Conservatorship
proceedings are commenced for a variety of reasons, but the most common
circumstance is when an elderly person requires assistance, either with
their medical care, or their financial affairs, or both, and that
individual does not have an alternative in place which would eliminate
the need for a conservatorship.
The establishment of a conservatorship does not deprive a conservatee
of all of their personal and legal rights. Unless the court makes a
specific determination otherwise, a conservatee retains the legal right
to marry or to enter into a domestic partnership (Prob. Code, § 1900);
to make a will (Prob. Code, § 1871(c)); to vote (Prob. Code, § 1910);
and to make medical decisions (Prob. Code, § 2354(a)).
One of the legal rights often overlooked by a conservator is that the
conservatee retains a number of specific personal rights. Under
Probate Code section 2351, a conservator has the care, custody, and
control of the conservatee. What does that entail? The following
aspects of a conservatee’s personal affairs are specifically identified
as not being within the control of the conservator: the right to
receive visitors, telephone calls, and personal mail. If a conservator
wants to control those aspects of a conservatee’s personal life, a court
order specifically granting such control to the conservator is
required.
Yes, that’s right. Absent a court order, a conservator has no
authority to determine what visitors the conservatee may receive, who
may have telephone calls with the conservatee, and what mail personal
mail may be received by the conservatee. Oftentimes, especially in the
case of conservatorships involving significant family conflict, a
conservator, even those who are licensed by the State of California as a
licensed professional fiduciary, will arbitrarily make these decisions
“on behalf of” the conservatee. A conservator who is a sibling might
say, “You can’t see Mom!” or “You can only call Dad between 1:00 p.m.
and 2:00 p.m. on Sundays!” Greeting cards from the disfavored family
member that are intended for the conservatee mysteriously disappear.
Unless a conservator has a specific order allowing the conservator to
make such personal decisions on behalf of the conservatee, it is the
conservatee who continues to have the right to determine what visitors,
phone calls, and mail he or she shall receive.
These personal rights were recently considered by the Fourth District Court of Appeal in Conservatorship of Navarrete, 2020 Cal.App.LEXIS 1211. In Navarrete,
the mother and older brother of a 33-year old woman with cerebral palsy
filed competing petitions seeking appointment as conservator of the
person. As the court commented, “Lurking behind this dispute…” was an
accusation that the proposed conservatee’s father had sexually assaulted
and raped her, and that she feared her father. The court ultimately
appointed mother as conservator of the person and, after further
hearings, granted the father visitation and ordered joint counseling
between father and the conservatee. The conservatee, her attorney, and
mother all objected to the court-ordered visitation and counseling.
The trial court stated that, in ordering visitation, its job was to
make an assessment from the standpoint of what would be in the
conservatee’s best interest. The trial judge commented that, if his
adult son told him he never wanted to see him again, it would be “too
horrible to imagine, but he would have the right to say so.” The trial
judge admitted that he could not conclude whether the sexual abuse had
actually taken place, but also expressed concern about efforts of mother
to alienate father from the conservatee.
Conservatee appealed the visitation order arguing that the court
exceeded its authority in ordering her to attend joint therapy sessions
with her father, that such order violated her state and federal
constitutional rights, and that, even if the visitation order was
permissible, the trial court abused its discretion to determine forced
visitation was in her best interest.
The appellate court reviewed Probate Code section 2351 addressing a
conservatee’s personal rights and stated that such rights were so
important that the Legislature gave the court the power to intervene to
ensure that a conservatee may exercise them. The court stated that, if
the conservator was interfering with the conservatee’s decision to
receive visitors, the court may order the conservator to “stand aside”
and let the conservatee make the decision for themselves. Such
determination is to be made based on what is in the conservatee’s best
interest.
The appellate court acknowledged that the Navarrete case did not fit squarely into the provisions of Probate Code section 2351 in that the case involved a court order requiring
the conservatee to receive a visitor against the conservatee’s express
will. The court commented upon the court’s involvement in visitation
between a minor child and a parent, and that there was no case under the
Probate Code involving forced visitation between an adult child and a
parent. The court stated that an adult’s disability does not put them
in the legal position of a minor. The appellate court also noted that,
in the context of family law orders, the family court did not retain the
right to order visitation between adult disabled children and their
parent, stating that visitation is a form of “custody” and, under the
Family Code, the court’s authority did not extend to a child who had
reached the age of majority. The appellate court determined that,
because the conservatee was an adult, notwithstanding her disability,
the trial court overstepped its role by intervening in the dispute
between the conservatee and her father based on the court’s own judgment
as to the conservatee’s best interest. Because the appellate court
determined that the court exceeded its authority in ordering forced
visitation, it did not reach the other questions on appeal.
It is all too easy for a conservator to substitute his or her
determination for that of a conservatee as to what visitors a
conservatee may receive, who may telephone, and what mail may be
distributed. The conservator may believe that these personal rights are
not as important as the right to marry, make a will, or make medical
decisions. As to those latter rights, a conservator will bring to the
court’s attention by the appropriate petition any concerns about the
conservatee’s ability to make such decisions. But, personal rights are
very important as they most impact a conservatee’s daily life. A
conservatee may express that he or she wishes to receive a certain
visitor and the conservator may disagree that such a visit is
appropriate. If that is the case, the conservator’s authority does not
extend to prohibiting visits from that individual. The conservator who
does so exceeds his or her statutory authority. Instead, the course of
action open to the conservator is to petition the court for specific
orders relating to the conservatee’s personal rights and whether the
court should intervene in the exercise of those rights.
means, including collecting fees for work he never performed.
