BILL ANALYSIS
AB 541
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 541 (Harman)
As Amended July 7, 2005
Majority vote
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|ASSEMBLY: |71-0 |(April 21, |SENATE: |40-0 |(August 22, |
| | |2005) | | |2005) |
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Original Committee Reference: JUD.
SUMMARY : Allows prospective guardians and those seeking
visitation in a guardianship to be subject to drug testing and
exempts guardians of the person, with exceptions, from
registering with the Statewide Registry (Registry).
Specifically, this bill :
1)Provides that in any guardianship proceeding, the court may
order any person seeking guardianship or seeking visitation in
a 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 (JC) 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 (U.S.) 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, generally, 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.
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The court may at its discretion require a guardian of the
person who receives compensation for his or her services to
comply with the requirements of private professional
guardians. However, a private professional guardian may not
include an unrelated guardian appointed by the court as the
result of a permanency plan pursuant to Welfare & Institutions
Code Section 366.26 or an unrelated guardian appointed by the
court pursuant to Probate Code Section 1514 for a child in
foster care.
The Senate amendments add those seeking visitation in a
guardianship to the list of persons subject to drug testing, and
allow the court, at its discretion, to require unrelated
guardians of the person who receive compensation for their
services to be subject to registration requirements with the
county clerk and the Registry of conservators, guardians and
trustees.
EXISTING LAW :
1)Provides that in any custody or visitation proceeding, the
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 U.S. 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. JC 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.
2)Requires conservators, guardians and trustees to register with
the Registry on or before a specified date, or face removal by
the court, and requires the Department of Justice to maintain
the Registry.
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
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partnership or unregistered domestic partnership provided
certain conditions are met.
4)Exempts from the registration and filing requirements of the
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.
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.
AS PASSED BY THE ASSEMBLY , this bill allowed prospective
guardians to be subject to drug testing and exempted all
guardians of the person from registering with the Registry.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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 or those seeking visitation during a guardianship 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, with limited exceptions, from
having to register with the Registry.
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. The legislation
sunsets on January 1, 2008.
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.
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AB 925 (Hertzberg), Chapter 409 of the Statutes of 1999,
requires all private professional conservators and guardians to
register in a Statewide Registry maintained by DOJ. 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, extends the 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 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 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 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
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
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the purposes of the 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 Registry appears to be
unnecessary. However, courts are given the discretion to
require registration for an unrelated guardian of the person
only who receives compensation for his or her services.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0012025