
oversight of a local government, including an employee of a city,
county, or city and county, or to any person or entity subject to the
oversight of the state or federal government, including an attorney
licensed to practice law in the State of California who acts as
trustee of only attorney client trust accounts, as defined in Section
6211 of the Business and Professions Code.
   (e) This chapter does not apply to any conservator who resided in
the same home with the conservatee immediately prior to the condition
or event that gave rise to the necessity of a conservatorship. This
subdivision does not create any order or preference of appointment,
but simply exempts a conservator described by this subdivision from
registration.
   (f)  This chapter does not apply to a nonrelated guardian
of the person of a minor appointed by the court as the result of the
selection of a permanency plan for a dependent child or ward pursuant
to Section 366.26 of the Welfare and Institutions Code. It also does
not include a nonrelated guardian of the person of a minor appointed
pursuant to Section 1514 if that child is in receipt of AFDC-FC
payments and case management services from the county welfare
department, as evidenced by a Notice of Action of AFDC-FC
eligibility. 
    (g)    This chapter does not
apply to a trustee who is any of the following:
   (1) Trust companies, as defined in Section 83.
   (2) FDIC insured institutions, their holding companies,
subsidiaries or affiliates. For the purposes of this paragraph,
"affiliate" means any entity that shares an ownership interest with
or that is under the common control of, the FDIC insured institution.

   (3) Employees of any entity listed in paragraph (1) or (2) while
serving as trustees in the scope of their duties.