Today's Law As Amended


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AB-2034 Elder and dependent adults.(2013-2014)



As Amends the Law Today


SECTION 1.

 Section 2361 is added to the Probate Code, immediately following Section 2360, to read:

2361.
 A conservator of an elder or dependent adult shall inform the relatives of the conservatee, as listed in subdivision (b) of Section 1821, whenever the conservatee dies or is admitted to a medical facility for acute care for a period of three days or more. In the case of death, the conservator shall inform the relatives of any funeral arrangements and the location of the conservatee’s final resting place.

SEC. 2.

 Chapter 7 (commencing with Section 3820) is added to Part 8 of Division 4 of the Probate Code, to read:

CHAPTER  7. Visitation of Elder or Dependent Adult without Conservator
3820.
 (a) A petition may be brought for a visitation order seeking to enjoin a respondent from keeping a proposed visitee in isolation from contact with the petitioner.
(b) For the purposes of this section:
(1) “Elder” has the same meaning as defined in Section 15610.27 of the Welfare and Institutions Code.
(2) “Dependent adult” has the same meaning as defined in Section 15610.23 of the Welfare and Institutions Code.
(3) “Isolation” has the same meaning as defined in Section 15610.43 of the Welfare and Institutions Code.
(4) “Petitioner” means a person who is an adult relative in the first degree of the proposed visitee.
(5) “Proposed visitee” means the elder or dependent adult who is under the care or control of the respondent.
(6) “Respondent” means the person who is alleged to be isolating the proposed visitee and, if the petition is granted, the restrained person.
(7) “Visitation” means any in-person meeting between a proposed visitee and the petitioner.
(8) “Visitation order” means an order enjoining a party from keeping the proposed visitee in isolation from contact with the petitioner that is issued by a court after notice and hearing.
(c) (1) If the proposed visitee resides in a long-term care facility, as defined in Section 9701 of the Welfare and Institutions Code, or a residential facility, as defined in Section 1502 of the Health and Safety Code, then an order shall not be issued under this section, and Section 483.10 of Title 42 of the Code of Federal Regulations shall apply.
(2) If the elder or dependent adult is a patient of a health facility as defined in subdivision (a), (b), or (f) of Section 1250 of the Health and Safety Code, then an order shall not be issued under this section, and Sections 482.13 and 485.635 of Title 42 of the Code of Federal Regulations, Section 1261 of the Health and Safety Code, and subdivision (b) of Section 70707 of Title 22 of the California Code of Regulations shall apply.
(d) A petition may not be filed pursuant to subdivision (a) if the proposed visitee is a conservatee or subject to a conservatorship.
(e) The petition may be filed in the superior court of either of the following counties:
(1) The county in which the proposed visitee resides.
(2) The county in which the proposed visitee is temporarily living.
(f) The court may require the proposed visitee to appear at the hearing.
(g) (1) If the proposed visitee has not retained an attorney or is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter, the court may, at or before the time of the hearing, appoint counsel to represent the proposed visitee at the hearing on the petition if the court determines that the appointment would be helpful to the resolution of the matter or is necessary to protect the interests of the proposed visitee.
(2) If the proposed visitee is provided legal counsel pursuant to subparagraph (1), all of the following shall apply:
(A) The nonprevailing party may be required to pay the fees and costs of the proposed visitee’s legal counsel.
(B) The court shall, upon conclusion of the matter, fix a reasonable sum for compensation and expenses of counsel and shall make a determination of the nonprevailing party’s ability to pay all or a portion of that sum. The sum may, in the discretion of the court, include compensation for services rendered, and expenses incurred, before the date of the order appointing counsel.
(C) If the court determines that the nonprevailing party has the ability to pay all or a portion of the sum, the court shall order the nonprevailing party to pay in any installments and in any manner the court determines to be reasonable and compatible with the nonprevailing party’s financial ability.
(D) If the court determines that the nonprevailing party lacks the ability to pay all or a portion of the sum determined under subparagraph (B), the county shall pay the sum to the private counsel to the extent the court determines the person is unable to pay.
(h) The court shall schedule an evidentiary hearing within 60 days from the date that the petition is filed. The court may grant a continuance of the hearing for good cause.
(i) The respondent and the proposed visitee shall each be personally served with a copy of the petition for visitation order and notice of the hearing at least 21 days before the hearing date.
(j) The notice of the hearing shall notify the proposed visitee and the respondent that following the hearing the court may make orders not to exceed five years from the hearing date. The notice of the hearing shall also notify the proposed visitee whether the court requires that the proposed visitee appear at the hearing, and how to request that counsel be appointed if the proposed visitee is unable to retain counsel.
(k) Respondent may file and serve a response that explains or denies the alleged isolation at least 10 days before the hearing date.
(l) The court shall issue an order only after notice and a hearing under this section, and the court shall not issue an ex parte order under this section.
(m) An order may be issued under this section to restrain the respondent for the purpose of preventing a recurrence of isolation if the petitioner has shown by a preponderance of the evidence, to the satisfaction of the court, the following: (1) the respondent’s past act or acts of isolation of the proposed visitee prevented contact with the petitioner, and (2) that the proposed visitee desires contact with the petitioner. The order may specify the frequency, time, place, location, and any other terms or conditions of visitation.
(n) In deciding whether to issue or modify a visitation order under this section, the court shall consider any prior protective orders issued against the petitioner to protect the proposed visitee.
(o) In deciding whether to issue or modify a visitation order under this section, the court may consider whether visitation by the petitioner should be limited to situations in which a third person, specified by the court, is present, or whether visitation shall be suspended or denied. The petitioner, proposed visitee, or respondent may submit to the court the name of a person who may be suitable to be present during visitation.
(p) In the discretion of the court, an order issued after notice and a hearing under this section may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further isolation since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. The request for renewal may be brought at any time within the three months before the expiration of the orders. The failure to state the expiration date on the face of the form creates an order with a duration of three years from the date of issuance.
(q) Nothing in this section shall preclude any party, including the proposed visitee, from representation by private counsel or from appearing on the party’s own behalf.
(r) The court may, in its discretion, award the prevailing party in any action brought under this section court costs and attorney’s fees, if any. In no event shall the proposed visitee be required to pay the court costs or attorney’s fees of either the prevailing or nonprevailing party.
(s) The court shall not issue an order unless the proposed visitee has expressed a desire for visitation. The court may appoint a court investigator to determine whether the proposed visitee has expressed a desire for visitation.
(t) A proposed visitee who appears in an action on a petition for visitation order shall not be subject to any fees listed in Title 8 (commencing with Section 68070) of the Government Code.
(u) The Judicial Council shall, on or before January 1, 2016, adopt implementing rules and forms, as necessary.
(v) This section shall become operative on January 1, 2016.
(w) This section shall remain in effect only until January 1, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2019, deletes or extends that date.
SEC. 3.
 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.