November 7, 2014

I recently came across this news article while reading about the litigation surrounding the final days of Casey Kasem.  The article detailed the recent enactment of new sections to California’s probate code which will come into effect January 1, 2016.  The changes will require “conservators” (a position comparable to Ontario’s court-appointed guardian of the person and/or guardian of property) to provide more information to family members of elderly adults.  The changes also create a new streamlined process by which an elderly adult’s children may petition for visitation rights.

As you may be aware, Jean Kasem, wife of famous radio DJ Casey Kasem, actively blocked three of Casey’s children from visiting him in the final months before his death.  Kerri Kasem, Casey’s daughter, had to go to court to obtain an order allowing her to visit her father.

Kerri’s difficulty in obtaining visitation rights led her to become a vocal advocate for legislative reform.  She was joined in the call for action by Kelly Rooney, daughter of Mickey Rooney, who had been similarly blocked from visiting her father prior to his death by Mickey’s eighth wife.  Their appeals were heard and California enacted new sections to its probate code.

The new law requires a “conservator” to inform family members when the incapable person has been admitted to hospital for acute care or has died.  In the case of death, the conservator must also share information of any funeral arrangements and burial with the deceased’s family.

Where no conservator has been appointed, California’s new law creates a process by which the children of an elderly or dependant adult may petition the court for visitation rights.  The new law requires that the petition be heard within 60 days from the date the petition is filed.  If the elderly adult has not retained counsel, the court may appoint counsel on his or her behalf.  The legislation directs the court to issue an order regarding visitation rights only after the hearing has taken place, and prohibits the court from issuing ex parte orders (i.e. no orders may be issued unless both petitioner and respondent have notice of the hearing and the opportunity to attend).  Finally, and most interesting, the court is restricted in making a visitation order only in circumstances where the elderly adult has expressed a desire for visitors.  The court may appoint a court investigator to determine whether the elderly adult has expressed a desire for visitation.

How does California’s legislation compare to Ontario’s Substitute Decisions Act (“SDA”)?  The SDA requires guardians of property, guardians of care, and attorneys for care to “consult from time to time” with “supportive family members and friends of the incapable person who are in regular personal contact with the incapable person” (see sections 32(5) and 66(7)).  This leaves a great deal of room for interpretation – what is meant by “consult,” who qualifies as “supportive family members,” and what information must be shared.  Nevertheless, the purpose behind the legislation is clear: to encourage open and regular communication between family members.

In comparison, California’s legislation is much more specific: it sets out exactly what information must be shared and with whom.  By imposing narrow requirements, there is a risk that caretakers may only communicate with family members at the required times and not on a general, ongoing basis.

The “consultation” requirement found in Ontario’s SDA is only triggered in the event of incapacity and applies equally to minors and incapable adults.  In contrast, the ability to petition the court in California for visitation rights applies only in cases of adults, and there is no requirement that the adult be incapable.

There are aspects of California’s new code which are appealing.  Ontario’s system of “consultation” could benefit from the addition of terms requiring guardians and attorneys to share information with all immediate family members, supportive or not, in certain defined circumstances.  As noted by some commentators, disputes between family members over visitation rights are only increasing with the rise of blended families.  Coupling legislation with a general aim to encourage communication with specific information sharing requirements may minimize disputes in the future.