BILL ANALYSIS
AB 541
Page 1
Date of Hearing: March 29, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 541 (Harman) - As Introduced: February 16, 2005
PROPOSED CONSENT (As Proposed To Be Amended)
SUBJECT : GUARDIANS: DRUG TESTING AND REGISTRATION
KEY ISSUES :
1)SHOULD A PROSPECTIVE GUARDIAN, IN APPROPRIATE CIRCUMSTANCES,
BE REQUIRED TO UNDERGO THE SAME DRUG TESTING PROCEDURES
REQUIRED OF A PERSON SEEKING CUSTODY AND VISITATION WITH A
CHILD?
2)SHOULD GUARDIANS OF THE PERSON, AS OPPOSED TO GUARDIANS OF THE
ESTATE, BE EXEMPTED FROM REGISTERING WITH THE STATEWIDE
REGISTRY?
SYNOPSIS
This bill, sponsored by the California Judges Association, would
make two changes relating to guardians. First, this bill would
allow the court to test prospective guardians for drugs or
alcohol, if appropriate, following the identical procedures
established by the Legislature last year for parents seeking
custody and visitation. The California Judges Association
argues that children are subject to exactly the same risks as a
result of abuse of drugs or alcohol, whether that abuse is done
by a parent or guardian. Therefore, they argue, guardians
should be treated exactly like parents; and courts should be
able to order drug testing of guardians, in appropriate cases,
under the same conditions as they could order drug testing of
parents.
Second, the bill would exempt guardians of the person only from
having to register with the Statewide Registry. The Statewide
Registry, which is maintained by the Department of Justice and
requires registration by conservators, guardians and trustees,
was designed to counter widespread financial fraud and abuse
perpetrated on the elderly and dependent adults by their
conservators, guardians or trustees. According to the sponsor,
the Registry is designed to ensure fiduciary accountability of
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conservators, guardians of the estate and trustees. However,
guardians of the person only have very different non-fiduciary
responsibilities that do not correspond well with the purposes
of the Registry. These guardians are not responsible for fiscal
matters; rather they are responsive for ensuring the health,
safety and welfare of the ward, usually a minor child, and other
laws provide more relevant oversight. Therefore, registration
with the Statewide Registry, argue the judges, is unnecessary
for guardians of the person only.
SUMMARY : Allows prospective guardians to be subject to drug
testing and exempts guardians of the person from registering
with the Statewide Registry. Specifically, this bill :
1)Provides that in any guardianship proceeding, the court may
order any person seeking guardianship 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 the evidence that there is the habitual,
frequent, or continual illegal use of controlled substances,
or the habitual or continual abuse of alcohol by the
prospective guardian. These provisions will sunset as of
January 1, 2008. The Judicial Council is required to submit
an interim report to the Legislature regarding implementation
of these provisions no later than July 1, 2005, and a final
report by July 1, 2007.
2)Requires, if the court orders substance abuse testing, that
the testing 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 and that any person who has undergone drug testing
shall have the right to a hearing, if requested, to challenge
a positive test result, and that a positive test result, by
itself, shall not constitute grounds for an adverse decision.
3)Exempts guardians of the person only from the definition of
"private professional guardian" who are subject to
registration requirements with the county clerk and the
Statewide Registry of conservators, guardians and trustees.
EXISTING LAW :
1)Provides that in any custody or visitation proceeding, the
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court may order any parent seeking custody visitation 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 the 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. The testing must 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. Any person who has
undergone drug testing shall have the right to a hearing. The
drug testing provisions sunset as of January 1, 2008. The
Judicial Council is required to submit an interim report to
the Legislature regarding implementation of this section no
later than July 1, 2005, and a final report by July 1, 2007.
(Family Code Section 3041.5.)
2)Requires conservators, guardians and trustees to register with
the Statewide Registry on or before a specified date, or face
removal by the court, and requires the Department of Justice
to maintain the Registry. (Probate Code Sections 2340, 2850
and 2851.)
3)Exempts from the registration requirements conservators,
guardians or trustees who are related to the conservatee, ward
or trustor by blood, marriage, adoption, registered domestic
partnership or unregistered domestic partnership provided
certain conditions are met. (Probate Code Section 2854.)
4)Exempts from the registration and filing requirements of the
Statewide Registry non-related guardians of the person
appointed by the court for foster children or for children who
are at risk of being placed in foster care. (Probate Code
Section 2854.)
5)Provides for the appointment of a guardian of a minor's person
or estate or both, upon petition to the court and if the court
finds it necessary and convenient. (Probate Code Sections
1510 et seq.)
6)Requires courts, to the extent resources are available, to
implement procedures to ensure every guardian completes an
annual status report. (Probate Code Section 1513.2.)
7)Unless waived by the court, requires that a court
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investigator, probation officer or domestic relations
investigator make an investigation and file with the court a
report and recommendation concerning each proposed
guardianship of the person or of the estate, and sets forth
the information to be included in the report. (Probate Code
Section 1513.)
8)Requires a nonrelative petitioner seeking a guardianship to
mail a notice to the Department of Social Services or the
local agency designated to investigate guardianships.
(Probate Code Section 1542.)
9)In appointing a guardian of the person only, the court is
governed by the family law requirements that must be
considered when granting custody of a child, including giving
courts the widest discretion to make decisions in the best
interest of the child. (Probate Code Section 1514; Family
Code Sections 3020 et seq.; Family Code Sections 3040 et seq.)
FISCAL EFFECT : As currently in print, this bill is keyed
fiscal.
COMMENTS : This bill, sponsored by the California Judges
Association, would make two changes relating to guardians.
First, this bill would allow the court to test prospective
guardians for drugs or alcohol, if appropriate, following the
identical procedures established by the Legislature last year
for parents seeking custody and visitation. Second, the bill
would exempt guardians of the person only from having to
register with the Statewide Registry.
According to the author, the first part of this bill is
necessary because, although last year courts were given the
authority to order drug testing of parents seeking custody or
visitation:
Present law does not permit courts to order drug tests
for grandparents, other relatives, or non-related
persons seeking to become guardians of children
pursuant to the Probate Code. The sponsor believes
that exactly the same risks to children arise if their
caretakers engage in habitual, frequent or continual
illegal use of controlled substances, regardless of
whether the legal context is parents seeking custody,
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or grandparents seeking guardianships of children. AB
541 broadens the testing authority to guardianship
proceedings, but with the same limitations, reporting,
and sunset provisions currently contained in the law
in the custody context.
In addition, the author argues that guardians of the person
only, as opposed to guardians of the estate, should not have to
register with the Statewide Registry:
Current law requires certain guardians of either the
person, or the estate, or both, to register. The
sponsor proposes to eliminate the registration
requirement for guardians of the person only. As
opposed to guardians of estates, where the
professional fiduciary takes charge of property and
assets relating to the child, guardians of the person
only are typically family members who assume the role
of physical caretaker. Even if the guardian assumes
the responsibility for two wards under the statute
(for example, a brother and sister), the same
fiduciary risks do not arise with respect to guardians
of the person only. Eliminating the responsibility
that these guardians must register removes a
bureaucratic responsibility from these caretakers.
Drug Testing . AB 1108 (Bermudez), Chapter 19 of the Statutes of
2004, which was enacted through urgency legislation, permits a
court to order a parent seeking child custody or visitation to
undergo testing for drug or alcohol use when a preponderance of
evidence indicates that the parent engages in frequent or
habitual use of controlled substances or abuse of alcohol. That
legislation stemmed from Wainright v. Superior Court (2000) 84
Cal.App.4th 262, which vacated a trial court order compelling a
father to undergo drug testing in order for the court to assess
allegations regarding the father's drug use.
In response to constitutional concerns, AB 1108 requires a
judicial determination, based on a preponderance of the
evidence, that the parent to be tested was abusing drugs or
alcohol and that the drug test be performed in the least
intrusive method available, be done in accordance with standards
established by the U.S. Department of Health and Human Services
and be subject to challenge. The legislation sunsets on January
1, 2008. With these limitations in place, the legislation
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passed without any "No" votes in the Assembly and with only a
single "No" vote in the Senate.
The California Judges Association argues that children are
subject to exactly the same risks as a result of abuse of drugs
or alcohol, whether that abuse is done by a parent or guardian.
Therefore, they argue, guardians should be treated exactly like
parents; and courts should be able to order drug testing of
guardians, in appropriate cases, under the same conditions as
they could order drug testing of parents.
Statewide Registry . AB 925 (Hertzberg), Chapter 409 of the
Statutes of 1999, required all private professional conservators
and guardians to register in a Statewide Registry maintained by
the Department of Justice. AB 925 was a response to reports of
widespread financial fraud and abuse perpetrated on the elderly
and dependent adults by their conservators or guardians. SB 294
(Soto), Chapter 629 of the Statutes of 2003, extended the
Statewide Registry requirements to all trustees (with certain
exceptions). SB 294 resulted from the rising popularity of
trusts as estate planning tools, necessitating the oversight now
provided by the Statewide Registry.
Under existing law, all people required to file information with
the clerk of the court in the county in which they do business
as a professional conservator, guardian or trustee must also
file a declaration with the Statewide Registry. The Registry
maintains information on the registrants, including information
received from the courts on complaints lodged or judgments
rendered against the registrants. There are a number of
exemptions from the registration requirements of the Statewide
Registry. These include exemptions for relatives and exemptions
for non-related guardians of the person appointed by the court
for foster children or for children who are at risk of being
placed in foster care. The registration fee for each three-year
period is $385.
According to the sponsor, the Registry is designed to ensure
fiduciary accountability of conservators, guardians of the
estate and trustees. However, guardians of the person only have
very different non-fiduciary responsibilities that do not
correspond with the purposes of the Registry. These guardians
are not responsible for fiscal matters; rather they are
responsive for ensuring the health, safety and welfare of the
ward, usually a minor child. These are not areas that the
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Statewide Registry was intended to oversee or help secure.
Moreover, guardians of the person are subject to other, more
appropriate oversight. For example, unless waived by a court, a
prospective guardian is subject to investigation by a court
investigator, probation officer or domestic relations
investigator. The investigation includes the social history of
both the guardian and the ward and the relationship of the two.
Additionally, guardians are required to provide a status report
annually to the court.
Given the existing oversight requirements already provided for
guardians of the person only and the apparent disconnect between
the purposes of the Statewide Registry and the role of guardians
of the person only, the requirement that a guardian of a person
only be required to register with the Statewide Registry appears
to be unnecessary. In addition, given the time and,
particularly, the expense of registering, a requirement to
register likely limits the number of individuals willing to
serve as guardians.
Prior Legislation : AB 925 (Hertzberg), Chapter 409, Statutes of
1999, required all private professional conservators and
guardians to register in a Statewide Registry
AB 3036 (Corbett), Chapter 1115, Statutes of 2002, exempted
foster parents from registering with the Statewide Registry and
required annual status reports from guardians.
SB 294 (Soto), Chapter 629, Statutes of 2003, extended the
Statewide Registry requirements to all trustees, subject to
certain exceptions.
AB 1108 (Bermudez), Chapter 19, Statutes of 2004, permitted a
court, under specified guidelines, to order a parent seeking
child custody or visitation to undergo testing for drug or
alcohol use when a preponderance of evidence indicates that the
parent engages in frequent or habitual use of controlled
substances or abuse of alcohol.
REGISTERED SUPPORT / OPPOSITION :
Support
California Judges Association (sponsor)
Academy of California Adoption Lawyers
AB 541
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Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334