BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 2034
Author: Gatto (D)
Amended: 8/20/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 7-0, 6/24/14
AYES: Jackson, Anderson, Corbett, Lara, Leno, Monning, Vidak
SENATE APPROPRIATIONS COMMITTEE : 5-0, 8/14/14
AYES: De León, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Walters, Gaines
ASSEMBLY FLOOR : 78-0, 5/28/14 - See last page for vote
SUBJECT : Protective orders
SOURCE : Author
DIGEST : This bill incorporates the authority of a family
member to petition the court to seek visitation with an isolated
elder or dependent adult within existing court processes, and
provides 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 be the elder or dependent adult,
this bill authorizes the court to appoint counsel to the elder
or dependent adult. This bill also specifies that the
non-prevailing party may be required to pay the fees and costs
of the elder or dependent adult's legal counsel, and that if the
elder or dependent adult fails to participate in the petition
proceeding in any meaningful way, the court shall appoint a
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guardian ad litem for the elder or dependent adult.
ANALYSIS :
Existing law:
1.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.
2.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.
3.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
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.
4.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 specific showings.
5.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.
6.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
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appears to the court, 25 days, from the date that the petition
is filed.
7.Authorizes the respondent to file a response that explains or
denies the alleged abuse.
8.Authorizes the court, upon notice and a hearing, to issue any
of the orders, as specified, and authorizes the court, 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.
9.Provides that, in the discretion of the court, an order issued
after notice and a hearing may have 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.
10.Specifies that there is no filing fee for a petition,
response, or paper seeking the reissuance, modification, or
enforcement of an EADACPA protective order.
11.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.
12.Authorizes the court to award court costs and attorney's fees
to the prevailing party in any EADACPA protective order
action.
13.Provides the following definitions:
A. "Elder" means any person residing in California, 65
years of age or older;
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B. "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/her
ability to carry out normal activities or to protect
his/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;
C. "Abuse of an elder or dependent adult" means either:
(1) the physical abuse, neglect, financial abuse,
abandonment, isolation, abduction, or other treatment with
resulting physical harm or pain or mental suffering; or (2)
the deprivation by a care custodian of goods or services
that are necessary to avoid harm or mental suffering;
D. "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 ; and
E. "Isolation" means any of the following:
(1) Acts intentionally committed for the purpose of
preventing, and that do serve to prevent, an elder or
dependent adult from receiving his/her mail or telephone
calls;
(2) 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/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;
(3) False imprisonment, as defined; or
(4) Physical restraint of an elder or dependent adult,
for the purpose of preventing the elder or dependent
adult from meeting with visitors.
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1.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/her medical care.
2.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.
This bill:
1.Incorporates the authority of a family member to petition the
court to seek visitation with an isolated elder or dependent
adult within existing court processes.
2.Provides 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, this bill authorizes the court to appoint counsel to
the elder or dependent adult.
3.Specifies that the non-prevailing party may be required to pay
the fees and costs of the elder or dependent adult's legal
counsel, and that if the elder or dependent adult fails to
participate in the petition proceeding in any meaningful way,
the court shall appoint a guardian ad litem for them.
4.Provides that if a specified relative files a petition, the
elder or dependent adult shall be notified that if he/she does
not attend the hearing, the court may issue a protective order
that facilitates visitation that could last up to five years.
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
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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, Chapter 774,
Statutes of 1991) which established the EADACPA. The 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.
Prior Legislation
AB 454 (Silva, Chapter 101, Statutes of 2011) added due process
procedures regarding termination or modification of a protective
order issued under the EADACPA.
AB 1596 (Hayashi, Chapter 572, Statutes of 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, Chapter 480, Statutes of 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Potentially significant ongoing costs in the range of $165,000
to $650,000 (*Trial Court Trust 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 varying
degrees of complexity. These costs will be offset in part to
the extent some petitioners will have otherwise filed for
conservatorship.
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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.
SUPPORT : (Verified 8/20/14)
Kasem Cares Foundation
National Association of Social Workers
ASSEMBLY FLOOR : 78-0, 5/28/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hernández, Holden,
Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Mansoor, Medina, Melendez, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, John A.
Pérez, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
NO VOTE RECORDED: Frazier, Vacancy
AL:e 8/20/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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