The issue of what powers does a conservator of the person have over a conserved person’s right to receive their mail and right to see people that they want to see comes up quite often in my conservatorship matters. While a conservator of the person has broad powers regarding the physical well-being of a conserved person, there are certain powers that have to be specifically granted by the court. The over-arching intent of a conservatorship is to “Protect the rights of persons who are placed under conservatorships.” Probate Code Section 1800(a). The Probate Code reserves a conservatee certain personal rights such as “the right to receive visitors, telephone calls, and personal mail, unless specifically limited by court order.” Probate Code Section 2351(a).
The ability to restrict visitors, phone calls and mail can be important if the conservatee is being unduly influenced by someone. While the conservatee may want to continue to communicate and see these individuals, it is not in their best interest and is exposing the conservatee to harm. On the flip-side a conservatee may not want to visit a certain person.
A conservator or counsel for the conservatee can petition the court to restrict visitation or contact (via telephone or mail) with certain people. Obtaining a restraining order is also an option if there are sufficient facts. For an elderly conservatee, the court can grant a restraining order if the abuse is financial. The conservator can be a petitioner in a restraining order on behalf of the conservatee. On a practical note, the enforcement of a petition from the probate court restricting visitation of a person may be more difficult than the enforcement of a restraining order. I suspect that a police officer may be more familiar with a restraining order than they are with a probate court order.
If the need for the conservatorship is because someone is unduly influencing the conservatee, then the ability to restrict visitation, mail and telephone calls from the influencer should be requested in the initial petition for appointment. But, the request can be made at any time in the conservatorship including during a temporary conservatorship.
If a conservator does not have the authority to restrict visitators, mail or telephone calls, then the conservatorship should take care that the conservatee has the ability to see who they want to see, that they have access to all of their personal mail and that they have the ability to receive phone calls. If these rights are being inappropriately restricted, then it exposes the conservator to a claim of breach of fiduciary duty.