BILL NUMBER: AB 2034 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 23, 2014
AMENDED IN ASSEMBLY MARCH 28, 2014
AMENDED IN ASSEMBLY MARCH 19, 2014
AMENDED IN ASSEMBLY MARCH 11, 2014
INTRODUCED BY Assembly Member Gatto
FEBRUARY 20, 2014
An act to amend Section 4701 of, to add Section
2361 to, and to add Part 7.5 (commencing with Section 3250) to
Division 4 of, of the Probate Code,
relating to family relations.
LEGISLATIVE COUNSEL'S DIGEST
AB 2034, as amended, Gatto. Family relations: family visitation
and conservatorships.
(1) Existing law establishes procedures by which a court may grant
reasonable visitation rights to a parent of a minor child, unless it
is shown that the visitation would be detrimental to the best
interests of the child. Existing law requires the court, when
determining the best interest of the child, to consider, among other
factors, the health, safety, and welfare of the child.
Existing law authorizes an adult having capacity to give a written
advance health care directive and establishes a statutory advance
health care directive form.
This bill would establish procedures by which a court may grant
reasonable visitation rights to an adult child if a proposed visitee,
as defined, expresses a desire for that visitation, unless
the court determines that the visitation is not in the best interests
of the proposed visitee. visitation. The bill
would require a court investigator to prepare a report that contains,
among other things, interviews of specified individuals, a
determination of whether the proposed visitee has the capacity to
consent to the requested visitation, and a determination of whether
the proposed visitee desires the proposed visitation. The bill would
make the court investigator's report confidential and would make
legislative findings and declarations regarding the privacy interests
affected by the investigations that are protected by the bill. The
bill would direct the court to consider, among other things, the
history of the relationship between the proposed visitee and the
adult child, any power of attorney or estate planning document that
expresses an opinion on visitation, and the report prepared by the
court investigator. This bill would revise the statutory
advance health care directive form to authorize a person to establish
a list of people who he or she would like, and would not like, to
have visitations with.
(2) Existing law requires a conservator of a person to be
responsible for the care, custody, control, and education of a
conservatee, except where the court, in its discretion, limits the
powers and duties of the conservator, as specified. Existing law
provides that the conservator's control of the conservatee 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 a court order.
This bill would require a conservator to inform , as soon as
reasonably possible, the relatives of a conservatee whenever a
conservatee dies or is admitted to has been
hospitalized in a general acute care hospital for a period of 3
days or more and would require the conservator, in the event of
death of the conservatee, to inform , as soon as reasonably
possible, the relatives of any funeral arrangements and the
location of the conservatee's final resting place.
This bill would make a legislative finding that declares 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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares 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.
SECTION 1. SEC. 2. Section 2361 is
added to the Probate Code, to read:
2361. A conservator shall , as soon as reasonably possible,
inform relatives of a conservatee, as defined in subdivision
(b) of Section 1821, whenever a conservatee dies or is
admitted to has been hospitalized in a general
acute care hospital, as defined in Section 1250 of the Health and
Safety Code, for a period of three days or more. In the case of
death, a conservator shall inform , as soon as reasonably
possible, the relatives of any funeral arrangements and the
location of the conservatee's final resting place.
SEC. 2. SEC. 3. Part 7.5 (commencing
with Section 3250) is added to Division 4 of the Probate Code, to
read:
PART 7.5. Rights of Adult Children and Visitation
3250. As used in this part:
(a) "Proposed visitee" means an adult who is a parent and who does
not have a conservator of the person and for whom a visitation
decision is sought.
(b) "Visitation" means any in-person meeting , or any
telephonic, mail, or electronic communication, between a
proposed visitee and his or her adult child.
(c) "Visitation decision" means a decision regarding the proposed
visitee's visitations, including the following:
(1) Approval or disapproval of any visitation.
(2) The specifics of that visitation, including, but not limited
to, the time, place, and manner of the visitation.
(d) "Adult child" means an individual who is 18 years of age or
older and is related to the proposed visitee biologically, through
adoption, through the marriage or former marriage of the proposed
visitee to the adult child's biological parent, or by a judgment of
parentage entered by a court of competent jurisdiction.
3251. (a) A petition may be filed by an adult child to compel
visitation with a proposed visitee.
(b) In ruling on the petition, the court shall determine if the
proposed visitee has sufficient capacity to make a knowing and
intelligent visitation decision.
(c) If the court determines that the proposed visitee has
sufficient capacity to make a knowing and intelligent visitation
decision, the court shall grant reasonable visitation if the proposed
visitee expresses a desire for visitation, unless the court
finds that such visitation is not in the best interests of the
proposed visitee. visitation.
(d) If the proposed visitee lacks the capacity to make a knowing
and intelligent visitation decision, then the court shall determine
if the proposed visitee would want visitation. In determining whether
or not the proposed visitee would or would not want a visitation
from the petitioner, the court shall consider the following:
(1) The history of the relationship between the proposed visitee
and the petitioner.
(2) Any statements made by the proposed visitee expressing his or
her desire to have a visitation with the petitioner.
(3) Any power of attorney or estate planning document that
expresses an opinion on visitation with the petitioner.
(4) The report of the court investigator prepared pursuant to
Section 3256.
(e) If the court determines that the proposed visitee would want
visitation, the court shall grant reasonable visitation, provided the
court determines that the visitation is in the best interests of the
proposed visitee.
(f) If the court determines that the proposed visitee has
sufficient capacity to make a knowing and intelligent visitation
decision and the proposed visitee expresses that he or she does not
desire visitation then the court shall not grant visitation.
(g) A determination by the court regarding capacity under this
part shall not be cited as evidence in any other legal proceeding.
3252. The petition may be filed in the superior court of any of
the following counties:
(a) The county in which proposed visitee resides.
(b) The county in which the proposed visitee is temporarily
living.
3253. The petition shall state, or set forth by a declaration
attached to the petition, all of the following known to the
petitioner at the time the petition is filed:
(a) The condition of the proposed visitee's health, to the extent
known by the petitioner.
(b) The proposed visitation that is to be considered.
(c) The efforts made to obtain visitation with the proposed
visitee.
(d) The deficit or deficits, if any, in the proposed visitee's
mental functions listed in subdivision (a) of Section 811 that are
impaired, and an identification of a link between the deficit or
deficits and the proposed visitee's inability to respond knowingly
and intelligently to queries about the requested visitation.
(e) The names and addresses, so far as they are known to the
petitioner, of the persons specified in subdivision (b) of Section
1821.
3254. Upon the filing of the petition, the court shall determine
if the proposed visitee has retained an attorney to represent him or
her in the proceeding under this part or if the proposed visitee
plans to retain an attorney for that purpose.
3255. (a) Not less than 15 days before the hearing, notice of the
time and place of the hearing and a copy of the petition shall be
personally served on the proposed visitee, and the proposed visitee's
attorney, if any.
(b) Not less than 15 days before the hearing, notice of the time
and place of the hearing and a copy of the petition shall be mailed
to the following persons:
(1) The proposed visitee's spouse, if any, at the address stated
in the petition.
(2) The proposed visitee's relatives named in the petition at each
relative's address stated in the petition.
3256. Prior to the hearing, the court investigator shall do all
of the following:
(a) Conduct the following interviews:
(1) The proposed visitee.
(2) All petitioners.
(3) The proposed visitee's spouse or registered domestic partner
and relatives within the first degree.
(4) To the extent practical, neighbors, and, if known, close
friends of the proposed visitee.
(b) Inform the proposed visitee of the contents of the petition.
(c) Determine whether the proposed visitee has the capacity to
consent to the requested visitation.
(d) Determine whether the proposed visitee desires the proposed
visitation.
(e) Report to the court in writing, at least five days before the
hearing, concerning all of the foregoing.
(f) Mail, at least five days before the hearing, a copy of the
report referred to in subdivision (e) to all of the following:
(1) The attorney, if any, for the petitioner.
(2) The attorney, if any, for the proposed visitee.
(3) The spouse, registered domestic partner, and relatives within
the first degree of the proposed visitee, unless the court determines
that the mailing will result in harm to the proposed visitee.
(4) Any other persons as the court orders.
(g) The report required by this section is confidential and shall
be made available only to parties, persons described in subdivision
(f), persons given notice of the petition who have requested this
report or who have appeared in the proceedings, their attorneys, and
the court.
(h) If the court investigator has performed an investigation
within the preceding 12 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.
3257. The court in which the petition is filed has continuing
jurisdiction to revoke or modify an order made under this part upon a
petition filed, noticed, and heard in the same manner as an original
petition filed under this part.
3258. Each court shall assess each adult child who files a
petition for visitation in the county for any investigation or review
conducted by a court investigator with respect to the proposed
visitee as described in Section 3256. The court may order
reimbursement to the court for the amount of the assessment, unless
the court finds that all or any part of the assessment would impose a
hardship on the adult child filing a petition for visitation.
SEC. 3. Section 4701 of the Probate Code is
amended to read:
4701. The statutory advance health care directive form is as
follows:
ADVANCE HEALTH CARE DIRECTIVE
(California Probate Code Section 4701)
Explanation
You have the right to give instructions about your own health
care. You also have the right to name someone else to make health
care decisions for you. This form lets you do either or both of these
things. It also lets you express your wishes regarding donation of
organs and the designation of your primary physician. If you use this
form, you may complete or modify all or any part of it. You are free
to use a different form.
Part 1 of this form is a power of attorney for health care. Part 1
lets you name another individual as agent to make health care
decisions for you if you become incapable of making your own
decisions or if you want someone else to make those decisions for you
now even though you are still capable. You may also name an
alternate agent to act for you if your first choice is not willing,
able, or reasonably available to make decisions for you. (Your agent
may not be an operator or employee of a community care facility or a
residential care facility where you are receiving care, or your
supervising health care provider or employee of the health care
institution where you are receiving care, unless your agent is
related to you or is a coworker.)
Unless the form you sign limits the authority of your agent, your
agent may make all health care decisions for you. This form has a
place for you to limit the authority of your agent. You need not
limit the authority of your agent if you wish to rely on your agent
for all health care decisions that may have to be made. If you choose
not to limit the authority of your agent, your agent will have the
right to:
(a) Consent or refuse consent to any care, treatment, service, or
procedure to maintain, diagnose, or otherwise affect a physical or
mental condition.
(b) Select or discharge health care providers and institutions.
(c) Approve or disapprove diagnostic tests, surgical procedures,
and programs of medication.
(d) Direct the provision, withholding, or withdrawal of artificial
nutrition and hydration and all other forms of health care,
including cardiopulmonary resuscitation.
(e) Make anatomical gifts, authorize an autopsy, and direct
disposition of remains.
Part 2 of this form lets you give specific instructions about any
aspect of your health care, whether or not you appoint an agent.
Choices are provided for you to express your wishes regarding the
provision, withholding, or withdrawal of treatment to keep you alive,
as well as the provision of pain relief. Space is also provided for
you to add to the choices you have made or for you to write out any
additional wishes. If you are satisfied to allow your agent to
determine what is best for you in making end-of-life decisions, you
need not fill out Part 2 of this form.
Part 3 of this form lets you express an intention to donate your
bodily organs and tissues following your death.
Part 4 of this form lets you designate a physician to have primary
responsibility for your health care.
Part 5 of this form lets you establish a list of people who you
would like to have visitations with. This list is only evidence of
some of the people with whom you, at the time you sign this document,
would want to visit. It does not give your agent or any facility any
additional power to allow or disallow visitors.
Part 6 of this form lets you establish a list of people who you
would not want to have visitations with. This list is only evidence
of some of the people with whom you, at the time you sign this
document, would not want to visit. It does not give your agent or any
facility any additional power to allow or disallow visitors.
After completing this form, sign and date the form at the end. The
form must be signed by two qualified witnesses or acknowledged
before a notary public. Give a copy of the signed and completed form
to your physician, to any other health care providers you may have,
to any health care institution at which you are receiving care, and
to any health care agents you have named. You should talk to the
person you have named as agent to make sure that he or she
understands your wishes and is willing to take the responsibility.
You have the right to revoke this advance health care directive or
replace this form at any time.
* * * * * * * * * * * * * * * *
PART
1
POWER OF ATTORNEY FOR HEALTH CARE
(1.1) DESIGNATION OF AGENT: I designate the
following individual as my agent to make health
care decisions for me:
__________________________________________________
(name of individual you choose as agent)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(home phone) (work phone)
OPTIONAL: If I revoke my agent's authority or if
my agent is not willing, able, or reasonably
available to make a health care decision for me,
I designate as my first alternate agent:
__________________________________________________
(name of individual you choose as first alternate
agent)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(home phone) (work phone)
OPTIONAL: If I revoke the authority of my agent
and first alternate agent or if neither is
willing, able, or reasonably available to make a
health care decision for me, I designate as my
second alternate agent:
__________________________________________________
(name of individual you choose as second
alternate agent)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(home phone) (work phone)
(1.2) AGENT'S AUTHORITY: My agent is authorized
to make all health care decisions for me,
including decisions to provide, withhold,
or withdraw artificial nutrition and hydration
and all other forms of health care to keep me
alive, except as I state here:
__________________________________________________
__________________________________________________
__________________________________________________
(Add additional sheets if needed.)
(1.3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE:
My agent's authority becomes effective when my
primary physician determines that I am unable to
make my own health care decisions unless I
mark the following box. If I mark this box ( ),
my agent's authority to make health care
decisions for me takes effect immediately.
(1.4) AGENT'S OBLIGATION: My agent shall make
health care decisions for me in accordance with
this power of attorney for health care, any
instructions I give in Part 2 of this form, and
my other wishes to the extent known to my agent.
To the extent my wishes are unknown, my agent
shall make health care decisions for me in
accordance with what my agent determines to be in
my best interest. In determining my best
interest, my agent shall consider my personal
values to the extent known to my agent.
(1.5) AGENT'S POSTDEATH AUTHORITY: My agent is
authorized to make anatomical gifts, authorize an
autopsy, and direct disposition of my remains,
except as I state here or in Part 3 of this form:
__________________________________________________
__________________________________________________
__________________________________________________
(Add additional sheets if needed.)
(1.6) NOMINATION OF CONSERVATOR: If a
conservator of my person needs to be appointed
for me by a court, I nominate the agent
designated in this form. If that agent is not
willing, able, or reasonably available to act as
conservator, I nominate the alternate agents whom
I have named, in the order designated.
PART
2
INSTRUCTIONS FOR HEALTH CARE
If you fill out this part of the form, you may
strike any wording you do not want.
(2.1) END-OF-LIFE DECISIONS: I direct that my
health care providers and others involved in my
care provide, withhold, or withdraw
treatment in accordance with the choice I have
marked below:
( ) (a) Choice Not To Prolong Life
I do not want my life to be prolonged if (1) I
have an incurable and irreversible condition that
will result in my death within a relatively short
time, (2) I become unconscious and, to a
reasonable degree of medical certainty, I will
not regain consciousness, or (3) the likely risks
and burdens of treatment would outweigh the
expected benefits, OR
( ) (b) Choice To Prolong Life
I want my life to be prolonged as long as
possible within the limits of generally accepted
health care standards.
(2.2) RELIEF FROM PAIN: Except as I state in the
following space, I direct that treatment for
alleviation of pain or discomfort be provided at
all times, even if it hastens my death:
__________________________________________________
__________________________________________________
(Add additional sheets if needed.)
(2.3) OTHER WISHES: (If you do not agree with
any of the optional choices above and wish to
write your own, or if you wish to add to the
instructions you have given above, you may do so
here.) I direct that:
__________________________________________________
__________________________________________________
(Add additional sheets if needed.)
PART
3
DONATION OF ORGANS AT
DEATH
(OPTIONAL)
(3.1) Upon my death (mark applicable box):
( ) (a) I give any needed organs, tissues, or
parts, OR
( ) (b) I give the following organs, tissues, or
parts only.
_______________________________________________
(c) My gift is for the following purposes
(strike any
of
the following you do not want):
(1) Transplant
(2) Therapy
(3) Research
(4) Education
PART
4
PRIMARY
PHYSICIAN
(OPTIONAL)
(4.1) I designate the following physician as my
primary physician:
__________________________________________________
(name of physician)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
OPTIONAL: If the physician I have designated
above is not willing, able, or reasonably
available to act as my primary physician, I
designate the following physician as my primary
physician:
__________________________________________________
(name of physician)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
* * * * * * * * * * * * * * * *
PART
5
VISITATION BY FAMILY AND
FRIENDS
(OPTIONAL)
(5.1) The following person(s) shall have the
ability to visit me at my domicile or care
facility:
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
PART
6
NON-VISITATION
LIST
(OPTIONAL)
(6.1) The following person(s) shall NOT have the
ability to visit me at my domicile or care
facility:
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
__________________________________________________
(address) (city) (state) (ZIP Code)
__________________________________________________
(phone)
* * * * * * * * * * * * * * * *
PART 7
(7.1) EFFECT OF COPY: A copy of this form has
the same effect as the original.
(7.2) SIGNATURE: Sign and date the form here:
_______________________ _______________________
(date) (sign your name)
_______________________ _______________________
(address) (print your name)
_______________________
(city) (state)
(7.3) STATEMENT OF WITNESSES: I declare under
penalty of perjury under the laws of California
(1) that the individual who signed or
acknowledged this advance health care directive
is personally known to me, or that the
individual's identity was proven to me by
convincing evidence, (2) that the individual
signed or acknowledged this advance directive in
my presence, (3) that the individual appears to
be of sound mind and under no duress, fraud, or
undue influence, (4) that I am not a person
appointed as agent by this advance directive, and
(5) that I am not the individual's health care
provider, an employee of the individual's health
care provider, the operator of a community care
facility, an employee of an operator of a
community care facility, the operator of a
residential care facility for the elderly, nor an
employee of an operator of a residential care
facility for the elderly.
First witness Second witness
_______________________ _______________________
(print name) (print name)
_______________________ _______________________
(address) (address)
_______________________ _______________________
(city) (state) (city) (state)
_______________________ _______________________
(signature of witness) (signature of witness)
_______________________ _______________________
(date) (date)
(7.4) ADDITIONAL STATEMENT OF WITNESSES: At
least one of the above witnesses must also sign
the following
declaration:
I further declare under penalty of perjury under
the laws of California that I am not related to
the individual executing this advance health care
directive by blood, marriage, or adoption, and to
the best of my knowledge, I am not entitled to
any part of the individual's estate upon his or
her death under a will now existing or by
operation of law.
_______________________ _______________________
(signature of witness) (signature of witness)
PART
8
SPECIAL WITNESS REQUIREMENT
(8.1) The following statement is required only
if you are a patient in a skilled nursing
facility--a health care facility that provides
the following basic services: skilled nursing
care and supportive care to patients whose
primary need is for availability of skilled
nursing care on an extended basis. The patient
advocate or ombudsman must sign the following
statement:
STATEMENT OF PATIENT ADVOCATE OR OMBUDSMAN
I declare under penalty of perjury under the
laws of California that I am a patient advocate
or ombudsman as designated by the State
Department of Aging and that I am serving
as a witness as required by Section 4675 of the
Probate Code.
_______________________ _______________________
(date) (sign your name)
_______________________ _______________________
(address) (print your name)
_______________________
(city) (state)
SEC. 4. The Legislature finds and declares that Section 2
3 of this act, which adds Part 7.5 (commencing
with Section 3250) to Division 4 of the Probate Code, imposes a
limitation on the public's right of access to the writings of public
officials and a public agency within the meaning of Section 3 of
Article I of the California Constitution. Pursuant to paragraph (2)
of subdivision (b) of Section 3 of Article I of the California
Constitution, the Legislature makes the following findings to
demonstrate the interest protected by this limitation and the need
for protecting that interest:
In order to protect the identities and other privacy interests of
those affected by the court investigations, it is necessary that this
information be kept confidential.