Existing law requires a conservator of the person to be responsible for the care, custody, control, and education of a conservatee, except if the court, in its discretion, limits the powers and duties of the conservator. Existing law also provides that the conservators control of the conservatee does not extend to personal rights retained by the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. Existing law authorizes the court to issue an order that specifically grants the conservator the power to enforce the conservatees rights to receive visitors, telephone calls, and personal mail or that directs the conservator to allow those visitors, calls, and mail.

This bill would add the right to receive electronic mail to a conservatees personal rights for purposes of these provisions. This bill would delete update an obsolete reference.

Existing law requires a conservator of the person to be responsible for the care, custody, control, and education of a conservatee, except if the court, in its discretion, limits the powers and duties of the conservator. Existing law also provides that the conservators control of the conservatee does not extend to personal rights retained by the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. Existing law authorizes the court to issue an order that specifically grants the conservator the power to enforce the conservatees rights to receive visitors, telephone calls, and personal mail or that directs the conservator to allow those visitors, calls, and mail.

This bill would add the right to receive electronic mail to a conservatees personal rights for purposes of these provisions. This bill would delete an obsolete reference.

Date of Hearing: June 8, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 1452

Author:(Wieckowski) – As Amended Ver:March 28, 2016

PROPOSED CONSENT

SENATE VOTE: 36-0

SUBJECT: ConservatEEs: PERSONAL RIGHTS

KEY ISSUE: SHOULD THE LAW BE CLARIFIED TO CONFIRM THAT CONSERVATEES RETAIN THEIR PERSONAL RIGHT TO RECEIVE ELECTRONIC MAIL, IN ADDITION TO RECEIVING REGULAR MAIL, VISITS, AND PHONE CALLS?

SYNOPSIS

In California, if an adult is unable to manage his or her medical and personal decisions, a conservator of the person may be appointed. While a conservator of the person has charge of the care, custody and control of the conservatee, that power is not absolute. In 2013, the Legislature clarified that a conservator’s duty of care, custody, and control of the conservatee does not extend to the personal rights of the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. (AB 937 (Wieckowski), Chap. 127, Stats. 2013.) Last year, the Legislature also clarified that a court may issue an order to enforce a conservatee's rights to receive the visits, calls and letters, as well as an order that directs the conservator to allow those visitors, telephone calls, and personal mail. (AB 1085 (Gatto), Chap. 92, Stats. 2015.) This bill additionally clarifies that a conservatee retains the personal right to receive electronic mail and provides the court with the authorization to issue an order specifically granting the conservator power to enforce the conservatee’s right to receive electronic mail or directing the conservator to allow electronic mail to be delivered to the conservatee.

According to the author, "many more current and future conservatees will be accustomed to communicating with friends and loved ones via a computer as opposed to solely through paper mail" and the codes should be updated to reflect that. This bill is supported by California Advocates for Nursing Home Reform and the Professional Fiduciary Association of California and there is no reported opposition.

SUMMARY: Specifies that a conservatee retains the personal right to receive electronic mail. Specifically, this bill:

1. Specifies that a conservatee retains the personal right to receive electronic mail.
2. Provides the court authorization to issue an order specifically granting a conservator power to enforce the conservatee’s right to receive electronic mail or directing the conservator to allow electronic mail to be delivered to the conservatee.
3. Makes non-substantive, technical changes.

EXISTING LAW:

1. Authorizes a court to appoint a conservator of the person to act on behalf of a person (conservatee) who is unable to provide for his or her own personal needs or to appoint a conservator of the estate to act on behalf of a conservatee who is incapable of managing his or her own property or other financial assets. (Probate Code Section 1800 et seq. Unless stated otherwise, all further statutory references are to that code.)
2. Provides that a conservator, but not a limited conservator, has the care, custody, and control of a conservatee. Provides, however, that this control does not extend to personal rights retained by the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. (Section 2351.)
3. Authorizes the court to issue an order that specifically grants the conservator the power to enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail, or that directs the conservator to allow those visitors, telephone calls, and personal mail. (Id.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: In California, if an adult is unable to manage his or her financial matters, a conservator of the estate may be appointed by a court to manage the adult’s or conservatee’s financial matters. If the adult is unable to manage his or her medical and personal decisions, a conservator of the person may be appointed. While a conservator has charge of the care, custody and control of the conservatee, that power is not absolute. In 2013, the Legislature clarified that a conservator’s duty of care, custody, and control of the conservatee does not extend to the personal rights of the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. (AB 937 (Wieckowski), Chap. 127, Stats. 2013.) Last year, the Legislature also clarified that a court may issue an order to enforce a conservatee's rights to receive the visits, calls and letters, as well as an order that directs the conservator to allow those visitors, telephone calls, and personal mail. (AB 1085 (Gatto), Chap. 92, Stats. 2015.) This bill additionally clarifies that a conservatee retains the personal right to receive electronic mail (hereafter “email”) and provide the court authorization to issue an order specifically granting the conservator with the power to enforce the conservatee’s right to receive email or directing the conservator to allow email to be delivered to the conservatee.

In support of the bill, the author writes: "As our population ages, many more current and future conservatees will be accustomed to communicating with friends and loved ones via a computer as opposed to solely through paper mail. This bill updates the Probate Code to account for the use of electronic mail, as well as personal mail as an important personal right."

California Advocates for Nursing Home Reform adds: "Obviously, email is an important form of personal communication and merits the same protections as phone calls and other written correspondence."

Mandatory Judicial Council Form Specifically Recognizes the Conservatees’ Rights: At the start of the conservatorship, the conservator is required by law to send the conservatee and the conservatee’s relatives the order establishing the conservatorship and a notice of conservatee rights form developed by the Judicial Council. That form, Judicial Council Form GC-341, states:

When a person becomes a conservatee, he or she does not necessarily lose the right to take part in important decisions affecting his or her property or way of life. Every conservatee has the right to be treated with understanding and respect and to have his or her wishes considered. Every conservatee has all basic human rights and the rights to be well cared for by his or her conservator. . . .

The conservatee will be allowed the greatest degree of freedom and privacy possible consistent with the underlying reasons for the conservatorship. The conservator should give as much regard to the wishes of the conservatee as possible under the circumstance so that the conservatee may function at the highest level his or her ability permits. The conservator must give due regard to the preferences of the conservatee and to encourage the conservatee’s participation in decision-making.

The form goes on to provide that, unless a court has limited or taken away the right, the conservatee keeps the right to, among other things, receive personal mail, receive visits from family and friends, vote and marry.

Adding personal right of conservatee to receive electronic mail: In 2013, AB 937 (Wieckowski), Chap. 127, specified that a conservatee retains personal rights, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. To address situations when a conservator is supplanting his or her own wishes for that of the conservatee, AB 1085 (Gatto), Chap. 92, Stats. 2015, among other things, clarified the court’s ability to issue an order that specifically grants a conservator the power to enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail, or that directs the conservator to allow those activities.

As noted by the author, more and more individuals are communicating through electronic means, whether through personal computer or other electronic devices. In recognition of the increasing use of electronic communication and to maintain a conservatee’s ability to stay in contact with loved ones, this bill expands the existing list of personal rights retained by conservatees to include the conservatee’s right to receive email.

This bill does not prevent a conservator from protecting a conservatee from abuse: This bill in no way limits a conservator from protecting a conservatee from abuse. If the abuse is known from the beginning (and perhaps even part of the reason that the conservatorship is necessary), the court, when granting the petition establishing the conservatorship or temporary conservatorship, can specifically limit contacts with certain individuals if the court finds that necessary. If not restricted up front, the conservator can always later petition the court for further restrictions on third party contact with the conservatee, if necessary.

Alternatively, if not limited by the court establishing and, on a regular basis, reviewing the conservatorship, the conservator can always seek a protective order to protect the conservatee. In particular, Welfare & Institutions Code Section 15657.03 allows an elder or dependent adult, or a conservator, trustee or person acting under a power of attorney, to seek a protective order to protect the elder or dependent adult from abuse. If necessary to protect the elder or dependent adult immediately, a temporary restraining order can be sought under that same code section.

Correcting cross-reference for professional fiduciaries: Existing law prohibits a guardian or conservator from hiring or referring any business to an entity in which he or she has financial interest except upon authorization from the court. This provision was enacted by AB 1950 ((Pacheco), Chap. 565, Stats. 2000) and only applies to conservators and guardians required to register with the Statewide Registry (i.e., professional fiduciaries). In 2006, in response to reports that individuals acting as professional fiduciaries were abusing and taking advantage of elders and dependent adults, SB 1550 ((Figueroa), Chap. 491, Stats. 2006) repealed the Statewide Registry and, instead, established the Professional Fiduciaries Act (PFA). The PFA provides a licensing and disciplinary scheme for professional fiduciaries in order to protect conservatees and wards.

In accordance with the repeal of the Statewide Registry of guardians and conservators in favor of the licensing protections in the PFA, this bill updates the guardian or conservator conflict of interest prohibition by striking the outdated reference to individuals required to be registered with the Statewide Registry and instead providing that a guardian or conservator is prohibited from hiring or referring any business to an entity in which he or she has a financial interest only if the guardian or conservator is otherwise required to be licensed pursuant to the PFA.

REGISTERED SUPPORT / OPPOSITION:

Support

California Advocates for Nursing Home Reform

Professional Fiduciary Association of California

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334

 CONSENT  

Bill No: SB 1452

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 4/5/16

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SUBJECT:

SOURCE: Author

DIGEST: This bill specifies that a conservatee retains the personal right to receive electronic mail and provide the court authorization to issue an order specifically granting the conservator power to enforce the conservatee’s right to receive electronic mail or that directs the conservator to allow electronic mail to be delivered to the conservatee. This bill also makes technical revisions and corrects a cross-reference.

ANALYSIS:

Existing law:

1. Authorizes a court to appoint a conservator of the person to act on behalf of a person (conservatee) who is unable to provide for his or her own personal needs or to appoint a conservator of the estate to act on behalf of a conservatee who is incapable of managing his or her own property or other financial assets.
2. Authorizes a proposed conservatee, or spouse, domestic partner, relative, friend of the conservatee, public administrator, or other interested person to petition the court for the appointment of a conservator of the proposed conservatee.
3. Requires specified information to be included in the petition.
4. Authorizes a court, upon a showing of good cause, to appoint a temporary conservator or guardian to serve pending the appointment of a permanent conservator or guardian.
5. Provides, unless the court orders otherwise, the temporary conservator or guardian with only those powers and duties that are necessary to provide for temporary care of the conservatee or ward and to preserve and protect the property of the conservatee or ward from loss or injury.
6. Provides that a guardian or conservator, but not a limited conservator, has the care, custody, and control of, and has charge of the education of the ward or conservatee; this control does not extend to personal rights retained by the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order.
7. Authorizes the court to issue an order that specifically grants the conservator the power to enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail, or that directs the conservator to allow those visitors, telephone calls, and personal mail; that order may be included in the order appointing a conservator of the person or may be made, modified, or revoked upon a petition subsequently filed.
8. Provides that where the court determines that it is appropriate in the circumstances of the particular conservatee, the court, in its discretion, may limit the powers and duties that the conservator would otherwise have by an order stating either of the following: (a) the specific powers that the conservator does not have with respect to the conservatee’s person and reserving the powers so specified to the conservatee; and (b) the specific powers and duties the conservator has with respect to the conservatee’s person and reserving to the conservatee all other rights with respect to the conservatee’s person that the conservator otherwise would have.
9. Prohibits a guardian or conservator, who is required to register as a professional fiduciary with the Statewide Registry, in exercising his or her powers, from hiring or referring any business to an entity in which he or she has a financial interest except upon authorization of the court.
10. Requires, prior to the authorization from the court, the guardian or conservator to disclose to the court in writing his or her financial interest in the entity.
11. Defines “financial interest” to mean: (a) an ownership interest in a sole proprietorship, a partnership, or a closely held corporation; (b) an ownership interest of greater than one percent of the outstanding shares in a publicly traded corporation; or (c) being an officer or a director of a corporation.
12. Establishes, under the Professional Fiduciaries Act (PFA), a licensing and disciplinary scheme for a professional fiduciary and defines “professional fiduciary” to mean a person who acts as a conservator, guardian, trustee, personal representative, agent under a durable power of attorney for health care, or agent under a durable power of attorney for finances, for two or more persons not related to the professional fiduciary or to each other by blood, adoption, marriage, or registered domestic partnership.
13. Prohibits a superior court from appointing a person to carry out the duties of a professional fiduciary, or permitting a person to continue those duties, unless he or she: (a) holds a valid, unexpired, unsuspended license as a professional fiduciary under the PFA; (b) is exempt from the definition of “professional fiduciary” under the PFA; or (c) is exempt from the licensing requirements of the PFA.
14. Requires a professional fiduciary, who files a petition to be appointed as the temporary or permanent conservator of a person, to submit to the court a statement of the professional fiduciary’s registration or license information and a statement explaining who engaged the professional fiduciary or how the professional fiduciary was engaged to file the petition for appointment as the temporary or permanent conservator and what prior relationship the professional fiduciary had with the proposed conservatee or the proposed conservatee’s family or friends, unless that information is included in a petition for appointment for a temporary or general conservator filed at the same time by the professional fiduciary.

This bill:

1. Specifies that a conservatee also retains the personal right to receive electronic mail.
2. Replaces the requirement that a guardian or conservator required to register as a professional fiduciary with the Statewide Registry with a guardian or conservator required to be licensed under the PFA.

Background

In California, if an adult is unable to manage his or her financial matters, a conservator of the estate may be appointed by a court to manage the adult’s (conservatee) financial matters. If the adult is unable to manage his or her medical and personal decisions, a conservator of the person may be appointed. Similarly, a guardian of the estate or person may be appointed for a minor child (ward).

In some cases, the court may appoint a professional fiduciary to act as the guardian or conservator. A professional fiduciary is a person who provides conservatorship or guardianship services for more than one conservatee or ward to whom the professional fiduciary is not related. Professional fiduciaries are licensed and disciplined under the PFA.

When a conservator is appointed, the conservator is charged with the care, custody, and control of the conservatee. However, the court determines the powers and duties of the conservator and may limit the conservator’s powers and duties according to the needs of the conservatee. The court also determines the powers and duties retained by the conservatee for his or her own care. Existing law provides that, unless specifically limited by the court, a conservatee retains personal rights, including, but not limited to, the right to receive visitors, telephone calls, and personal mail.

This bill clarifies that the conservatee also has the personal right to receive electronic mail. This bill, with respect to a guardian or conservator who is required to register with the Statewide Registry, strikes that reference and instead refers to licensing under the PFA.

Comments

The author writes:

As our population ages, many more current and future conservatees will be accustomed to communicating with friends and loved ones via a computer as opposed to solely through paper mail. This bill updates the Probate Code to account for the use of electronic mail, as well as personal mail.

Prior Legislation

AB 1085 (Gatto, Chapter 92, Statutes of 2015), among other things, clarified the court’s ability to issue an order that specifically grants a conservator the power to enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail, or that directs the conservator to allow those activities.

AB 937 (Wieckowski, Chapter 127, Statutes of 2013) specified that a conservatee retains personal rights, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order.

SB 1550 (Figueroa, Chapter 491, Statutes of 2006) repealed the Statewide Registry and, instead, established the PFA.

AB 1950 (Pacheco, Chapter 565, Statutes of 2000) prohibited a guardian or conservator, who is required to register with the Statewide Registry from hiring or referring any business to an entity in which he or she has financial interest except upon authorization from the court.

AB 925 (Hertzberg, Chapter 409, Statutes of 1999) required all persons serving as a conservator or guardian to register with the Statewide Registry, as specified.

AB 759 (Friedman, Chapter 70, Statutes of 1990) revised and recast the Probate Code, which included the powers and duties of conservators.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 4/5/16)

California Advocates for Nursing Home Reform

Professional Fiduciary Association of California

OPPOSITION: (Verified 4/5/16)

None received

Prepared by: Tara Welch / JUD. / (916) 651-4113

4/6/16 16:54:41

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: SB 1452 (Author:Wieckowski)

Version: March 28, 2016

Hearing Date: April 5, 2016

Fiscal: No

Urgency: No

Consultant: TMW

SUBJECT

Conservators

DESCRIPTION

This bill would specify that a conservatee retains the personal right to receive electronic mail and provide the court authorization to issue an order specifically granting the conservator power to enforce the conservatee’s right to receive electronic mail or that directs the conservator to allow electronic mail to be delivered to the conservatee. The bill also makes technical revisions and corrects a cross-reference.

BACKGROUND

In California, if an adult is unable to manage his or her financial matters, a conservator of the estate may be appointed by a court to manage the adult’s (conservatee) financial matters. If the adult is unable to manage his or her medical and personal decisions, a conservator of the person may be appointed. Similarly, a guardian of the estate or person may be appointed for a minor child (ward).

In some cases, the court may appoint a professional fiduciary to act as the guardian or conservator. A professional fiduciary is a person who provides conservatorship or guardianship services for more than one conservatee or ward to whom the professional fiduciary is not related. Professional fiduciaries are licensed and disciplined under the Professional Fiduciaries Act.

When a conservator is appointed, the conservator is charged with the care, custody, and control of the conservatee. However, the court determines the powers and duties of the conservator and may limit the conservator’s powers and duties according to the needs of the conservatee. The court also determines the powers and duties retained by the conservatee for his or her own care. Existing law provides that, unless specifically limited by the court, a conservatee retains personal rights, including, but not limited to, the right to receive visitors, telephone calls, and personal mail.

This bill would clarify that the conservatee also has the personal right to receive electronic mail. This bill, with respect to a guardian or conservator who is required to register with the Statewide Registry, would strike that reference and instead refer to licensing under the Professional Fiduciaries Act.

CHANGES TO EXISTING LAW

Existing law authorizes a court to appoint a conservator of the person to act on behalf of a person (conservatee) who is unable to provide for his or her own personal needs or to appoint a conservator of the estate to act on behalf of a conservatee who is incapable of managing his or her own property or other financial assets. (Prob. Code Sec. 1800 et seq.)

Existing law authorizes a proposed conservatee, or spouse, domestic partner, relative, friend of the conservatee, public administrator, or other interested person to petition the court for the appointment of a conservator of the proposed conservatee. Existing law requires specified information to be included in the petition. (Prob. Code Secs. 1820, 1821.)

Existing law authorizes a court, upon a showing of good cause, to appoint a temporary conservator or guardian to serve pending the appointment of a permanent conservator or guardian. Unless the court orders otherwise, existing law provides the temporary conservator or guardian with only those powers and duties that are necessary to provide for temporary care of the conservatee or ward and to preserve and protect the property of the conservatee or ward from loss or injury. (Prob. Code Sec. 2250 et seq.)

Existing law provides that a guardian or conservator, but not a limited conservator, has the care, custody, and control of, and has charge of the education of the ward or conservatee. (Prob. Code Sec. 2351(a).) This control does not extend to personal rights retained by the conservatee, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. (Id.)

Existing law authorizes the court to issue an order that specifically grants the conservator the power to enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail, or that directs the conservator to allow those visitors, telephone calls, and personal mail. (Prob. Code Sec. 2351(a).) That order may be included in the order appointing a conservator of the person or may be made, modified, or revoked upon a petition subsequently filed. (Prob. Code Sec. 2351(c).

Existing law provides that where the court determines that it is appropriate in the circumstances of the particular conservatee, the court, in its discretion, may limit the powers and duties that the conservator would otherwise have by an order stating either of the following: (1) the specific powers that the conservator does not have with respect to the conservatee’s person and reserving the powers so specified to the conservatee; and (2) the specific powers and duties the conservator has with respect to the conservatee’s person and reserving to the conservatee all other rights with respect to the conservatee’s person that the conservator otherwise would have. (Prob. Code Sec. 2351(b).)

Existing law prohibits a guardian or conservator, who is required to register as a professional fiduciary with the Statewide Registry, in exercising his or her powers, from hiring or referring any business to an entity in which he or she has a financial interest except upon authorization of the court. (Prob. Code Sec. 2351(d).) Prior to the authorization from the court, the guardian or conservator is required to disclose to the court in writing his or her financial interest in the entity. (Id.) Existing law defines “financial interest” to mean (1) an ownership interest in a sole proprietorship, a partnership, or a closely held corporation, (2) an ownership interest of greater than one percent of the outstanding shares in a publicly traded corporation, or (3) being an officer or a director of a corporation. (Id.)

Existing law, the Professional Fiduciaries Act (PFA), establishes a licensing and disciplinary scheme for a professional fiduciary and defines “professional fiduciary” to mean a person who acts as a conservator, guardian, trustee, personal representative, agent under a durable power of attorney for health care, or agent under a durable power of attorney for finances, for two or more persons not related to the professional fiduciary or to each other by blood, adoption, marriage, or registered domestic partnership. (Bus. & Prof. Code Sec. 6500 et seq.)

Existing law prohibits a superior court from appointing a person to carry out the duties of a professional fiduciary, or permitting a person to continue those duties, unless he or she: (1) holds a valid, unexpired, unsuspended license as a professional fiduciary under the PFA; (2) is exempt from the definition of “professional fiduciary” under the PFA; or (3) is exempt from the licensing requirements of the PFA. (Prob. Code Sec. 2340.)

Existing law requires a professional fiduciary, who files a petition to be appointed as the temporary or permanent conservator of a person, to submit to the court a statement of the professional fiduciary’s registration or license information and a statement explaining who engaged the professional fiduciary or how the professional fiduciary was engaged to file the petition for appointment as the temporary or permanent conservator and what prior relationship the professional fiduciary had with the proposed conservatee or the proposed conservatee’s family or friends, unless that information is included in a petition for appointment for a temporary or general conservator filed at the same time by the professional fiduciary. (Prob. Code Secs. 1821(c), 2250(c).)

This bill would specify that a conservatee also retains the personal right to receive electronic mail.

This bill, with respect to a guardian or conservator required to register as a professional fiduciary with the Statewide Registry, would instead refer to a guardian or conservator required to be licensed under the Professional Fiduciaries Act.

COMMENT

1. Stated need for the bill

The author writes:

As our population ages, many more current and future conservatees will be accustomed to communicating with friends and loved ones via a computer as opposed to solely through paper mail. This bill updates the Probate Code to account for the use of electronic mail, as well as personal mail.

2. Adding personal right of conservatee to receive electronic mail

In 2013, AB 937 (Wieckowski, Chapter 127, Statutes of 2013) specified that a conservatee retains personal rights, including, but not limited to, the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order. To address situations when a conservator is supplanting his or her own wishes for that of the conservatee, AB 1085 (Gatto, Chapter 92, Statutes of 2015), among other things, clarified the court’s ability to issue an order that specifically grants a conservator the power to enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail, or that directs the conservator to allow those activities.

However, existing law does not explicitly provide for the conservatee’s personal rights to receive electronic mail. California Advocates for Nursing Home Reform (CANHR), in support, states that “[f]or years CANHR received calls and emails from residents and family members of residents of long term care facilities about problems regarding visitation and contact with conservatees. In 2013, then Assemblymember Wieckowski clarified a longstanding ambiguity in the law by authoring AB 937, which ensured a conservatee’s right to visitation or contact with people of their choosing unless the conservator obtained special authority to interfere. SB 1452 will improve AB 937 by adding email to the enumerated forms of protected communication for conservatees. Obviously, email is an important form of personal communication and merits the same protections as phone calls and other written correspondence.”

As noted by the author, more and more individuals are communicating through electronic means, whether through personal computer or other electronic devices. In recognition of the increasing use of electronic communication and to maintain a conservatee’s ability to stay in contact with loved ones, this bill would expand the existing list of personal rights retained by conservatees to include the conservatee’s right to receive electronic mail.

3. Correcting cross-reference for professional fiduciaries

Existing law prohibits a guardian or conservator from hiring or referring any business to an entity in which he or she has financial interest except upon authorization from the court. This provision was enacted by AB 1950 (Pacheco, Chapter 565, Statutes of 2000) and only applies to conservators and guardians required to register with the Statewide Registry (i.e., professional fiduciaries).

In 2006, in response to reports that individuals acting as professional fiduciaries were abusing and taking advantage of elders and dependent adults, SB 1550 (Figueroa, Chapter 491, Statutes of 2006) repealed the Statewide Registry and, instead, established the Professional Fiduciaries Act (PFA). The PFA provides a licensing and disciplinary scheme for professional fiduciaries in order to protect conservatees and wards.

In accordance with the repeal of the Statewide Registry of guardians and conservators in favor of the licensing protections in the PFA, this bill would update the guardian or conservator conflict of interest prohibition by striking the outdated reference to individuals required to be registered with the Statewide Registry and instead provide that a guardian or conservator is prohibited from hiring or referring any business to an entity in which he or she has a financial interest only if the guardian or conservator is otherwise required to be licensed pursuant to the PFA.

Support: California Advocates for Nursing Home Reform

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation:

AB 1085 (Gatto, Chapter 92, Statutes of 2015) See Comment 2.

AB 937 (Wieckowski, Chapter 127, Statutes of 2013) See Comment 2.

SB 1550 (Figueroa, Chapter 491, Statutes of 2006) See Comment 3.

AB 1950 (Pacheco, Chapter 565, Statutes of 2000) See Comment 3.

AB 925 (Hertzberg, Chapter 409, Statutes of 1999) required all persons serving as a conservator or guardian to register with the Statewide Registry, as specified.

AB 759 (Friedman, Chapter 70, Statutes of 1990) revised and recast the Probate Code, which included the powers and duties of conservators.

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