On August 19, 2013, California’s Governor Jerry Brown signed the first bill in the United States to clarify a conservatee’s personal rights. Assembly Bill 937 amends California Probate Code to read:
2351. (a) Subject to subdivision (b), the 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 shall 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.
AB 937 does not create new law. The bill simply clarifies rights that already exist under current law.
Personal rights were of paramount importance the framers of the Constitution. Thomas Jefferson so eloquently articulated the position of the Founding Fathers in their Declaration of Independence.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
California’s Declaration of Rights reiterates those inalienable rights.
SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Conservatorship was established to aid individuals who need additional care or oversight to manage their affairs. Although a well-intentioned legal instrument, conservatorship can be twisted by conservators seeking absolute power over a vulnerable individual. Some conservators abuse their position of authority for personal financial gain. Some conservators deny the conservatee all contact with loves ones.
In 2008, California’s Judicial Council developed GC-341, the Notice of Conservatee’s Rights to clarify the personal rights of conservatees.
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.
Unless the court has limited or taken the right away, the conservatee also keeps the right to:
- Receive personal mail,
- Receive visits from family and friends,
The Notice of Conservatee’s Rights is required to be signed by every conservator, served on the conservatee and first and second degree relatives, and filed with the court of jurisdiction.
However, some conservators continued to abuse their conservatee’s by isolating them from friends, family, and advocates. Santa Clara County Public Guardian Don Moody denied Gisela Riordan her right to visitation and phone calls for over two years. Modesto professional fiduciary Laurie Jamison denied June Guinn her right to phone calls with her daughters for five years.
California’s Director of Social Services Will Lightbourne expressed his opposition to conservatees' rights in his June 19, 2012 letter to this Examiner.
Unless otherwise limited by the court, which is not the case in this particular conservatorship, this includes the right to control just who is an appropriate visitor to the conservatee… In regards to Ms. Riordan. The Public Guardian has determined that you are not to have any contact with Ms. Riordan.
Assembly Bill 937, clarifying conservatees’ personal rights, was introduced in response to the deprivation of rights that Lightbourne allowed to continue unchecked. The Description section of the Senate Judiciary Committee legislative analysis stated:
This bill would clarify 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.
This Examiner was an invited speaker at the Senate Judiciary Committee hearing. (See video above.) AB 937 passed 68-3 in the Assembly and 32-1 in the Senate. Governor Brown signed the bill into law on August 17, 2013.
The passage of AB 937 marks a pivotal moment in advocacy for rights of elders and dependent adults. For the first time, a state probate code specifically states the conservatee’s right to visitation, phone calls, and personal mail. California advocates urge their colleagues across the country to seek similar legislation in other states and at the national level.