BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                              2013-2014 Regular Session


          AB 2034 (Gatto)
          As Amended June 11, 2014
          Hearing Date: June 24, 2014
          Fiscal: Yes
          Urgency: No
          TMW


                                        SUBJECT
                                           
              Family Relations:  Family Visitation:  Protective Orders

                                      DESCRIPTION  

          Existing law, the Elder Abuse and Dependent Adult Civil  
          Protection Act (EADACPA), authorizes a conservator or a trustee  
          of an elder or dependent adult, an attorney-in-fact of an elder  
          or dependent adult, a person appointed as a guardian ad litem  
          for an elder or dependent adult, or another person legally  
          authorized to seek a protective order on behalf of an elder or  
          dependent adult who has suffered physical abuse, neglect,  
          financial abuse, abandonment, isolation, abduction, or other  
          treatment with resulting physical harm or pain or mental  
          suffering, or the deprivation by a care custodian of goods or  
          services that are necessary to avoid physical harm or mental  
          suffering.

          This bill would additionally allow a petition to be brought by  
          an adult child of an abused elder or dependent adult to enjoin a  
          party from interfering with visitation between the adult child  
          and the abused elder or dependent adult when an elder or  
          dependent adult and would allow a court to issue an order  
          enjoining a party from isolating or otherwise interfering with  
          the visitation of the abused elder or dependent adult.

          This bill would require the court to appoint counsel for the  
          abused elder or dependent adult and would require the appointed  
          counsel to be paid for by the adult child who brings the  
          petition.  This bill would also require the appointed counsel to  
          submit a report to the court regarding whether the abused elder  
          or adult has capacity and desires the proposed visitation.  This  
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          bill would require this report to be confidential, except as  
          provided.

                                      BACKGROUND  

          The California Legislature, in recognition of the need of  
          special protection for California's vulnerable elder and  
          dependent adult population, has enacted significant criminal and  
          civil protections for elders and dependent adults.  In 1983, the  
          Legislature determined that crimes against dependent adults  
          deserved special consideration and established enhanced criminal  
          penalties against individuals who perpetrate crimes, including  
          great bodily harm, infliction of pain, endangerment, and false  
          imprisonment, against dependent adults.  In 1986, the  
          Legislature extended these protections to elders.  

          In 1992, the Legislature enacted SB 679 (Mello, Ch. 774, Stats.  
          1991), which established the Elder Abuse and Dependent Adult  
          Civil Protection Act (EADACPA).  EADACPA provides enhanced civil  
          remedies to ensure adequate representation of and protection for  
          victims of elder or dependent adult physical and financial abuse  
          and neglect.  These laws authorize courts to issue temporary  
          restraining orders and injunctions against persons engaging in  
          violent, threatening, abusive, or harassing conduct.  

          This bill would additionally authorize a court to issue an order  
          enjoining a person from interfering with visitation between an  
          abused elder or dependent adult and his or her adult child.

                                CHANGES TO EXISTING LAW
           
           Existing law  generally authorizes courts to issue protective  
          orders in proceedings involving civil harassment, workplace and  
          postsecondary school site violence, domestic violence, juvenile  
          law, and elder or dependent adult abuse.  (Code Civ. Proc. Secs.  
          527.6, 527.8, 527.85; Fam. Code Sec. 6200. et seq.; Welf. &  
          Inst. Code Secs. 213.5, 15657.03.)
           
          Existing law  , the Elder Abuse and Dependent Adult Civil  
          Protection Act (EADACPA), generally provides civil protections  
          and remedies for victims of elder and dependent adult abuse and  
          neglect.  (Welf. & Inst. Code Sec. 15600 et seq.)

           Existing law  authorizes a petition to be brought on behalf of an  
          abused elder or dependent adult by a conservator or a trustee of  
          the elder or dependent adult, an attorney-in-fact of an elder or  
                                                                      



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          dependent adult who acts within the authority of the power of  
          attorney, a person appointed as a guardian ad litem for the  
          elder or dependent adult, or other person legally authorized to  
          seek a protective order, as defined. (Welf. & Inst. Code Sec.  
          15657.03(a)(2).)

           Existing law  provides that, upon filing a petition for  
          protective orders under EADACPA, the petitioner may obtain a  
          temporary restraining order, as specified, except to the extent  
          a rule is inconsistent.  However, the court may issue an ex  
          parte order excluding a party from the petitioner's residence or  
          dwelling only on a showing of all of the following:
           facts sufficient for the court to ascertain that the party who  
            will stay in the dwelling has a right under color of law to  
            possession of the premises;
           that the party to be excluded has assaulted or threatens to  
            assault the petitioner, other named family or household member  
            of the petitioner, or a conservator of the petitioner; and
           that physical or emotional harm would otherwise result to the  
            petitioner, other named family or household member of the  
            petitioner, or a conservator of the petitioner. (Welf. & Inst.  
            Code Sec. 15610.03(d).)

           Existing law  authorizes the court to grant or deny a request for  
          the issuance of a temporary restraining order without notice on  
          the same day that the petition is submitted to the court, unless  
          the petition is filed too late in the day to permit effective  
          review, in which case the order shall be granted or denied on  
          the next day of judicial business in sufficient time for the  
          order to be filed that day with the clerk of the court.  (Welf.  
          & Inst. Code Sec. 15610.03(e).)

           Existing law  requires, within 21 days, or, if good cause appears  
          to the court, 25 days, from the date that a request for a  
          temporary restraining order is granted or denied, a hearing to  
          be held on the petition.  If no request for temporary orders is  
          made, the hearing shall be held within 21 days, or, if good  
          cause appears to the court, 25 days, from the date that the  
          petition is filed.  (Welf. & Inst. Code Sec. 15610.03(f).)

           Existing law  authorizes the respondent to file a response that  
          explains or denies the alleged abuse.  (Welf. & Inst. Code Sec.  
          15610.03(g).)

           Existing law  authorizes the court, upon notice and a hearing, to  
          issue any of the orders, as specified, and authorizes the court,  
                                                                      



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          after notice and hearing, to issue an order excluding a person  
          from a residence or dwelling if the court finds that physical or  
          emotional harm would otherwise result to the petitioner, other  
          named family or household member of the petitioner, or  
          conservator of the petitioner.  (Welf. & Inst. Code Sec.  
          15610.03(h).)

           Existing law  provides that, in the discretion of the court, an  
          order issued after notice and a hearing may have a duration of  
          not more than five years, subject to termination or modification  
          by further order of the court either on written stipulation  
          filed with the court or on the motion of a party. These orders  
          may be renewed upon the request of a party, either for five  
          years or permanently, without a showing of any further abuse  
          since the issuance of the original order, subject to termination  
          or modification by further order of the court either on written  
          stipulation filed with the court or on the motion of a party.  
          The request for renewal may be brought at any time within the  
          three months before the expiration of the order.  (Welf. & Inst.  
          Code Sec. 15610.03(i)(1).)

           Existing law  specifies that there is no filing fee for a  
          petition, response, or paper seeking the reissuance,  
          modification, or enforcement of an EADACPA protective order.   
          (Welf. & Inst. Code Sec. 15610.03(q).)

           Existing law  provides, as specified, that a petitioner shall not  
          be required to pay a fee for law enforcement to serve an order  
          issued under the above provision.  (Welf. & Inst. Code Sec.  
          15610.03(r.)

           Existing law  authorizes the court to award court costs and  
          attorney's fees to the prevailing party in any EADACPA  
          protective order action.  (Welf. & Inst. Code Sec. 15610.03(s).)

           Existing law  provides the following definitions:  
           "elder" means any person residing in California, 65 years of  
            age or older (Welf. & Inst. Code Sec. 15610.27); 
           "dependent adult" means any person between the ages of 18 and  
            64 years who resides in California and who has physical or  
            mental limitations that restrict his or her ability to carry  
            out normal activities or to protect his or her rights,  
            including, but not limited to, persons who have physical or  
            developmental disabilities, or whose physical or mental  
            abilities have diminished because of age (Welf. & Inst. Code  
            Sec. 15610.23); 
                                                                      



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           "abuse of an elder or dependent adult" means either:  (a) the  
            physical abuse, neglect, financial abuse, abandonment,  
            isolation, abduction, or other treatment with resulting  
            physical harm or pain or mental suffering; or (b) the  
            deprivation by a care custodian of goods or services that are  
            necessary to avoid harm or mental suffering (Welf. & Inst.  
            Code Sec. 15610.07);
           "physical abuse" means assault, battery, assault with a deadly  
            weapon, unreasonable physical constraint, or prolonged or  
            continual deprivation of food or water, sexual assault, or use  
            of a physical or chemical restraint or psychotropic medication  
            (Welf. & Inst. Code Sec. 15610.63); and
           "isolation" means any of the following: 
             o    acts intentionally committed for the purpose of  
               preventing, and that do serve to prevent, an elder or  
               dependent adult from receiving his or her mail or telephone  
               calls;
             o    telling a caller or prospective visitor that an elder or  
               dependent adult is not present, or does not wish to talk  
               with the caller, or does not wish to meet with the visitor  
               where the statement is false, is contrary to the express  
               wishes of the elder or the dependent adult, whether he or  
               she is competent or not, and is made for the purpose of  
               preventing the elder or dependent adult from having contact  
               with family, friends, or concerned persons;
             o    false imprisonment, as defined; or
             o    physical restraint of an elder or dependent adult, for  
               the purpose of preventing the elder or dependent adult from  
               meeting with visitors.  (Welf. & Inst. Code Sec.  
               15610.43(a).)

           Existing law  provides that acts alleging isolation are subject  
          to a rebuttable presumption that they do not constitute  
          isolation if they are performed pursuant to the instructions of  
          a physician and surgeon licensed to practice medicine in the  
          state, who is caring for the elder or dependent adult at the  
          time the instructions are given, and who gives the instructions  
          as part of his or her medical care.  (Welf. & Inst. Code Sec.  
          15610.43(b).)

           Existing law  also provides that acts alleging isolation do not  
          constitute isolation if they are performed in response to a  
          reasonably perceived threat of danger to property or physical  
          safety.  (Welf. & Inst. Code Sec. 15610.43(c).)
           
          This bill  would authorize, when an elder or dependent adult has  
                                                                      



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          suffered abuse in the form of isolation, as defined, an adult  
          child of the abused elder or dependent adult to petition the  
          court to enjoin a party from interfering with visitation between  
          the adult child and abused elder or dependent adult.  This bill  
          would prohibit the court from issuing an ex parte order for this  
          petition.

           This bill would require the court to appoint counsel for the  
          abused elder or dependent adult if a petition has been brought  
          by an adult child to determine whether or not visitation is  
          desired by the abused elder or dependent adult. 

           This bill  would require the adult child who brings that petition  
          to pay for the court-appointed counsel.

           This bill  would require, prior to the hearing on that petition,  
          court-appointed counsel to do all of the following:
           interview the abused elder or dependent adult for whom the  
            petitioner is seeking visitation;
           inform the abused elder or dependent adult of the contents of  
            the petition;
           determine whether the abused elder or dependent adult has the  
            capacity to consent to the proposed visitation; and
           determine whether the abused elder or dependent adult desires  
            the proposed visitation.
           
          This bill  would require the court-appointed counsel to report to  
          the court, as specified, at least five days before the hearing.   
          This bill would require a copy of that report to be given to the  
          attorney, if any, for the adult child who has filed the petition  
          for visitation, to the party who is alleged to be isolating the  
          abused elder or dependent adult from the petitioner who is  
          seeking visitation, and any other persons as the court orders.

           This bill  would make that report confidential and available to  
          those specified above, persons given notice of the petition who  
          have requested the report or who have appeared in the  
          proceedings, and their attorneys of record, and the court.

           This bill  would provide that, if a report has been received by  
          the court for an abused elder or dependent adult pursuant to a  
          petition for visitation within the preceding 12 months, the  
          court may order, upon good cause shown, that another report is  
          not necessary or that a more limited investigation may be  
          conducted.

                                                                      



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           This bill  would authorize the petition to be brought in the  
          department of the superior court having jurisdiction over  
          probate conservatorships, and, if the court determines that the  
          matter should be determined in a civil action, the court may  
          instead transfer the matter to the general civil calendar of the  
          superior court.

           This bill  would define "adult child" to mean an individual who  
          is 18 years of age or older and is related to the proposed  
          visitee biologically, through adoption, through the marriage or  
          former marriage of the proposed visitee to the adult child's  
          biological parent, or by a judgment of parentage entered by a  
          court of competent jurisdiction.

           This bill  would provide that, if a petition to enjoin a party  
          from interfering with visitation or isolating an elder or  
          dependent adult, then "petitioner" would mean the adult child  
          who has filed the petition to enjoin a party from interfering  
          with visitation between the adult child and an abused elder or  
          dependent adult.

           This bill  would prohibit an order issued pursuant to a petition  
          to enjoin a party from interfering with visitation or isolating  
          an elder or dependent adult from being issued, with or without  
          notice, to restrain any person for the purpose of preventing a  
          recurrence of abuse, if a declaration shows, to the satisfaction  
          of the court, reasonable proof of a past act or acts of abuse of  
          the petitioning elder or dependent adult.

           This bill  would prohibit the adult child petitioner from  
          obtaining a temporary restraining order.

           This bill  would prohibit a request for the issuance of a  
          temporary restraining order without notice to be granted or  
          denied the same day that a petition to enjoin a party from  
          interfering with visitation or isolating an elder or dependent  
          adult is submitted to the court.

           This bill  would authorize a respondent to file a response that  
          explains or denies the alleged abuse or isolation.

           This bill  would require the adult child who files a petition to  
          enjoin a party from interfering with visitation or isolating an  
          elder or dependent adult to pay a fee to file the petition, and  
          this bill would authorize the court to assess a reasonable fee  
          for that filing.
                                                                      



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           This bill  would require the adult child to pay a fee to law  
          enforcement to serve an order on a petition to enjoin a party  
          from interfering with visitation or isolating an elder or  
          dependent adult.

           This bill  would prohibit the court from awarding to the  
          prevailing party costs and attorney's fees in an action brought  
          to enjoin a party from interfering with visitation or isolating  
          an elder or dependent adult.

           This bill  would include legislative finding and declarations  
          that every adult in this state has the right to visit with, and  
          receive mail and telephone or electronic communication from,  
          whomever he or she so chooses, unless a court has specifically  
          ordered otherwise.
                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            There is no legal process to settle such matters as exists  
            with children in divorce cases.  This was the case for  
            Catherine Falk, the daughter of actor Peter Falk.  Mr. Falk  
            divorced Catherine's mother when she was 6 years old and  
            remarried the following year.  For 30 years, Mr. Falk  
            maintained a loving relationship with Catherine despite  
            conflicts with his second spouse.  In 2008, Mr. Falk became  
            completely incapacitated as a result of advanced dementia.  
            Mrs. Falk, however, failed to inform Mr. Falk's children of  
            his condition and refused to allow his children to visit their  
            ailing father.  

            A similar situation has presented itself with the family of  
            radio icon Casey 
            Kasem. . . .  Kasem's daughters, Kerri and Julie Kasem, were  
            barred by their stepmother from seeing their ailing father  
            after regularly seeing him for more than 30 years.  Julie's  
            lawyer advised her that the courts have no jurisdiction to  
            grant visitation rights, so she undertook the expensive and  
            difficult process of petitioning for a conservatorship under a  
            medical power of attorney Casey Kasem had given to Julie's  
            physician husband.  Kerri was recently granted temporary  
            conservatorship due to medical neglect.

                                                                      



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            This bill seeks to prevent adult children from being forced to  
            undertake the long, expensive and intrusive process of filing  
            for a conservatorship when all that is desired is a  
            visitation.  It would also prevent an elder from being forced  
            to endure such conservatorship proceeding started solely for  
            the purpose of a visitation.

            AB 2034 would create a legal mechanism for adult children to  
            petition the court for a visitation with a parent who is not  
            in a conservatorship when access to the parent is being denied  
            by a caretaker.

            The measure amends Welfare & Institutions Code Section  
            15657.03.  This section is part of the Elder Abuse and  
            Dependent Adult Civil Protection Act (EADACPA) and is the  
            existing process provided for an elder, or a representative of  
            an elder, to file for a restraining order against an alleged  
            abuser. In addition, the section lays out the mechanisms for  
            the court proceedings as well as the enforcement of any  
            restraining orders granted by a court.

            The measure piggybacks on to the existing mechanisms for the  
            purposes of allowing a court to petition for a visitation by  
            giving standing to an adult child, as defined, to file a  
            petition to enjoin a party from interfering with a visitation  
            with an elder who has been isolated-defined in [Welfare &  
            Institutions Code] Section 15610.43 as a subset of abuse under  
            EADACPA.
            AB 2034 provides protections to ensure that visitation is not  
            forced upon an elder. Among these protections are the  
            following:
            -Clarifying that no restraining order may be granted by a  
            court ex parte and that no restraining order may be issued  
            without a full court hearing.
            -Providing for a court appointed counsel, paid for by the  
            petitioning adult child, to inquire and report back to the  
            court as to the wishes of the elder as it pertains to a  
            visitation.

            The measure also would call upon the adult child who is  
            petitioning the court for visitation to pay a filing fee for  
            such a petition as well as to pay for the service of such an  
            order by law enforcement.  It also states that a petition for  
            visitation may be filed in a probate court with the court  
            having discretion to send the matter to a civil court.   
            Finally, the bill includes findings and declarations that  
                                                                      



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            affirm the rights of elders to receive communications and  
            visitation with the outside world.

          The Kasem Cares Foundation, in support, writes:

            Given the widespread incidence of divorce and remarriage in  
            our society, there are increasing possibilities for conflicts  
            between the second spouse and the children of the first  
            marriage.  These conflicts can become very painful when the  
            second spouse refuses to let the children even occasionally  
            visit their parent - even when the parent desires such visits.

            As a practical matter a child has little choice under current  
            law but to seek a conservatorship over the parent against the  
            second spouse's objection.  That is not only more of a remedy  
            than is needed for visitation, but it is a difficult and  
            expensive case to make.  

            We think AB 2034 strikes the appropriate balance by creating a  
            right to petition the court for visitation, and granting the  
            court authority to have a court investigator interview the  
            parent to ascertain his or her wishes regarding the proposed  
            visitation.  If the parent does not want visitation, or if the  
            court decides visitation is not in the best interests of the  
            parent, the case is closed.  However, if the parent wants  
            visitation, the court can order it in a way that is not  
            unnecessarily intrusive for the second spouse.
                                   
          2.  EADACPA protective order operation and process  

          EADACPA authorizes a conservator or a trustee of an elder or  
          dependent adult, an attorney-in-fact of an elder or dependent  
          adult, a person appointed as a guardian ad litem for an elder or  
          dependent adult, or another person legally authorized to seek a  
          protective order on behalf of an elder or dependent adult who  
          has suffered physical abuse, neglect, financial abuse,  
          abandonment, isolation, abduction, or other treatment with  
          resulting physical harm or pain or mental suffering, or the  
          deprivation by a care custodian of goods or services that are  
          necessary to avoid physical harm or mental suffering.  (Welf. &  
          Inst. Code Sec. 15657.03.)

          This bill would additionally allow a petition to be brought by  
          an adult child of an abused elder or dependent adult to enjoin a  
          party from interfering with visitation between the adult child  
          and the abused elder or dependent adult.  To allow that  
                                                                      



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          visitation to occur, this bill would allow a court to issue an  
          order enjoining a party from isolating or otherwise interfering  
          with the visitation of the abused elder or dependent adult.   
          This bill would also require the court to appoint counsel for  
          the abused elder or dependent adult and require the appointed  
          counsel to be paid for by the adult child who brings the  
          petition.  The appointed counsel would be required to submit a  
          report to the court regarding whether the abused elder or adult  
          has capacity and desires the proposed visitation and requires  
          this report to be confidential, except as provided.

          The stated intent of this bill is to provide adult children with  
          a court process to obtain visitation with an infirm elder or  
          dependent adult who is unable to express his or her desire to  
          visit with the adult child.  This bill initially would have  
          created an overbroad authorization of an adult child to petition  
          the parent for visitation, regardless of whether the parent was  
          infirm and potentially unable to express the desire for  
          visitation.  Accordingly, the bill was recently amended to  
          instead provide a process for an adult child to file an EADACPA  
          petition to seek an order to restrain an individual who is  
          blocking access to the parent.  Although these amendments focus  
          the bill to apply to certain circumstances, rather than provide  
          a method for an adult child to potentially harass an otherwise  
          estranged parent, there remain numerous concerns with the  
          operation of this bill within the existing EADACPA protective  
          order provisions.

          Stakeholder groups, including Judicial Council, the California  
          Judges Association, the Trusts and Estates Executive Committee  
          of the State Bar, and the State Association of Public  
          Administrators, Public Guardians, and Public Conservatees  
          participated in discussions about the bill in order to  
          understand the necessity to create this visitation process, the  
          purported failings of existing law, and an attempt to craft an  
          appropriate solution, if necessary.  However, stakeholders'  
          numerous concerns about the operation of this bill remain, some  
          of which are as follows.

              a.   Determination of isolation  

            This bill would authorize the adult child to bring a petition  
            to seek visitation with an abused elder or dependent adult.   
            However, it is unclear whether there has to be a determination  
            of isolation before the court can determine whether a  
            protective order is necessary.  While EADACPA provides a  
                                                                      



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            definition of "isolation," it does not provide a mechanism for  
            proving it, and the bill itself does not seem to consider the  
            procedure for proving isolation.  Is the petition simply going  
            to allege that isolation exists and then the court needs to  
            find that before it makes any other findings?  If there is a  
            finding of isolation (which constitutes abuse), there would  
            most likely be other consequences to the person restricting  
            the visitation and other limitations on them, including,  
            presumably, restrictions on their contact with the elder or  
            dependent adult.  In which case, should this bill just  
            authorize an individual to bring an elder or dependent adult  
            abuse claim?  If a prior finding of isolation is required,  
            there should be two proceedings - the first to determine  
            whether the proposed visitee is isolated, and the second to  
            determine whether to enjoin the respondent from interfering  
            with the adult child's visit.  If there is only one  
            proceeding, as suggested by the current bill language, it  
            would presumably require an assumed conclusion that had not  
            yet been established.

              b.   Ethical concerns  
             
             This bill would require the court to appoint an attorney to  
            represent the interests of the abused elder or dependent adult  
            as well as report back to the court whether the abused elder  
            or dependent adult has capacity and desires visitation with  
            the petitioning adult child.  However, the new provisions  
            relating to appointing counsel for the abused elder or  
            dependent adult are highly problematic.  The appointed counsel  
            would appear to have inherent conflicts of interest-being  
            required to investigate and report on his or her own client  
            while being paid by the petitioner, as well as performing  
            fact-finding duties normally performed by an uninterested  
            party.  Also, lawyers are not experts in determining capacity  
            of a person and whether the elder or dependent adult is unable  
            to make his or her own decisions about visitation.  Capacity  
            is not an attorney determination to make - it is a medical  
            opinion, and a final determination that should be made by the  
            court.  

            Further, there is presumably an ethical bar for an attorney  
            appointed for the elder actually telling anyone that their  
            purported client is incapacitated.  This potentially creates a  
            real problem as there is a potential allegation and  
            determination of incapacity without all of the typical  
            protections of a conservatorship.    
                                                                      



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            As background, in probate cases, the attorney representing the  
            elder's interests is not also acting as a fact finder.   
            Rather, a court appoints a court investigator to interview the  
            individual at issue, family members, and caretakers, and  
            report back to the court with the court investigator's  
            findings.  This bill, on the other hand, would require a  
            court-appointed attorney to interview the elder or dependent  
            adult and report back to the court about whether the elder or  
            dependent adult appears isolated and desires visits with the  
            petitioner.  

            Given the recent financial and workload burdens of the courts,  
            stakeholders attempted to find an alternative to the  
            appointment of a court investigator as utilized in  
            conservatorship and guardianship cases.   Since EADACPA  
            protective orders are normally issued in a civil action,  
            concern was raised that there is not a similar fact finder to  
            investigate these cases.  Rather, EADACPA relies on mandatory  
            reporters of elder and dependent adult abuse, Adult Protective  
            Services and law enforcement to investigate these reports.   
            The recent amendments provide that the petition may be brought  
            in probate court and potentially transferred to civil court,  
            even though all other EADACPA actions are civil matters, which  
            potentially complicates additional actions brought under  
            EADACPA for the protection of the elder or dependent adult.   
            In any event, the general belief was the proposed visitee must  
            have his or her own counsel appointed, or allow the visitee to  
            hire counsel, so that his or her interests are adequately  
            protected.

              c.   Court-appointed conservator  

            It is unclear how the injunctive procedures in the bill would  
            relate to any existing conservatorship over the elder or  
            dependent adult, particularly if the person to be enjoined is  
            an appointed conservator.  If there is an existing  
            conservatorship, the issues would presumably need to be  
            addressed in connection with the conservatorship.  It is also  
            unclear how the protective order would operate when the person  
            to be protected has signed an advanced health care directive  
            authorizing the person to be restrained to provide care.  

              d.   Determination of filing fee  

            For ordinary elder and dependent abuse prevention petitions,  
                                                                      



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            there is no filing fee.  For the new types of petitions  
            created under this bill, there would be a fee, which makes  
            sense.  However, the new provision allowing for "a reasonable  
            filing fee" raises policy questions as it leaves the amount of  
            the fee at the discretion of the court.  Historically, the  
            Legislature has elected to codify the amount of various court  
            fees as opposed to providing the court with the ability to  
            charge an unknown amount.  Codifying the specific amount of a  
            fee not only allows the Legislature to evaluate the  
            appropriateness of the amount, but, it arguably provides  
            reassurances to the court that the allowed fee is  
            "reasonable." 

              e.   Confusion and ambiguity in conjunction with existing  
               protective orders  

            This bill would insert its petition provisions into existing  
            protective order provisions.  If the Committee were to approve  
            this bill, the new provisions should be placed in a separate,  
            free-standing section of the Welfare and Institutions Code,  
            because the inclusion of the provisions in the existing elder  
            abuse prevention statute could lead to confusion and  
            ambiguity.  

              f.   Definition of "petitioner"  

            The EADACPA protective order statute provides that  
            "petitioner" means elder or dependent adult to be protected by  
            the protective orders and, if the court grants the petition,  
            the protected person.  This bill would further provide that,  
            for purposes of a petition to enjoin a party from interfering  
            with visitation or isolating an abused elder or dependent  
            adult, "petitioner" would mean the adult child who filed the  
            petition to enjoin a party from interfering with visitation  
            between the adult child and the abused elder or dependent  
            adult.  As such, this bill would make the term "petitioner"  
            ambiguous with the two definitions of "petitioner" since it  
            could be read to address physical or emotional harm to the  
            adult child and persons related to the adult child.  While  
            that reading is clearly contrary to the overall intent of the  
            statute, this bill raises a concern that petitioners would  
            argue that this language is meant to also protect the adult  
            child from harm.  

          3.  Findings and declarations  

                                                                      



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          This bill would include legislative finding and declarations  
          that every adult in this state has the right to visit with, and  
          receive mail and telephone or electronic communication from,  
          whomever he or she so chooses, unless a court has specifically  
          ordered otherwise.  These finding and declarations do not appear  
          to serve any legitimate purpose.


           Support  :  Kasem Cares Foundation; National Association of Social  
          Workers

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :  

          AB 454 (Silva, Ch. 101, Stats. 2011) added due process  
          procedures regarding termination or modification of a protective  
          order issued under the Elder Abuse and Dependent Adult Civil  
          Protection Act (EADACPA).

          AB 1596 (Hayashi, Ch. 572, Stats. 2009) enacted recommendations  
          from the Judicial Council's Protective Orders Working Group for  
          statutory procedural changes to the protective orders statutes  
          and provided clarity and consistency for requests for protective  
          orders.

          AB 225 (Beall, Ch. 480, Stats. 2008) provided that an elder or  
          dependent adult who petitions for a protective order under the  
          EADACPA is not required to pay a fee for law enforcement to  
          serve an order issued by the court.  

          SB 679 (Mello, Ch. 774, Stats. 1991) See Background.
           
          Prior Vote  :

          Assembly Floor (Ayes 78, Noes 0) 
          Assembly Committee on Appropriations (Ayes 17, Noes 0)
          Assembly Committee on Judiciary (Ayes 10, Noes 0)

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