Lest We Forget, Conservatees Have Personal Rights
February 2 2021
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 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) 58 Cal.App.5th 1018. 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.