Amended in Senate September 2, 2015

Amended in Senate July 6, 2015

Amended in Senate June 22, 2015

Amended in Assembly May 28, 2015

Amended in Assembly April 14, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 193

Introduced by Assembly Member Maienschein

(Coauthors: Assembly Members Chávez, Cooley, and Mathis)

January 28, 2015

An act to amend Sections 5350.2, 5352, 5354, and 5360 of the Welfare and Institutions Code, relating to conservatorships.

LEGISLATIVE COUNSEL’S DIGEST

AB 193, as amended, Maienschein. Mental health: conservatorship hearings.

Existing law provides a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental disorder or an impairment by chronic begin delete alcoholism end delete begin insert alcoholism, end insert and requires an officer, including a county public guardian or a county mental health program, to conduct a conservatorship investigation and render a written report to the court of his or her investigation. Under existing law, a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment for a gravely disabled person may recommend a conservatorship for that person, and the agency is required to disclose any records or information that may facilitate an investigation. Existing law requires the officer providing conservatorship investigation, when he or she concurs with the recommendation of the professional person or facility, to petition the superior court in the patient’s county of residence for a conservatorship. Existing law also provides for the establishment of a conservatorship for a person who is unable to properly provide for his or her personal needs or is substantially unable to manage his or her finances.

This bill would authorize the court, if a conservatorship has already been established under the Probate Code, and after a hearing attended by the begin insert conservatee, unless he or she waives presence, and the end insert conservatee’s counsel, to order an investigation begin delete from, and to recommend a conservatorship to, end delete begin insert from end insert the officer providing conservatorship investigation if the court, in consultation with a licensed physician or psychologist, as specified, providing comprehensive evaluation or intensive treatment, determines, in a specified proceeding, that the conservatee may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling to accept, or is incapable of accepting, treatment voluntarily. The bill would also require the court to appoint counsel to a conservatee if he or she cannot afford counsel. The bill would require the officer providing conservatorship investigation to petition the superior court in the patient’s county of residence to establish conservatorship if he or she concurs with the begin delete recommendation end delete begin insert conservatorship investigation order end insert of the court, and to file a copy of his or her report with the court. The bill would require a begin delete conservator, if conservatorship is recommended by the court, end delete begin insert conservator end insert to disclose any records or information that may facilitate the investigation. The bill would also make conforming changes.

By expanding the duties of the county officer providing conservatorship investigation, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 5350.2 of the Welfare and Institutions
Code is amended to read:

5350.2.  

Reasonable attempts shall be made by the county
mental health program to notify family members, or any other
person designated to receive notice by the person for whom
conservatorship is sought, of the time and place of the
conservatorship hearing. The person for whom the conservatorship
is sought shall be advised by the facility treating the person, or by
the court in a proceeding under the Probate begin delete Code, end delete begin insert Code end insert if the
begin delete recommendation end delete begin insert conservatorship investigation order end insert was made
pursuant to subdivision (c) of Section 5352, that he or she may
request that information about the time and place of the
conservatorship hearing not be given to family members if the
proposed conservator is not a family member. The request shall
be honored by the mental health program. Neither this section nor
Section 5350 shall be interpreted to allow the proposed conservatee
to request that any proposed conservator not be advised of the time
and place of the conservatorship hearing.

SEC. 2.  

Section 5352 of the Welfare and Institutions Code is
amended to read:

5352.  

(a) If the professional person in charge of an agency
providing comprehensive evaluation or a facility providing
intensive treatment determines that a person in his or her care is
gravely disabled as a result of mental disorder or impairment by
chronic alcoholism and is unwilling to accept, or incapable of
accepting, treatment voluntarily, he or she may recommend
conservatorship of the person to the officer providing
conservatorship investigation of the person’s county of residence
before admitting the person as a patient in the facility.

(b) The professional person in charge of an agency providing
comprehensive evaluation or a facility providing intensive
treatment may recommend conservatorship for a person without
the person being an inpatient in the facility if both of the following
conditions are met:

(1) The professional person or another professional person
designated by him or her has examined and evaluated the person
and determined that the person is gravely disabled.

(2) The professional person or another professional person
designated by him or her has determined that future examination
on an inpatient basis is not necessary for a determination that the
person is gravely disabled.

(c) (1) If a conservatorship has already been established under
the Probate Code, the court, in a proceeding under the Probate
Code, after begin delete a end delete begin insert an evidentiary end insert hearing attended by the begin insert conservatee,
unless the conservatee waives presence, and the end insert conservatee’s
counsel, may order an investigation begin delete from, and recommend a
conservatorship of the person under this chapter to, end delete begin insert from end insert the officer
providing conservatorship investigation of the person’s county of
residence if the court, in a proceeding under the Probate Code, in
consultation with a licensed physician or licensed psychologist
satisfying the conditions of subdivision (c) of Section 2032.020
of the Code of Civil Procedure providing comprehensive evaluation
or intensive treatment, determines based on evidence presented to
the court, including medical evidence, that the conservatee may
be gravely disabled as a result of a mental disorder or impairment
by chronic alcoholism and is unwilling to accept or is incapable
of accepting treatment voluntarily. If the conservatee cannot afford
counsel, the court, in a proceeding under the Probate Code, shall
appoint counsel for him or her.

(2) The officer providing conservatorship investigation shall
file a copy of his or her report with the court making the
begin delete recommendation end delete begin insert conservatorship investigation order end insert in a
proceeding under the Probate Code.

(d) If the officer providing conservatorship investigation concurs
with the recommendation of the professional person, pursuant to
subdivision (a) or (b), or the begin insert conservatorship investigation order
of the end insert court, pursuant to subdivision (c), he or she shall petition
the superior court in the patient’s county of residence to establish
conservatorship.

(e) If temporary conservatorship is indicated, that fact shall be
alternatively pleaded in the petition. The officer providing
conservatorship investigation or other county officer or employee
designated by the county shall act as the temporary conservator.

SEC. 3.  

Section 5354 of the Welfare and Institutions Code is
amended to read:

5354.  

(a) The officer providing conservatorship investigation
shall investigate all available alternatives to conservatorship and
shall recommend conservatorship to the court only if no suitable
alternatives are available. This officer shall render to the court a
written report of investigation before the hearing. The report to
the court shall be comprehensive and shall contain all relevant
aspects of the person’s medical, psychological, financial, family,
vocational, and social condition, and information obtained from
the person’s family members, close friends, social worker, or
principal therapist. The report shall also contain all available
information concerning the person’s real and personal property.
The facilities providing intensive treatment or comprehensive
evaluation shall disclose any records or information that may
facilitate the investigation. If the begin delete recommendation for end delete
conservatorship begin insert investigation order end insert was made pursuant to
subdivision (c) of Section 5352, the conservator in a proceeding
under the Probate Code shall disclose any records or information
that may facilitate the investigation. If the officer providing
conservatorship investigation recommends against conservatorship,
he or she shall set forth all alternatives available. A copy of the
report shall be transmitted to the individual begin delete who, or the court, in
a proceeding under the Probate Code, that, end delete begin insert who end insert originally
recommended begin delete conservatorship, end delete begin insert conservatorship, or, in a
proceeding under the Probate Code, to the court that originally
made a conservatorship investigation order, end insert to the person or
agency, if any, recommended to serve as conservator, and to the
person recommended for conservatorship. The court may receive
the report in evidence and may read and consider the contents
thereof in rendering its judgment.

(b) Notwithstanding Section 5328, when a court with jurisdiction
over a person in a criminal case orders an evaluation of the person’s
mental condition pursuant to Section 5200, and that evaluation
leads to a conservatorship investigation, the officer providing the
conservatorship investigation shall serve a copy of the report
required under subdivision (a) upon the defendant or the
defendant’s counsel. Upon the prior written request of the
defendant or the defendant’s counsel, the officer providing the
conservatorship investigation shall also submit a copy of the report
to the court hearing the criminal case, the district attorney, and the
county probation department. The conservatorship investigation
report and the information contained in that report, shall be kept
confidential and shall not be further disclosed to anyone without
the prior written consent of the defendant. After disposition of the
criminal case, the court shall place all copies of the report in a
sealed file, except as follows:

(1) The defendant and the defendant’s counsel may retain their
copy.

(2) If the defendant is placed on probation status, the county
probation department may retain a copy of the report for the
purpose of supervision of the defendant until the probation is
terminated, at which time the probation department shall return
its copy of the report to the court for placement into the sealed file.

SEC. 4.  

Section 5360 of the Welfare and Institutions Code is
amended to read:

5360.  

(a) The officer providing conservatorship investigation
shall recommend, in his or her report to the court, for or against
imposition of a disability set forth in Section 5357 on the basis of
the determination of the professional person who recommended
conservatorship pursuant to subdivision (a) or (b) of Section 5352,
or the determination of the physician or psychologist who presented
medical evidence to the court pursuant to subdivision (c) of Section
5352.

(b) The officer providing conservatorship investigation shall
recommend in his or her report any of the additional powers of a
conservator set forth in Section 2591 of the Probate Code if the
needs of the individual patient or his estate require such powers.
In making this determination, the officer providing conservatorship
investigation shall consult with the professional person who
recommended conservatorship pursuant to subdivision (a) or (b)
of Section 5352, or the physician or psychologist who presented
medical evidence to the court pursuant to subdivision (c) of Section
5352.

SEC. 5.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.