Important Win On Disability Rights

11 Mar Important Win On Disability Rights

Posted at 00:20h in Probate, Trusts & Estates by

The Court of Appeals Confirms that Disabled Adults Cannot Be Forced to have Visitation with Someone they Do Not Want to See

Does a disabled adult who is subject to a California conservatorship have the right to refuse visitation with her estranged father, who she has accused of sexual assault?  In a case handled by Brown White & Osborn LLP attorney Mark Flory, the Court of Appeals has confirmed that the Court does not have authority to force a conservatee to visit someone against their will.

Anna Navarrete is a disabled adult who testified at trial that she was the victim of sexual assault perpetrated by her father.  The testimony was supported by testimony from her therapist and family members.  At trial, her father denied the allegations and he has not been charged with any crime. After a trial on competing petitions for conservatorship, her mother was appointed as her conservator and the court, despite the evidence of sexual assault, made an order that would have required Anna to have visitation with her father with a therapist in a therapeutic setting.

The appeal argued that California law does not authorize a Court to force a conservatee to have visitation with someone with whom the conservatee does not want contact.  Probate Code section 2351 provides that a person who is a conservatee does not lose the right to receive visitors, telephone calls and personal mail.  The Court has authority to make orders to enforce these rights.  However, this provision of the law does not give the Court authority to force a conservatee to have unwanted visits.

Courts routinely order visitation for children in custody and guardianship cases.  However, an adult conservatee’s disability does not put them in the legal position of a minor.  This case confirms that a disabled adult has the right to personal autonomy and freedom to decide with whom they would like to visit.

The Court of Appeal’s decision can be read at Conservatorship of Navarrete (2020) 58 Cal.App.5th 1018, 273 Cal.Rptr.3d 86.

Mark Flory

Mark Flory

Mark Flory is Special Counsel with Brown White & Osborn LLP. His practice focuses in the areas of probate and trust administration and litigation, estate planning, conservatorships, and protecting elders and individuals with disabilities.
Mark Flory

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