BILL NUMBER: AB 541	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 6, 2005
	AMENDED IN ASSEMBLY  MARCH 30, 2005

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 amended, 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 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, legal custodian,  or  person seeking
guardianship  ,   or person seeking visitation in a
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, the legal custodian,  or 
person seeking guardianship  , or person seeking visitation in a
guardianship  . 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,
legal custodian,  or  person seeking guardianship
 , or person seeking visitation in a guardianship  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  or guardianship 
decision. Determining the best interests of the child requires
weighing all relevant factors.  The court shall also consider any
reports provided to the court pursuant to the Probate Code. 
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 estate 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.

   (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 trustee who is any of the
following:
   (1) Trust companies, as defined in Section 83.
   (2)  FDIC insured   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  
FDIC-insured  institution.
   (3) Employees of any entity listed in paragraph (1) or (2) while
serving as trustees in the scope of their duties.