SB167 By Senators Figures and Waggoner RFD Education and Youth Affairs Rd 1 09-FEB-16

SYNOPSIS: Existing law does not specifically authorize an adult child to petition for visitation with a parent or dependent adult.

Existing law provides that the conservator or guardian, or both, of a dependent adult who is the subject of a conservatorship, also known as a conservatee, is responsible for the care, custody, control, and education of the conservatee, unless the court expressly limits those powers.

This bill would specify that a spouse's, conservator's, or guardian's control of a conservatee does not extend to the right to refuse visitors, telephone calls, and other correspondence from an adult child or relative of a first degree who is not the conservator or a guardian, unless these rights are expressly limited by court order.

This bill would establish a procedure by which an adult child or relative of the first degree may petition for visitation with a conservatee from whom he or she has been isolated, and would authorize a court to grant reasonable visitation with that conservatee.

This bill would also require the spouse, conservator, or guardian to inform the adult children, relatives of a first degree, or both, whenever a conservatee dies or is admitted to a medical facility for acute or chronic care, or both, for a period of three days or more.

A BILL TO BE ENTITLED AN ACT

To specify a procedure by which an adult child or relative of a first degree who has been isolated from a conservatee may petition for court ordered reasonable visitation rights with the conservatee.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. For the purposes of this act, the following terms have the following meanings:

(1) ADULT CHILD. A person who is 18 years or age or older who is the child of the parent, biologically or through adoption, who resides in this state, and who is not the conservator of the parent.

(2) CONSERVATEE. A person who is an elderly mother or father and is a dependent adult.

(3) RELATIVE OF A FIRST DEGREE. A person sharing 50 percent or more of the same genes, such as a sibling, child, or parent, or a person who shares this same relationship through adoption.

(4) VISITATION. Any in-person meeting or any telephonic mail or electronic communication between a conservatee and his or her adult child.

(5) VISITATION ORDER. An order issued by the circuit court after notice and hearing regarding the visitation with a parent by his or her adult child specifying the approval or disapproval of any visitation and the specifics of that visitation including, but not limited to, the time, place, and manner of the visitation.

Section 2. (a) An adult child or a relative of a first degree may file a petition to compel visitation with a conservatee from whom he or she has been isolated.

(b) Except as provided by subsection (c), the court shall schedule a hearing on a petition not later than 60 days after the petition is filed under subsection (a).

(c) If the petition filed under subsection (a) states that the conservatee's health is in significant decline or that the conservatee's death may be imminent, the court shall conduct an emergency hearing as soon as practicable, but not later than 10 days after the date the petition is filed under subsection (a).

(d) In ruling on the petition, the court shall determine if the conservatee has sufficient capacity to make a knowing and intelligent visitation decision.

(e) If the court determines the conservatee has sufficient capacity to make a knowing and intelligent visitation decision, the court shall grant visitation if the conservatee expresses a desire for visitation.

(f) If the conservatee lacks sufficient capacity to make a knowing and intelligent visitation decision, the court shall determine if the conservatee would want visitation. In determining whether or not the conservatee would want visitation, the court shall consider all of the following:

(1) The history of the relationship between the conservatee and the petitioner.

(2) Any statements made by the conservatee expressing his or her desire to have visitation with the petitioner.

(3) Any power of attorney or estate planning document that expresses an opinion on visitation with the petitioner.

(4) A report of an investigation conducted by the Department of Human Resources regarding the proposed visitation.

(5) A report of investigation conducted by the guardian ad litem.

(6) A report of investigation of any person legally authorized to seek a protective order on behalf of the conservatee.

(7) A physician's statement and medical records regarding the conservatee's mental and physical capacity.

(g) If the court determines that the conservatee would want visitation, the court shall grant reasonable visitation, provided the court determines that visitation is in the best interests of the conservatee.

(h) If the court determines that the conservatee has sufficient capacity to make a knowing and intelligent visitation decision and the conservatee expresses that he or she does not desire visitation, then the court shall not grant visitation.

(i) A determination by the court regarding capacity under this section may not be used as evidence of capacity in any other proceeding.

(j) The petition may be filed in the circuit court of either of the following counties:

(1) The county in which the conservatee resides.

(2) The county in which the conservatee is temporarily living.

Section 3. The petition shall state all of the following information:

(1) The condition of the conservatee's physical and mental health, to the extent known by the petitioner.

(2) The efforts to obtain visitation with the conservatee.

(3) The proposed visitation that is sought.

(4) The deficit or deficits, if any, in the conservatee's mental functions that are impaired and an identification of a link between the deficit or deficits and the conservatee's inability to respond knowingly and intelligently to queries about the requested visitation.

(5) The names and addresses, so far as they are known to the petitioner, of the spouse and relatives of the first degree of the conservatee.

Section 4. Upon the filing of the petition, the court shall determine if the conservatee has retained an attorney or if the conservatee plans to retain an attorney.

Section 5. (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 conservatee and the conservatee'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 conservatee's spouse, if any, at the address stated in the petition.

(2) The conservatee's relatives named in the petition at each relative's address stated in the petition.

Section 6. Before ruling on the petition, the court may order the Department of Human Resources to do any or all of the following:

(1) Conduct interviews with the following:

a. The conservatee.

b. All petitioners.

c. The conservatee's spouse, adult child or children, and relatives within the first degree.

d. To the extent practical, neighbors and, if known, close friends of the conservatee.

(2) Inform the conservatee of the contents of the petition.

(3) Determine whether the conservatee has the capacity to consent to the requested visitation.

(4) Determine whether the conservatee desires the proposed visitation.

(5) Report to the court in writing, at least five days before the final hearing, concerning subdivisions (1) to (4), inclusive.

(6) Mail, at least five days before the hearing, a copy of the report referred to in subdivision (5) to all of the following:

a. The attorney, if any, for the petitioner.

b. The attorney, if any, for the conservatee.

c. The spouse and relatives within the first degree of the conservatee, unless the court determines that the mailing will result in harm to the conservatee.

d. Any other persons as the court orders.

(7) The report required by this section is confidential and shall be made available only to the parties, persons described in subdivision (6), persons given notice of the petition who have requested this report or who have appeared in the proceedings, their attorneys, and the court.

(8) 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.

Section 7. (a) In ruling on the petition, the court shall determine whether the conservatee has sufficient capacity to make a knowing and intelligent visitation decision.

(b) The court shall grant reasonable visitation if both of the following conditions exist:

(1) The court determines that the conservatee has sufficient capacity to make a knowing and intelligent visitation decision.

(2) The conservatee expresses a desire for visitation with the petitioner.

(c) If the court determines that the conservatee lacks the capacity to make a knowing and intelligent visitation decision, the court shall determine whether the conservatee would want visitation with the petitioner by taking into consideration all of the following:

(1) The history of the relationship between the conservator and the petitioner.

(2) Any statements made by the conservatee expressing a desire to have visitation with the petitioner.

(3) Any power of attorney or other document that expresses an opinion on visitation with the petitioner.

(4) The report of the Department of Human Resources under Section 6.

(d) The court shall not grant visitation if both of the following circumstances exist:

(1) The court determines the conservatee has sufficient capacity to make a knowing and intelligent visitation decision.

(2) The conservatee expresses that the petitioner not be granted visitation.

(e) A determination by the court regarding capacity under this act is not admissible as evidence in an other legal proceeding.

(f) The court shall order each petitioner to pay the reasonable fees and expenses of any attorney appointed under this act.

Section 8. (a) This section applies with respect to an adult child or a relative of a first degree pursuant to Section 1.

(b) Except as provided under subsection (d), the conservator shall as soon as practicable inform relatives of any of the following:

(1) The conservatee dies.

(2) The conservatee is admitted to a medical facility for acute or chronic care for a period of three days or more.

(3) The conservatee's residence has changed.

(4) The conservatee is staying at a location other than the conservatee's residence for a period that exceeds one calendar week.

(c) In the case of the conservatee's death, the conservator shall inform relatives of any funeral arrangements and the location of the conservatee's final resting place.

(d) The court shall relieve a conservator of the duty to provide notice to a relative under this section if the court finds that:

(1) A relative entitled to notice about the conservatee has submitted a written request to the conservator electing not to receive notice about a conservatee's health and residence.

(2) The conservator was unable to locate the relative after making reasonable efforts to discover and locate the relative.

(3) A protective order was issued against the relative to protect the conservatee.

(4) Notice is not in the best interest of the conservatee.

Section 9. The court in which the petition is filed has continuing jurisdiction to revoke or modify an order made pursuant to this act upon a petition filed, noticed, and heard in the same manner as the original petition was filed.

Section 10. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Family Law

Elderly

Visitation

Conservators

Human Resources Department

Parents