BILL ANALYSIS Ó
AB 193
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Date of Hearing: April 21, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB
193 (Maienschein) - As Amended April 14, 2015
SUBJECT: Mental health: conservatorship hearings
KEY ISSUE: Should a probate court, based on medical evidence
presented to it, be authorized to recommend a conservatorship
for a probate conservatee who is gravely disabled by mental
illness and unwilling to accept voluntary treatment?
SYNOPSIS
California has two types of conservatorships. Probate
conservatorships are established for adults who cannot
adequately care for basic personal needs. Most probate
conservatees are either elderly persons or younger adults with
severe developmental disabilities. Conservatorships established
under the Lanterman-Petris-Short (LPS) Act, on the other hand,
are for persons gravely disabled by mental illness. LPS
conservatorships originate when a psychiatric facility in which
the prospective conservatee is held makes a recommendation to a
conservatorship investigator, who in turn may, if it concurs
with the recommendation, petition a superior court for the LPS
conservatorship. A critical difference between a probate
conservatorship and the LPS conservatorship is that the former
only allows the conservator to consent to medical treatment on
behalf of the conservatee; the probate conservator cannot, with
one exception, compel treatment if the conservatee refuses. The
LPS conservator, on the other hand, may, if a court order so
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provides, compel psychiatric treatment and placement in a locked
facility for a conservatee who is unwilling to accept voluntary
treatment.
According to the author, many seriously mentally ill persons who
might benefit from an LPS conservatorship and treatment cannot
obtain it because they are not "gravely disabled," or a "danger
to self or others," the latter of which is required for the
initial hold which triggers the LPS process. This bill would
create an additional means for recommending an LPS
conservatorship to the county investigator. It would allow a
probate court to make a recommendation for an LPS
conservatorship to the county investigator, but only if the
person is already under a probate conservatorship and the court
has heard medical evidence supporting the recommendation. This
bill does not permit the court to establish an LPS
conservatorship on its own motion. It only permits the court to
make a recommendation, based on medical testimony and
consultation, to the county investigator. It would still be up
to the investigator to act on that recommendation in accordance
with all of the requirements of existing law. Last year's AB
1725, a nearly identical measure by the same author, passed out
of this Committee after it was amended to address due process
concerns. The bill passed out of the Assembly Health Committee
on a 16-0 vote. The bill continues to be opposed by the
counties and public guardians, who primarily contend that the
measure would increase costs and workloads for counties and
investigators.
SUMMARY: Permits a probate court to recommend an LPS
conservatorship to a county conservatorship investigator, as
specified. Specifically, this bill:
1)Permits a court, after a hearing attended by the proposed
conservatee or the proposed conservatee's counsel, or both, to
recommend an LPS conservatorship to the county officer
providing conservatorship investigations when the court, in
consultation with a physician providing comprehensive
evaluation or intensive treatment, in a probate
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conservatorship hearing determines, based on evidence
presented to the court, including medical evidence, that a
person for whom a probate conservatorship has been
established, may be gravely disabled as a result of mental
disorder or chronic alcoholism and is unwilling to accept, or
incapable of accepting treatment voluntarily. Specifies that
if the probate conservatee cannot afford counsel, the court
shall appoint counsel for him or her.
2)Permits the officer, if the officer providing the
conservatorship investigation concurs with the recommendation
of the court, to petition the appropriate superior court to
establish the LPS conservatorship.
3)Requires the officer providing the conservatorship
investigation to file his or her report with the court that
made the conservatorship investigation within 30 days of
receiving a recommendation.
4)Requires an existing probate conservator, if the
conservatorship is recommended by the court, to disclose any
records or information that may facilitate the investigation.
EXISTING LAW:
1)Provides that if a person is gravely disabled as a result of
mental illness, or is determined to be a danger to self or
others, then a peace officer, the staff of a designated
treatment facility or crisis team, or other professional
person designated by the county, may, upon probable cause,
take that person into custody for a period of up to 72 hours
for assessment, evaluation, crisis intervention, or placement
in a designated treatment facility. (Welfare & Institutions
Code Section 5150.)
2)Provides that the person who has been detained for 72 hour,
pursuant to the above, may be detained for up to14 days of
intensive treatment if the person continues to pose a danger
to self or others, or to be gravely disabled, and the person
has been unwilling or unable to accept voluntary treatment. A
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person who has been detained for 14 days of intensive
treatment may be detained for up to 30 days of intensive
treatment if the person remains gravely disabled and is
unwilling or unable to accept treatment voluntarily. (Welfare
& Institutions Code Sections 5250, 5270.15.)
3)Allows the professional person in charge of a facility
providing 72-hour, 14-day, or 30-day treatment to recommend an
LPS conservatorship to the county conservatorship investigator
for a person who is gravely disabled and is unwilling or
unable to accept voluntary treatment. Requires the
conservatorship investigator, if he or she concurs with the
recommendation, to petition the superior court to establish an
LPS conservatorship. (Welfare & Institutions Code Sections
5350 et seq.)
4)Gives the LPS conservator the right, if specified in the court
order, to require the conservatee to receive treatment related
specifically to remedying or preventing the recurrence of the
conservatee's being gravely disabled. However, in the absence
of such an order, the conservatee generally retains the right
to give or withhold consent to medical treatment, except as
specified. (Welfare & Institutions Code Sections 5358,
5358.2; see also Scott v. Superior Court (2012) 204 Cal. App.
4th 326, rev. denied.)
5)Permits any interested person to petition the court for the
appointment of a "conservator of the person" for a person who
is unable to provide properly for his or her personal needs
for physical health, food, clothing, or shelter. Permits the
appointment of a "conservator of the estate" for a person who
is unable to manage his or her financial resources or resist
fraud or undue influence. (Probate Code Section 1801
(a)-(b).)
6)Permits a conservator under the Probate Code to place a
conservatee in a locked facility only if there is clear and
convincing evidence of all of the following: the conservatee
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has dementia; the conservatee lacks capacity to give informed
consent, as specified, to this placement; the conservatee
would benefit from this placement; and the court determines
that placement in a locked facility is the least restrictive
placement given the needs of the conservatee. (Probate Code
Section 2356.5.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: California has two types of conservatorships.
Probate conservatorships - established under the Probate Code -
are for adults who cannot adequately care for their basic
personal needs or manage their financial resources. Most
probate conservatees are elderly persons or younger adults with
severe developmental disabilities. A petition for a probate
conservatorship can be filed by any interested person, though
the petitioner is often a spouse or family member, or a local
social welfare agency that has dealt with the proposed
conservatee in some capacity. Conservatorships established
under the Lanterman-Petris-Short (LPS) Act, on the other hand,
are for persons who are gravely disabled by mental illness and
who had previously committed to a psychiatric facility for 72
hours because they were deemed a threat to self or others.
After the initial 72-hour evaluation in a psychiatric treatment
facility (a so-called "5150" for the code section that
authorizes it) the person may be placed on an additional 14-day
hold. At the end of this 14-day period the director or other
authorized professional of the psychiatric facility may, if
warranted, recommend that the county conservatorship
investigator (sometimes known as the "Public Guardian" or
"County Conservatorship Officer") petition the superior court
for a year-long LPS conservatorship.
A key difference between a probate conservatorship and an LPS
conservatorship is that the probate conservatorship, as a
general rule, only allows the conservator to consent to medical
treatment on behalf of the conservatee. The probate conservator
cannot, however, compel treatment if the conservatee refuses.
One exception to this rule is that, if the conservatee suffers
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from dementia or certain other conditions exist, the conservator
can compel commitment and appropriate treatment in a locked
nursing facility. (Probate Code Section 2356.5.) The LPS
conservator, on the other hand, may compel treatment for a
conservatee who is unwilling to accept voluntary treatment,
including forced placement in a locked facility and, under
certain circumstances, administration of psychotropic drugs.
According to the author, many seriously mentally ill persons who
might benefit from an LPS conservatorship cannot obtain one
because their condition does not rise to the level of creating a
"danger to themselves or others," as is required to trigger the
initial "5150" hold and the eventual LPS process. This bill
would create an additional means by which the LPS
conservatorship may be recommended to the county conservatorship
investigator. While existing law only allows the director or
other authorized professional of a psychiatric facility to
recommend an LPS conservatorship, this bill would allow a
probate court to make a recommendation to the county
investigator, but only if the person is already under a probate
conservatorship and the court has heard medical evidence
supporting its recommendation.
Bill Maintains Existing Due Process. Significantly, this bill
does not permit the court to establish the LPS conservatorship
on its own motion; rather, this bill permits the court to make a
"recommendation," based on medical evidence presented at a
hearing to the county conservatorship investigator. As recently
amended, the bill would also require the court to consult with a
physician who regularly provides comprehensive evaluation or
intensive treatment. It would still be up to the investigator,
if he or she concurs with the court, to act on that
recommendation and petition a superior court for an LPS
conservatorship. Although some opponents claim that this bill
"circumvents the legal process" under the LPS Act and the
corresponding "due process rights" that existing law affords,
this does not appear to be the case. The only thing that this
bill does is to allow a probate court (in addition to the
director of a psychiatric facility, as authorized by current
law) to make a recommendation. The recommendation can only be
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made at a hearing in which the probate conservatee is
represented by counsel, where medical testimony supporting
recommendation has been provided, and where the court has
consulted with a psychiatric professional. Once this
recommendation has been made, the county investigator may either
concur or not. The process for establishing the LPS
conservatorship and the due process that it entails remain
unchanged.
Bill Covers a Seemingly Narrow Group of People. This bill would
affect what seems to be a relatively small group of persons.
Because the probate court could only recommend the LPS
conservatorship for someone who is already under a probate
conservatorship, this bill will only affect those persons who
satisfy the criteria for both the probate and LPS
conservatorship. This would seem to mitigate, to some degree,
the concerns raised by the opposition that this bill will
greatly increase the costs and workloads of county
investigators, public conservators, and public guardians.
Should the bill pass out of this Committee today, it will be
referred to the Assembly Appropriations Committee where
questions of costs and available resources will presumably be
more fully considered.
ARGUMENTS IN SUPPORT: According to the author and sponsor, the
Conference of California Bar Associations, probate courts today
are hampered in their ability to ensure proper care and
treatment of probate conservatees who suffer from a mental
illness. The author contends that there is a growing class of
people whose situation is not adequately covered by the
requirements of either a probate conservatorship or an LPS
conservatorship. The author notes, for example, that only
professionals from the psychiatric facility treating a patient
can make a recommendation for the LPS conservatorship. While
many probate conservatees may suffer from serious, treatable
mental illness, they do not necessarily end up in a psychiatric
facility or get appropriate treatment because they may not meet
the "5150" criteria necessary to trigger the LPS process. The
law governing traditional probate conservatorships allows for
treatment of a conservatee in a secured facility if the person
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has a diagnosis of dementia, but not for a younger person with a
mental health diagnosis. The author contends that there are
gaps between the probate and LPS conservatorship criteria which
make it harder for mentally ill individuals who are not already
hospitalized to qualify for either a probate or an LPS
conservatorship. By allowing judges to initiate - but not
mandate or circumvent - the LPS conservatorship process, this
bill would remove obstacles to treatment for these individuals.
AARP supports this bill for substantially the same reasons as
those noted above. AARP adds, however, that the costs will not
be as great as opponents claim because "there is good reason to
expect that most of the people served under AB 193 will not end
up with the [Public Guardian] serving as the conservator." This
is because, AARP contends, for probate conservatees "one of the
following is likely true: (1) there is a sufficient estate to
pay for a private professional conservator, or (2) people who
care enough about the conservatee spent the money to initiative
a probate conservatorship and therefore presumptively are
willing to serve as LPS conservators."
ARGUMENTS IN OPPOSITION: This bill is opposed by the California
State Association of Public Administrators, Public Guardians,
and Public Conservators (Association). The Association makes
two claims. First, it argues that AB 193 "circumvents the legal
process established by the LPS Act in which an individual
suffering from a mental health disorder who is involuntarily
detained is afforded numerous due process rights." Second, the
Association contends that the bill will increase costs and
workloads, as county investigations are "expensive and take a
lot of time and resources." The bill is also opposed by the
California State Association of Counties, the County Behavioral
Health Directors Association of California, and the Urban
Counties Caucus who are "primarily concerned about the potential
costs, workload levels, and overall erosion of county authority
in conservatorship investigations should this measure move
forward."
Recent Legislation: AB 1725 (2013-2014 sess.) by the same
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author was nearly identical to AB 193, the bill presently before
the Committee. AB 1725 passed out of the Assembly Health
Committee on a 16-0 vote and out of the Assembly Judiciary
Committee on a 9-1 vote. It died in the Assembly Appropriations
Committee.
SB 364 (Steinberg), Chapter 567, Statutes of 2013, broadens the
types of facilities that can be used for purposes of a 72-hour
treatment and evaluation under the LPS Act and permits county
mental health directors to develop procedures for the
designation and training of professionals that carry out
functions related to 72-hour holds.
REGISTERED SUPPORT / OPPOSITION:
Support
Conference of California Bar Associations (sponsor)
AARP
Opposition
California State Association of Counties
CA State Association of Public Administrators, Public Guardians,
and Public Conservators
County Behavioral Health Directors Association of California
Urban Counties Caucus
Analysis Prepared
by: Thomas Clark/JUD./(916) 319-2334
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