BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
AB 2034 (Gatto) - Elder and dependent adults: protective orders.
Amended: July 1, 2014 Policy Vote: Judiciary 7-0
Urgency: No Mandate: Yes
Hearing Date: August 14, 2014
Consultant: Jolie Onodera
SUSPENSE FILE. AS AMENDED.
Bill Summary: AB 2034 would establish a process to allow
relatives of an elder or dependent adult to petition the court
for a protective order to enjoin a person from keeping the elder
or dependent adult in isolation from contact with the relative.
Additionally, this bill:
Requires a conservator of an elder or dependent adult to
inform relatives of the conservatee, as specified, upon the
conservatee's death or admittance to a medical facility for
acute care for a period of three days or more.
Upon receipt of a complaint of isolation from a
petitioner or upon court order, requires the county adult
protective services (APS) or local law enforcement agency
to investigate the complaint within 20 days, as specified,
and prepare a report to be provided to the petitioner and
court.
Requires information on any protective order relating to
elder or dependent adult abuse issued by a court to be
transmitted to the Department of Justice (DOJ), as
specified.
Provides that the prevailing party in any action brought
under the bill's provisions may be awarded court costs and
attorney's fees, if any, and provides that the
non-prevailing party may be required to pay the fees of the
proposed visitee's attorney, whether or not court-appointed
and court costs.
Fiscal Impact (as approved on August 14, 2014):
Potentially significant ongoing costs in the range of
$165,000 to $650,000 (General Fund*) to trial courts for
processing petitions and holding hearings. This estimate is
based on a range of 100 to 500 petitions filed annually
(less than 2 to 10 petitions per county per year) with
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varying degrees of complexity. These costs would be offset
in part to the extent some petitioners would have otherwise
filed for conservatorship.
Potentially significant state-reimbursable costs (General
Fund) to provide court-appointed counsel, including public
defenders, to represent elder and dependent adults in
specified cases.
Non-reimbursable local costs for enforcement offset to a
degree by fine revenue for misdemeanor violations of
protective orders.
*Trial Court Trust Fund
Background: Existing law requires the conservator of a person to
be responsible for the care, custody, control, and education of
the conservatee, except when the court, in its discretion,
limits the powers and duties of the conservator, as specified.
Existing law authorizes a conservator or a trustee of an elder
or dependent adult, an attorney-in-fact, a guardian ad litem, 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 for
a protective order by a relative of an elder or dependent adult
to enjoin a person from keeping the elder or dependent adult in
isolation from contact with the relative.
Proposed Law: This bill would establish a process to allow
relatives of an elder or dependent adult to petition the court
for a protective order to enjoin a person from keeping the elder
or dependent adult in isolation from contact with the relative.
Specifically, this bill:
Authorizes a relative in the first degree of an elder or
dependent adult to petition the court for a protective
order to enjoin a respondent from keeping a proposed
visitee in isolation from contact with the relative.
Provides that an order may be issued to restrain any
person for the purpose of preventing a recurrence of abuse,
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if a declaration shows, to the satisfaction of the court,
reasonable proof of a past act or acts of isolation of the
proposed visitee from contact with the petitioner, and upon
a showing that the proposed visitee desires contact with
the petitioner or that visitation is in the best interests
of the proposed visitee.
Provides that proof of the visitee's desire for contact
with the petitioner may be shown by a report issued by the
county APS agency or law enforcement in the county where
the proposed visitee resides.
Provides that the order may specify the frequency, time,
place, and location of visitation.
Provides that the court may consider various factors in
deciding whether visitation with the petitioner is in the
best interest of the proposed visitee, including whether a
third person should be present during visitation and prior
protective orders issued against the petitioner, if any.
Upon receipt of a complaint of isolation from a
petitioner or upon court order, requires the county adult
protective services (APS) or local law enforcement agency
to, within 20 days of receipt of the complaint or court
order, investigate the complaint and prepare a report to be
provided to the petitioner and court, as specified.
Requires a court hearing to be held within 21 days, or
if good cause appears to the court, 25 days from the date
the petition is filed.
Provides that the court shall issue an order only after
notice and a hearing, and that an order issued may have a
duration of not more than five years, subject to
termination or modification. Provides that an order may be
renewed, either for five years or permanently, as
specified.
Requires information on any protective order relating to
elder or dependent adult abuse issued by a court to be
transmitted to the Department of Justice (DOJ), as
specified.
Provides that the prevailing party in any action brought
under the bill's provisions may be awarded court costs and
attorney's fees, if any, and provides that the
non-prevailing party may be required to pay the fees of the
proposed visitee's attorney, whether or not court-appointed
and court costs.
Requires a conservator of an elder or dependent adult to
inform relatives of the conservatee, as specified, upon the
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conservatee's death or admittance to a medical facility for
acute care for a period of three days or more.
Staff Comments: By establishing a new process to allow relatives
of an elder or dependent adult to petition the court for a
protective order to enjoin a person from keeping the elder or
dependent adult in isolation from contact with the relative,
this bill will result in new ongoing costs to the courts, law
enforcement, and APS agencies.
The Judicial Council has indicated that based on the detailed
procedures contained within the bill, there would likely be
significant costs to the judicial branch related to
implementation. Because it is not possible to determine with
certainty the number of petitions that will be filed in any one
year, based on a range of 100 to 500 petitions filed per year,
costs to the courts would range from $165,000 to $650,000
annually. This estimate is based on court resources and rates
applicable to existing civil domestic violence hearings, with
additional assumptions used for the varying complexity of cases.
To the extent some petitioners under the new process would have
otherwise filed petitions for conservatorships, there would be
some degree of offsetting cost savings.
This bill requires that upon receipt of a complaint of isolation
from a petitioner, or upon court order, a county APS agency or
local law enforcement agency must investigate the complaint
within 20 days and prepare a report to be provided to the
petitioner and court. By imposing new duties upon local law
enforcement agencies and county APS agencies, this bill creates
a state-mandated local program, the costs of which could be
reimbursable by the state. While the mandate on local law
enforcement agencies is subject to the state mandates process
pursuant to Section 6 of Article XIIIB of the California
Constitution, the mandate on county APS agencies is no longer
similarly subject to this process pursuant to Proposition 30.
Prior to FY 2011-12, the state and counties contributed to the
non-federal share of foster care, child welfare services, and
APS expenditures. AB 118 (Committee on Budget) Chapter 40/2011
and ABX1 16 Chapter 13/2011 realigned state funding to the
counties through the 2011 Local Revenue Fund (LRF) for various
programs, including APS. As a result, beginning in FY 2011-12
and for each fiscal year thereafter, non-federal funding and
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expenditures for APS activities are funded through the LRF.
Proposition 30 was passed by the voters in November 2012, and
among other provisions, eliminated any potential mandate funding
liability for any new program or higher level of service
mandated on the counties related to realigned programs,
including APS. Rather, legislation enacted after September 30,
2012, that has an overall effect of increasing the costs already
borne by a local agency for programs or levels of service
mandated by realignment only apply to local agencies to the
extent that the state provides annual funding for the cost
increase. Local agencies are not obligated to provide programs
or levels of service required by legislation above the level for
which funding has been provided.
To the extent it is determined that the provisions of this bill
impose a higher level of service on county APS agencies or
result in an increase in overall costs already borne by counties
for the provision of APS, the state could potentially elect to,
but not be required to, provide funding for the cost increase.
As noted above, it is not possible to determine with certainly
the number of petitions that will be filed in any one year.
Based on a range of 100 to 500 petitions filed per year, to the
extent local law enforcement agencies or APS agencies are
required to investigate complaints within 20 days and submit a
report to the petitioner and court, would result in significant
costs potentially in the hundreds of thousands to low millions
of dollars annually.
Additionally, it is unclear how the mandated 20-day timeframe
within which to investigate complaints of isolation under the
provisions of this measure may impact APS agencies' ability to
adequately respond to its current mandated responsibilities,
including but not limited to the requirement for immediate
response to imminent danger, 10-day response to reports of
danger to an elder or dependent adult necessary to protect the
health or safety of the adult, or within 10 calendar days or as
soon as practicably possible for all other responses. Based on
the SOC 242 Report (APS Monthly Statistical Report), APS
agencies received over 12,200 complaints of abuse and completed
over 9,400 investigations of abuse in the month of May 2014. The
types of abuse investigated include physical, sexual, financial,
neglect, abandonment, isolation, abduction, and
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psychological/mental.
Author amendments:
Delete Section 2 of the bill in its entirety, which
created a new court process for petitioning for visitation
of an elder or dependent adult and mandated investigation
and reporting requirements on law enforcement and county
APS agencies.
Incorporate the authority of a family member to petition
the court to seek visitation with an isolated elder or
dependent adult within existing court processes.
Provide that upon a filing of a petition for visitation,
the court must determine counsel for the elder or dependent
adult, and if no attorney is retained by the elder or
dependent adult, authorizes the court to appoint counsel to
represent the elder or dependent adult.
Specify that the non-prevailing party may be required to
pay the fees and costs of the adult's legal counsel.
Provide that if the elder or dependent adult fails to
participate in the proceeding in any meaningful way, the
court shall appoint a guardian ad litem for the elder or
dependent adult.