Amended in Assembly March 16, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 314

Introduced by Assembly Member Waldron

February 12, 2015

An act to amend begin delete Section 1813 end delete begin insert Sections 1826 and 1827.5 end insert of the Probate Code, relating to conservatorship.

LEGISLATIVE COUNSEL’S DIGEST

AB 314, as amended, Waldron. begin delete Conservatorship. end delete begin insert Limited conservatorship: developmentally disabled persons. end insert

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Existing law establishes a procedure for creating a limited conservatorship for a person with developmental disabilities. Under existing law, that procedure requires, among other things, that a court investigator conduct interviews of a proposed conservatee and others, review allegations in the petition to create the conservatorship, determine whether the proposed conservatee is incapable of completing an affidavit of voter registration, and report the results of the investigation to the court.

end insert begin insert

This bill would provide that these requirements do not apply to a procedure to establish a limited conservatorship for a person with developmental disabilities when the proposed conservator is a parent of the proposed conservatee.

end insert begin insert

Existing law requires that within 30 days after the filing of a petition for limited conservatorship of a person with developmental disabilities, the proposed limited conservatee, with his or her consent, be assessed at a regional center. Existing law requires the regional center to submit a written report of its findings and recommendations resulting from that assessment to the court.

end insert begin insert

This bill would instead authorize, rather than require, the proposed limited conservatee, with his or her consent, to be assessed at a regional center for those purposes. The bill would require the regional center, with the consent of the proposed limited conservatee, to submit a written report containing findings and recommendations to the court without an assessment of the proposed conservatee if the proposed conservatee has been a client of the regional center for a period of time sufficient for the center to provide those findings and recommendations without the need for an additional assessment, and if the proposed conservator is a parent of the proposed conservatee.

end insert begin delete

Existing law prohibits the spouse of a proposed conservatee from petitioning for the appointment of a conservator for a spouse or from being appointed as conservator of a person or estate of the proposed conservatee unless the petitioner alleges in the petition for appointment as conservator, and the court finds, that the spouse is not a party to an action or proceeding against the proposed conservatee for legal separation of the parties, dissolution of marriage, or adjudication of nullity of their marriage.

end delete begin delete

This bill would make technical, nonsubstantive changes to that provision.

end delete

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 1826 of the end insert begin insert Probate Code end insert begin insert is amended to
read: end insert

1826.  

begin delete Regardless end delete begin insert Except as provided in subdivision (t), and
regardless end insert of whether the proposed conservatee attends the hearing,
the court investigator shall do all of the following:

(a) Conduct the following interviews:

(1) The proposed conservatee personally.

(2) All petitioners and all proposed conservators who are not
petitioners.

(3) The proposed conservatee’s spouse or registered domestic
partner and relatives within the first degree. If the proposed
conservatee does not have a spouse, registered domestic partner,
or relatives within the first degree, to the greatest extent possible,
the proposed conservatee’s relatives within the second degree.

(4) To the greatest extent practical and taking into account the
proposed conservatee’s wishes, the proposed conservatee’s relatives
within the second degree not required to be interviewed under
paragraph (3), neighbors, and, if known, close friends.

(b) Inform the proposed conservatee of the contents of the
citation, of the nature, purpose, and effect of the proceeding, and
of the right of the proposed conservatee to oppose the proceeding,
to attend the hearing, to have the matter of the establishment of
the conservatorship tried by jury, to be represented by legal counsel
if the proposed conservatee so chooses, and to have legal counsel
appointed by the court if unable to retain legal counsel.

(c) Determine whether it appears that the proposed conservatee
is unable to attend the hearing and, if able to attend, whether the
proposed conservatee is willing to attend the hearing.

(d) Review the allegations of the petition as to why the
appointment of the conservator is required and, in making his or
her determination, do the following:

(1) Refer to the supplemental information form submitted by
the petitioner and consider the facts set forth in the form that
address each of the categories specified in paragraphs (1) to (5),
inclusive, of subdivision (a) of Section 1821.

(2) Consider, to the extent practicable, whether he or she
believes the proposed conservatee suffers from any of the mental
function deficits listed in subdivision (a) of Section 811 that
significantly impairs the proposed conservatee’s ability to
understand and appreciate the consequences of his or her actions
in connection with any of the functions described in subdivision
(a) or (b) of Section 1801 and identify the observations that support
that belief.

(e) Determine whether the proposed conservatee wishes to
contest the establishment of the conservatorship.

(f) Determine whether the proposed conservatee objects to the
proposed conservator or prefers another person to act as
conservator.

(g) Determine whether the proposed conservatee wishes to be
represented by legal counsel and, if so, whether the proposed
conservatee has retained legal counsel and, if not, the name of an
attorney the proposed conservatee wishes to retain.

(h) (1) Determine whether the proposed conservatee is not
capable of completing an affidavit of voter registration in
accordance with Section 2150 of the Elections Code and may be
disqualified from voting pursuant to Section 2208 of the Elections
Code.

(2) The proposed conservatee shall not be disqualified from
voting on the basis that he or she does, or would need to do, any
of the following to complete an affidavit of voter registration:

(A) Signs the affidavit of voter registration with a mark or a
cross pursuant to subdivision (b) of Section 2150 of the Elections
Code.

(B) Signs the affidavit of voter registration by means of a
signature stamp pursuant to Section 354.5 of the Elections Code.

(C) Completes the affidavit of voter registration with the
assistance of another person pursuant to subdivision (d) of Section
2150 of the Elections Code.

(i) If the proposed conservatee has not retained legal counsel,
determine whether the proposed conservatee desires the court to
appoint legal counsel.

(j) Determine whether the appointment of legal counsel would
be helpful to the resolution of the matter or is necessary to protect
the interests of the proposed conservatee in any case where the
proposed conservatee does not plan to retain legal counsel and has
not requested the appointment of legal counsel by the court.

(k) Report to the court in writing, at least five days before the
hearing, concerning all of the foregoing, including the proposed
conservatee’s express communications concerning both of the
following:

(1) Representation by legal counsel.

(2) Whether the proposed conservatee is not willing to attend
the hearing, does not wish to contest the establishment of the
conservatorship, and does not object to the proposed conservator
or prefer that another person act as conservator.

(l) Mail, at least five days before the hearing, a copy of the
report referred to in subdivision (k) to all of the following:

(1) The attorney, if any, for the petitioner.

(2) The attorney, if any, for the proposed conservatee.

(3) The proposed conservatee.

(4) The spouse, registered domestic partner, and relatives within
the first degree of the proposed conservatee who are required to
be named in the petition for appointment of the conservator, unless
the court determines that the mailing will result in harm to the
conservatee.

(5) Any other persons as the court orders.

(m) The court investigator has discretion to release the report
required by this section to the public conservator, interested public
agencies, and the long-term care ombudsman.

(n) The report required by this section is confidential and shall
be made available only to parties, persons described in subdivision
(l), persons given notice of the petition who have requested this
report or who have appeared in the proceedings, their attorneys,
and the court. The court has discretion at any other time to release
the report, if it would serve the interests of the conservatee. The
clerk of the court shall provide for the limitation of the report
exclusively to persons entitled to its receipt.

(o) This section does not apply to a proposed conservatee who
has personally executed the petition for conservatorship, or one
who has nominated his or her own conservator, if he or she attends
the hearing.

(p) If the court investigator has performed an investigation
within the preceding six months and furnished a report thereon to
the court, the court may order, upon good cause shown, that another
investigation is not necessary or that a more limited investigation
may be performed.

(q) Any investigation by the court investigator related to a
temporary conservatorship also may be a part of the investigation
for the general petition for conservatorship, but the court
investigator shall make a second visit to the proposed conservatee
and the report required by this section shall include the effect of
the temporary conservatorship on the proposed conservatee.

(r) The Judicial Council shall, on or before January 1, 2009,
adopt rules of court and Judicial Council forms as necessary to
implement an expedited procedure to authorize, by court order, a
proposed conservatee’s health care provider to disclose confidential
medical information about the proposed conservatee to a court
investigator pursuant to federal medical information privacy
regulations promulgated under the Health Insurance Portability
and Accountability Act of 1996.

(s) A superior court shall not be required to perform any duties
imposed pursuant to the amendments to this section enacted by
Chapter 493 of the Statutes 2006 until the Legislature makes an
appropriation identified for this purpose.

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(t) This section shall not apply to a proceeding to establish a
limited conservatorship for a person with developmental
disabilities when the proposed conservator is a parent of the
proposed conservatee.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1827.5 of the end insert begin insert Probate Code end insert begin insert is amended to
read: end insert

1827.5.  

(a) In begin delete the case of any end delete begin insert a end insert proceeding to establish a
limited conservatorship for a person with developmental
disabilities, within 30 days after the filing of a petition for limited
conservatorship, a proposed limited conservatee, with his or her
consent, begin delete shall end delete begin insert may end insert be assessed at a regional center as provided in
Chapter 5 (commencing with Section 4620) of Division 4.5 of the
Welfare and Institutions Code. The regional center shall submit a
written report of its findings and recommendations to the court. begin insert If
the proposed conservatee has been a client of the regional center
for a period of time sufficient for the center to provide those
findings and recommendations without the need for an additional
assessment, and if the proposed conservator is a parent of the
proposed conservatee, the regional center shall, with the consent
of the proposed limited conservatee, submit the written report
containing findings and recommendations to the court without an
assessment of the proposed conservatee. end insert

(b) In begin delete the case of any end delete begin insert a end insert proceeding to establish a general
conservatorship for a person with developmental disabilities, the
regional center, with the consent of the proposed conservatee, may
prepare an assessment as provided in Chapter 5 (commencing with
Section 4620) of Division 4.5 of the Welfare and Institutions Code.
If an assessment is prepared, the regional center shall submit its
findings and recommendations to the court.

(c)  begin insert (1) end insert begin insert   end insert A report prepared under subdivision (a) or (b) shall
include a description of the specific areas, nature, and degree of
disability of the proposed conservatee or proposed limited
conservatee. The findings and recommendations of the regional
center are not binding upon the court.

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In

end delete

begin insert (2) end insert begin insert   end insert begin insert In end insert a proceeding where the petitioner is a provider of board
and care, treatment, habilitation, or other services to persons with
developmental disabilities or a spouse or employee of a provider,
is not the natural parent of the proposed conservatee or proposed
limited conservatee, and is not a public entity, the regional center
shall include a recommendation in its report concerning the
suitability of the petitioners to meet the needs of the proposed
conservatee or proposed limited conservatee.

(d) At least five days before the hearing on the petition, the
regional center shall mail a copy of the report referred to in
subdivision (a) to all of the following:

(1) The proposed limited conservatee.

(2) The attorney, if any, for the proposed limited conservatee.

(3) If the petitioner is not the proposed limited conservatee, the
attorney for the petitioner or the petitioner if the petitioner does
not have an attorney.

(4)  begin delete Such other end delete begin insert Other end insert persons as the court orders.

(e) The report referred to in subdivisions (a) and (b) shall be
confidential and shall be made available only to parties listed in
subdivision (d) unless the court, in its discretion, determines that
the release of the report would serve the interests of the conservatee
who is developmentally disabled. The clerk of the court shall make
provision for limiting disclosure of the report exclusively to persons
entitled thereto under this section.

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SECTION 1.  

Section 1813 of the Probate Code is amended to
read:

1813.  

(a) (1) The spouse of a proposed conservatee shall not
petition for the appointment of a conservator for a spouse or be
appointed as conservator of the person or estate of the proposed
conservatee unless the petitioner alleges in the petition for
appointment as conservator, and the court finds, that the spouse is
not a party to an action or proceeding against the proposed
conservatee for legal separation of the parties, dissolution of
marriage, or adjudication of nullity of their marriage. However, if
the court finds by clear and convincing evidence that the
appointment of the spouse, who is a party to an action or
proceeding against the proposed conservatee for legal separation
of the parties, dissolution of marriage, or adjudication of nullity
of their marriage, or has obtained a judgment in any of these
proceedings, is in the best interests of the proposed conservatee,
the court may appoint the spouse.

(2) Prior to making this appointment, the court shall appoint
counsel to consult with and advise the conservatee, and to report
to the court his or her findings concerning the suitability of
appointing the spouse as conservator.

(b) The spouse of a conservatee shall disclose to the conservator,
or if the spouse is the conservator, shall disclose to the court, the
filing of an action or proceeding against the conservatee for legal
separation of the parties, dissolution of marriage, or adjudication
of nullity of the marriage, within 10 days of the filing of the action
or proceeding by filing a notice with the court and serving the
notice according to the notice procedures under this title. Upon
receipt of the notice, the court may set the matter for hearing on
an order to show cause why the appointment of the spouse as
conservator, if the spouse is the conservator, should not be
terminated and a new conservator appointed by the court.

end delete