BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 193 (Maienschein)
          Version: June 22, 2015
          Hearing Date: June 30, 2015 
          Fiscal: Yes
          Urgency: No
          NR


                                        SUBJECT
                                           
                      Mental health:  conservatorship hearings

                                      DESCRIPTION  

          This bill would authorize the probate court, after a hearing  
          attended by a proposed conservatee's counsel, to recommend  
          Lanterman-Petris Short (LPS) Act conservatorship and order an  
          investigation, as specified, if the court determines that a  
          person for whom a probate conservatorship has been established  
          may be gravely disabled and is unwilling or incapable of  
          accepting treatment voluntarily.

          This bill would require the officer providing conservatorship  
          investigation to petition the superior court in the patient's  
          county of residence to establish a conservatorship if he or she  
          concurs with the recommendation of the court, and to file a copy  
          of his or her report with the court.

          (This analysis reflects author's amendments to be offered in  
          Committee.)

                                      BACKGROUND  

          The Probate Code sets forth a statutory scheme governing the  
          appointment of conservators for adults who cannot take care of  
          themselves or their finances. These conservatees are often  
          elderly people, but can also be younger people who have been  
          seriously impaired. A conservator of the person is appointed to  
          make decisions about personal matters for the conservatee,  
          including decisions about food, clothing, and residence, and a  








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          conservator of the estate is responsible for handling the  
          financial affairs of the conservatee. A conservator generally  
          has the power to collect the conservatee's assets, pay bills,  
          and make investments, but must seek court supervision for major  
          transactions, such as the purchase or sale of real property,  
          borrowing money, and gifting of assets.

          The Lanterman-Petris-Short (LPS) Act, additionally provides a  
          statutory process under which gravely disabled individuals can  
          be involuntarily held and treated in a mental health facility in  
          a manner that safeguards their constitutional rights.  A person  
          is "gravely disabled" if he or she, as a result of a metal  
          disorder, is unable to provide for his or her basic personal  
          needs for food, clothing, or shelter.  The LPS Act was intended  
          to balance the goals of maintaining the constitutional right to  
          personal liberty and choice in mental health treatment, with the  
          goal of safety when an individual may be a danger to oneself or  
          others. The LPS Act authorizes the superior court to appoint a  
          conservator of a gravely disabled person, so that he or she may  
          receive individualized treatment, supervision, and placement.  

          Under the LPS Act, anyone who, as a result of a mental health  
          disorder, is either a danger to self or to others or is gravely  
          disabled can be involuntarily hospitalized in a facility for 72  
          hours of evaluation and treatment without court intervention. In  
          the case of individuals who are a danger to themselves or  
          others, a peace officer, professional person in charge of an  
          evaluation facility, staff member, or other specified  
          professional who has probable cause, may take the person into  
          custody. If there is probable cause to believe that a person is  
          gravely disabled, any person may make the application to the  
          responsible county agency or person.  If specified criteria are  
          met, the initial 72-hour hold may be extended up to 30 days.   
          Upon the recommendation of the professional person in charge of  
          the evaluation, a conservatorship investigator must investigate  
          all available alternatives to an LPS conservatorship, and  
          recommend to the superior court, for or against conservatorship.  
          This bill, would additionally allow a probate court, who is  
          overseeing a conservatorship, to recommend an LPS  
          conservatorship to the conservatorship investigator.

                                CHANGES TO EXISTING LAW
          
           Existing law  provides that if a person is gravely disabled as a  
          result of mental illness, or a danger to self or others, then a  







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          peace officer, 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.  (Welf. & Inst. Code Sec. 5150.) 

           Existing law  provides that a person who has been detained for 72  
          hours may be detained for up to 14 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.  Existing law further  
          provides that a person who has been detained for 14 days of  
          intensive treatment may be detained for up to 30 additional days  
          of intensive treatment if the person remains gravely disabled  
          and is unwilling or unable to voluntarily accept treatment.   
          (Welf. & Inst. Code Secs. 5250, 5270.15.) 

           Existing law  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 voluntarily accept treatment, and  
          requires the conservatorship investigator, if he or she concurs  
          with the recommendation, to petition the superior court to  
          establish an LPS conservatorship.  (Welf. & Inst. Code Sec. 5350  
          et seq.)

           Existing law  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.  (Welf.  
          & Inst. Code Secs. 5358, 5358.2.)

           Existing law  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, and  
          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.  (Prob. Code Sec. 1801  
          (a)-(b).) 

           Existing law  permits a conservator under the Probate Code to  
          place a conservatee in a locked facility only if there is clear  







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          and convincing evidence of all of the following: 
           the conservatee 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.  (Prob. Code Sec. 2356.5.)
          
           This bill  would authorize a court, after a hearing attended by  
          the proposed conservatee's counsel, to recommend an LPS  
          conservatorship and order the county officer providing  
          conservatorship to conduct an investigation when the court, in  
          consultation with a physician or psychologist providing  
          comprehensive evaluation or intensive treatment, in a probate  
          conservatorship hearing determines, based on evidence presented  
          to the court, 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 or  
          incapable of accepting treatment voluntarily.  

           This bill  would require 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.

           This bill  would additionally require the officer providing the  
          conservatorship investigation to file his or her report with the  
          court that made the conservatorship investigation.  
           This bill  would require an existing probate conservator, if the  
          conservatorship is recommended by the court, to disclose any  
          records or information that may facilitate the investigation. 

                                        COMMENT
           
          1.Stated need for the bill
           
          According to the author: 

            Under current law only a professional from a county agency or  
            facility providing intensive treatment or evaluation services  
            may make a recommendation to the conservatorship investigator  
            for an LPS conservatorship based on specific findings of an  
            individual's level of disability. If an individual is not  
            receiving such intensive treatment or evaluation services, no  







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            such recommendation can be made, and no LPS conservatorship  
            may be contemplated.  At the same time, the Probate Code  
            governing traditional probate conservatorships only allows for  
            treatment of a conservatee in a secured facility, or  
            involuntary administration of psychotropic medications, when  
            the conservatee has a diagnosis of dementia and not for any  
            other mental health diagnosis, no matter how serious. This  
            creates a "gap" in treatment availability into which fall  
            individuals who are not already hospitalized, and thus cannot  
            be recommended, but whose problems stem from mental illness,  
            and therefor do not qualify for treatment under the Probate  
            Code.

           2.Due process rights of potential LPS conservatees
           
          This bill would allow a probate court to make a recommendation  
          for an LPS conservatorship for a current probate conservatee.   
          The recommendation must be made at a hearing in which the  
          probate conservatee is represented by counsel, where evidence  
          supporting the recommendation has been provided, and where the  
          court has consulted with a medical or psychological  
          professional. This bill would not authorize a court to establish  
          the LPS conservatorship on its own motion. Rather, it would  
          allow the court to make a "recommendation," to the county  
          conservatorship investigator based on evidence, including  
          medical evidence, presented at a hearing.  It would then be  
          determined by the county investigator whether to act on that  
          recommendation and petition a superior court for an LPS  
          conservatorship.  

          Opponents argue that this bill "circumvents the legal process"  
          under the LPS Act and infringes on potential LPS conservatees'  
          due process rights.  In opposition, the California State  
          Association of Public Administrators, Public Guardians, and  
          Public Conservators write:

            A probate conservatorship is established for persons unable to  
            provide for their basic needs or who are unable to manage  
            their financial resources or resist fraud or undue influence.   
            The basis of a probate conservatorship is capacity for  
            informed consent, which is a different legal standard than an  
            LPS conservatorship, which is based on grave disability. 

            AB 193 circumvents the legal process established in the LPS  
            Act which an individual suffering from a mental health  







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            disorder who is involuntarily detained is afforded numerous  
            due process rights, including appointment of a patient's  
            rights advocate, probable cause hearings, Rieise (medication)  
            hearings, and the ability to file a writ to avoid being placed  
            on an LPS conservatorship. 

          In response to the concerns that this bill would significantly  
          alter the process by which an LPS conservatorship is created,  
          the author writes, "a judge will now be allowed to make a  
          recommendation where they could not previously, but the power to  
          petition the court for a conservatorship still rests 100 percent  
          in the determination of the county investigating officer. The  
          counties will still have complete control of who they pursue a  
          conservatorship for. After the initial recommendation from the  
          judge, the process remains unchanged from current law ? and the  
          [potential] conservatee will have all the same due process  
          protections that are afforded in current law."

          Staff further notes that by allowing a Probate court to  
          recommend an LPS conservatorship, and requiring the county  
          investigator to look into a potential conservatee, this bill  
          would create an option to have an LPS investigation without a  
          potential conservatee being held under a under a 3, 14, or 30  
          day hold. (See Background.) Thus, the need to file a writ of  
          habeas corpus may not be present.  Persons placed in a temporary  
          LPS conservatorship, which can last anywhere from 30 days to 6  
          months, may file a writ at any time, and those in a permanent  
          LPS conservatorship (lasting 1 year and renewable) may instead  
          request a re-hearing on the conservatorship every six months. In  
          addition, because this bill requires that a potential LPS  
          conservatee is represented by counsel, his or her due process  
          rights will arguably be protected. The American Association of  
          Retired Persons, in support, writes:

            Currently, one of the few persons who can recommend to the  
            conservatorship investigator that a LPS conservatorship be  
            established is the professional from the agency or facility  
            providing intensive treatment or evaluation services.  If an  
            individual is not receiving such intensive treatment or  
            evaluation services, however, no such recommendation can be  
            made, and no LPS conservatorship may be contemplated.  

            AB 193 would fill an important gap by providing an alternate  
            means by which medical evidence of the need for a LPS  
            conservatorship can be presented to the investigating officer  







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            authorized to recommend the establishment of such  
            conservatorships.  
           

           3.Opposition's additional concerns
           
          The California State Association of Counties, the County  
          Behavioral Health Directors Association of California and the  
          Urban Counties Caucus express concern about the potential costs,  
          workload levels, and overall erosion of county authority in  
          conservatorship investigations should this bill move forward. In  
          opposition, these groups write: 

            While ? AB 193 does not require the conservatorship officer to  
            recommend conservatorship, it does compel the conservatorship  
            officer to conduct a conservatorship investigation and report  
            back to the Probate Court their findings.  This is contrary to  
            current law, will increase the number of LPS conservatorship  
            referrals, and will increase the number of LPS conservatorship  
            referrals, and will increase county costs. 

            Counties understand that the root issue and reason for this  
            bill is to provide treatment to those who may be unable to  
            comprehend their illnesses or actions.  However, we note that  
            a person suffering from a mental illness will likely touch the  
            county mental health system and currently may be referred by  
            that system for a LPS conservatorship.  AB 193 would bypass  
            the established mental health system and give probate judges  
            the same authority over mental health evaluations as mental  
            health practitioners.   

          Staff notes that while this bill would require the county  
          officer to file his or her report with the recommending Probate  
          Court, because the officer is already charged with producing  
          this report this requirement is arguably supplementary, not  
          contrary, to existing law.  Additionally, in response to the  
          above concerns, the Conference of California Bar Associations,  
          sponsor, writes:

            AB 193's provisions apply only to a very small number of  
            probate conservatees, who will be referred for investigation  
            only upon sound medical evidence by probate judges who, in  
            most cases, have extensive experience with LPS  
            conservatorships.  Many of these conservatees are likely to  
            eventually wind up in the 5150 process because of the  







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            inability of their conservators to exercise effective control.  
            For these reasons, AB 193 will not impose any additional  
            burden on the LPS process or local governments. To the  
            contrary, the authority granted under AB 193 will be used  
            incredibly sparingly, only under extraordinary circumstances.

            Contrary to what the opponents of the bill have alleged, the  
            judges who will be making the referrals have significant  
            expertise in LPS conservatorships, and will be referring only  
            those current probate conservatees who based on the judges'  
            experience, meet the stringent LPS standards.  In 57 of  
            California's 58 counties, the Mental Health (LPS) court is  
            part of the Probate Division.  In many of those counties (like  
            Sacramento, and certainly every same-sized or smaller county),  
            only a couple of judges handle both probate and LPS  
            conservatorships.  Those judges know very well the difference  
            between a standard probate conservatee and one whose condition  
            has deteriorated to the point where he/she needs the powers  
            and oversight of a LPS conservatorship - because the judge  
            also has been the one reviewing the evidence and granting or  
            denying LPS conservatorships.

           4.Author's amendments
           
          The author offers the following amendments to clarify that a  
          potential LPS conservatee must be represented by counsel when  
          petitioning the court for a recommendation for an LPS  
          conservatorship, and further clarify that the Probate Court has  
          the authority to order an investigation when making a  
          recommendation for an LPS conservatorship.

            Author's amendment: 

            On page 4, line 6, strike "conservatee or" and "or both"
            On page 4, line 7, strike "to" and insert "and order an  
            investigation from"


           Support  :  American Association of Retired Persons (AARP)

           Opposition  :  California State Association of Counties;  
          California State Association of Public Administrators, Public  
          Guardians, and Public Conservators; County Behavioral Health  
          Directors Association of California; Monterey County Board of  
          Supervisors; San Joaquin County; Ventura County Board of  







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          Supervisors; Urban Counties Caucus 

                                        HISTORY
           
           Source  :  Conference of California Bar Associations

           Related Pending Legislation  : None Known

           Prior Legislation  :

          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.

          SB 677 (Lanterman-Petris, Short, Chapter 1667, Statutes of  
          1967), expressed Legislative intent to end the inappropriate,  
          indefinite, and involuntary commitment of persons with mental  
          health disorders and provide for the prompt evaluation and  
          treatment of persons with serious mental disorders.


           Prior Vote  :

          Assembly Floor (Ayes 77, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Health Committee (Ayes 16, Noes 0)

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