In California, like all states, a probate court may appoint a conservator to act on behalf of a people who are unable to care for themselves or their property. Once appointed, a conservator has broad power to provide for the “care, custody, control, and education” of the person under the conservatorship (the conservatee). But the California legislature recently clarified the conservator’s powers, and the conservatee’s rights, in one important area.
Legislature Clarifies Right to Visitation
The legislature was concerned that conservators may try to cut off a conservatee’s access to family or other loved ones. In a report, a California Assembly committee noted that as “divorce and remarriage become more prevalent in today’s society, there is a greater possibility of conflicts between a second spouse and children from a first marriage.” In such cases, a second spouse who is named conservator of the other spouse may ban the children from visiting or communicating with their parent.
To remedy this, the legislature adopted Assembly Bill 1085 last year. Governor Jerry Brown signed the measure into law in July 2015, and its provisions have already taken effect. The new law amends the California Probate Code to make it explicit that “every adult in this state has the right to visit with, and receive mail and telephone or electronic communication from, whomever he or she so chooses, unless a court has specifically ordered otherwise.”
This means that a conservator may no longer unilaterally cut off visitation, telephone, or email access to a conservatee’s family. These are considered “personal rights retained by the conservatee,” and cannot be restricted unless a probate court judge expressly determines otherwise. A judge may further order a conservator to “enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail,” thereby preventing a situation like the one described by the Assembly committee where a spouse named as conservator might try to keep his or her stepchildren away from their parent without just cause.
AB 1085 also requires a conservator to provide notice of a conservatee’s death to certain individuals, notably the deceased person’s spouse or domestic partner, and any family member who has previously requested “special notice of the matter” from the probate court overseeing the conservatorship. The Assembly report noted this provision was added in response to concerns that “illness or incapacity of an elderly parent or relative results in family turmoil, leaving some family members completely out of touch with the conservatee’s condition or status.”
Avoiding Conservatorship Through Estate Planning
It should be noted that a conservatorship can often be avoided through proper estate planning. An Advance Health Care Directive allows you to name an agent to make medical and personal care decisions for you in the event of incapacity. Similarly, a General Durable Financial Power of Attorney names an agent to manage your assets and financial affairs. These documents generally eliminate the need to appoint a conservatorship. An experienced San Diego estate planning attorney can advise you on this any other related subjects. Contact the Law Office of Scott C. Soady today if you would like to speak with an attorney right away.