BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 541 A
Assembly Member Harman B
As Amended June 6, 2005
Hearing Date: June 28, 2005
Family and Probate Codes 5
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SUBJECT
Guardians
DESCRIPTION
This bill proposes two changes affecting guardians. First,
this bill would allow the juvenile court to order drug and
alcohol testing for a person seeking guardianship or
visitation in a guardianship. Second, this bill would also
eliminate the requirement that guardians of the person
register with the Statewide Registry.
BACKGROUND
AB 1108 (Bermudez), Chapter 19, Statutes of 2004,
established that a court could, within specified
guidelines, order a parent seeking child custody or
visitation to undergo alcohol or drug testing when a
preponderance of the evidence indicates that the parent
engages in frequent, habitual or continual use of
controlled substances or abuse of alcohol. The court may
then consider the results of the test when determining
which placement or custody arrangement is in the best
interests of the child. This legislation sunsets on
January 1, 2008.
When it is necessary or convenient, the court may appoint a
person or entity to be a guardian for another person.
[Probate Code Section 1514.] There are three types of
guardians: guardians of the person, guardians of the
(more)
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Page 2
estate, and guardians of both the person and estate. [Id.]
AB 925 (Hertzberg), Chapter 409, Statutes of 1999, required
the Department of Justice to establish and maintain a
Statewide Registry for private professional guardians and
conservators. Private professional guardians, defined as
persons or entities appointed as guardians of the estate,
or person, or both, of two or more wards, are required to
register and disclose certain information to the Statewide
Registry. Since the establishment of the Statewide
Registry, the requirements for registration have been
repeatedly fine-tuned. The initial legislation exempted a
guardian related to the ward by blood, marriage, or
adoption. Non-related foster parents were exempted in
2002. [AB 3036 (Corbett) Chapter 1115, Statutes of 2002.]
In 2003, the registration requirement was expanded to
include all trustees, with certain exceptions. [SB 294
(Soto) Chapter 629, Statutes of 2003.] In 2004, the
exceptions for trustees were modified, and the exceptions
for related guardians were expanded to include those
related by domestic partnership or cohabitation. [SB 1248
(Bowen) Chapter 548, Statutes of 2004.]
CHANGES TO EXISTING LAW
1. Existing law provides that a parent seeking child custody
or visitation may be ordered to undergo drug or alcohol
testing if the court determines that a preponderance of
the evidence shows that the parent uses controlled
substances or alcohol frequently, habitually, or
continually. [Family Code Section 3041.5.]
This bill would allow a juvenile court to order the same
drug testing for people seeking to obtain guardianship or
visitation in a guardianship of a minor ward of the
juvenile court.
2. Existing law requires all private professional
conservators and guardians to register with the Statewide
Registry by providing specified information to the
Department of Justice. [Probate Code Section 2850.]
Existing law exempts guardians related to the ward by
blood, marriage, adoption, or domestic partnerships from
AB 541 (Harman)
Page 3
the Statewide Registry requirements. [Probate Code
Section 2854.]
Existing law exempts foster parents from the Statewide
Registry requirements. [Probate Code Section 2341.]
This bill would also exempt all guardians of the person
from this registration requirement.
COMMENT
1. Need for the bill
Drug Testing
Last year's AB 1108 (Bermudez) Chapter 19, Statutes of
2004, gave family courts the authority to require drug
testing of parents seeking custody or visitation with
their children. The author points out that although this
valuable tool is available to courts to protect children
from their parents, current law does not does not permit
courts to order drug testing for other related or
non-related people seeking to become guardians of
children pursuant to the Probate Code. The sponsor,
California Judges Association (CJA), maintains 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, or
grandparents seeking guardianships of children."
Accordingly, this bill would extend the court's authority
to require drug testing to people seeking guardianship or
visitation in a guardianship proceeding under the Probate
Code.
Registration Exemption
Current law requires private professional guardians of
the person, of the estate, or both, to register with the
Statewide Registry, maintained by the Department of
Justice. This bill would remove the registration
requirement for guardians of the person. According to
CJA:
As opposed to guardians of estates, where the
professional fiduciary takes charge of property and
assets belonging to the child, guardians of the person
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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.
CJA maintains that guardians of the person are already
subject to other more appropriate oversight and that
registration of these guardians does not serve the
purpose of the Statewide Registry because guardians of
the person do not have access to or control of their
ward's finances. Additionally, the sponsor asserts that
the filing requirements are burdensome and expensive and
may discourage some potential guardians.
2. Exempting guardians of the person seems consistent with
the goals of the Statewide Registry
The Statewide Registry was created by AB 925 (Hertzberg)
Chapter 409, Statutes of 1999, in response to reports of
widespread financial fraud and abuse perpetrated on the
elderly and dependent adults by their conservators and
guardians. Additionally, it was noted that the baby
boomers were reaching the age where they might become
incapable of caring for themselves and would need
conservators appointed, thus increasing dramatically the
number of conservatorship cases. It was determined that
tracking how conservators manage their cases would be
increasingly difficult without some sort of centralized
information or recordkeeping mechanism. AB 925
established that mechanism by requiring the Department of
Justice to create and maintain a Statewide Registry and
required all private professional guardians and
conservators to register. Later, all trustees were also
required to register. [SB 294 (Soto) Chapter 629,
Statutes of 2003.]
A private professional guardian required to register is a
person or entity who is appointed as guardian of the
estate, or person, or both, of two or more wards at the
same time who are not related to the guardian by blood,
marriage, adoption, or domestic partnership. Legislation
in 2002 also exempted non-related foster parents from
registration. [AB 3036 (Corbett) Chapter 1115, Statutes
AB 541 (Harman)
Page 5
of 2002.] Thus, the Probate Code already exempts most
guardians of the person from the Statewide Registry
requirement. This bill would exempt any remaining
guardians of the person.
The sponsor maintains that there are a significant number
of non-related guardians of the person for whom
registration is unnecessary and does not serve the
purposes of the registry. Most of these guardians are de
facto family members, some no longer related to their
wards because of divorce, termination of domestic
partnership, or end of cohabitation. Sometimes they are
simply friends of the family. Frequently they are pro
pers. CJA contends that often, the registration
requirements can be overwhelming to someone unfamiliar
with the legal system. Given that the registration fee
is currently $385 every three years, the author and
sponsor maintain that the expense of registration
discourages many people from agreeing to guardianship.
Additionally, guardians of the person are subject to
other oversight more appropriate for guardians
responsible for the health, safety and welfare of the
ward rather than the ward's finances. Probate Code
Section 1513 provides that, unless waived by the court,
an investigation must be conducted addressing the social
history of the guardian and the proposed ward, the
relationship between the two, and the anticipated
duration of the guardianship. After appointment,
guardians are required to provide an annual status report
to the court. By contrast, the information required to
be disclosed in the Statewide Registry includes the
guardian's name, professional name, business address and
telephone number, educational and professional
background, names of current wards, the aggregate dollar
value of all assets currently under the guardian's
supervision, and whether the guardian has ever been
removed for cause or resigned as a guardian. Because
guardians of the person are already subject to
appropriate oversight, and because their registration
does not seem to serve the aims of the Statewide
Registry, this bill's proposal to eliminate the
registration requirement for guardians of the person
appears reasonable.
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Page 6
However, some guardians of the person receive
compensation for their services. [See Probate Code
Section 2643.] While these guardians are not in control
of their wards' finances, their interests in providing
for the health, safety and welfare of their wards may be
compromised by the fact that they are getting paid.
Although admittedly rare, there are some "professional"
guardians of the person-people who make a living by
acting as guardian of the person for multiple wards. In
these cases, the purposes of the registry would be served
by requiring these guardians to disclose the number of
wards under their care.
SHOULD THIS BILL BE AMENDED TO ALLOW THE COURT TO REQUIRE
REGISTRATION BY NON-RELATED GUARDIANS OF THE PERSON WHO
RECEIVE COMPENSATION FOR THEIR SERVICES WHEN THE COURT
DEEMS REGISTRATION APPROPRIATE?
Any amendment allowing the court to require registration
of guardians of the person would have to be drafted to
preserve the current registration exemption for foster
parents.
3. Original legislation establishing court ordered drug
testing included substantial safeguards
AB 1108 (Bermudez) Chapter 19, Statutes of 2004, was
enacted in response to an appellate court decision which
held that a trial court could not compel a father to
undergo drug testing in order for the court to assess
allegations of the father's drug use. To ensure the
statute did not violate a parent's constitutional rights
against unreasonable searches, several safeguards were
incorporated into the statute. Before the court may
order drug testing, the court must determine, by a
preponderance of the evidence, that the parent to be
tested has engaged in the habitual, frequent, or
continual use of illegal drugs or abuse of alcohol. The
evidence supporting this finding may include a conviction
within the last five years for illegal use or possession
of a controlled substance. The testing, if ordered, must
be conducted using the least intrusive method possible
and in conformance with federal standards for conducting
drug testing of federal employees. A parent has a right
to a hearing to challenge a positive result, and a
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Page 7
positive result cannot, by itself, constitute grounds for
not placing the child with the parent, but rather the
court must consider all factors when determining the best
interest of the child. The results of the tests are
confidential. Additionally, the provisions allowing for
drug testing sunset on January 1, 2008.
Because the risks to a child are similar whether a parent
or guardian has a substance abuse issue, and because the
current statute permitting drug testing of parents in
custody proceedings contains substantial constitutional
safeguards, it seems reasonable to extend the testing to
guardians or those seeking visitation in a guardianship
proceeding.
Support: Judicial Council of California; Family Law Section
of the State Bar of California; California
Advocates, Inc.; Academy of California Adoption
Lawyers
Opposition: None Known
HISTORY
Source: California Judges Association
Related Pending Legislation: None Known
Prior Legislation: AB 1108 (Bermudez) Chapter 19,
Statutes of 2004, authorized testing for
controlled substances and alcohol for parents
seeking child custody or visitation when the
parent engages in habitual use of controlled
substances or alcohol
SB 1248 (Bowen) Chapter 548, Statutes of
2004, modified exceptions for trustees and
exempted guardians related to their wards by
domestic partnership or cohabitation
SB 294 (Soto) Chapter 629, Statutes of 2003,
extended Statewide Registry requirements to
all trustees, with certain exceptions
AB 3036 (Corbett) Chapter 1115, Statutes of
AB 541 (Harman)
Page 8
2002, exempted nonrelated foster parents from
registration with the Statewide Registry
AB 925 (Hertzberg) Chapter 409, Statutes of
1999, required the Department of Justice to
establish the Statewide Registry and required
all private professional conservators and
guardians to register
Prior Vote: Assembly Floor (71 ayes, 0 noes)
Assembly Appropriations (18 ayes, 0 noes)
Assembly Judiciary (8 ayes, 0 noes)
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