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 AB 193 (Maienschein) Page 2 of ? 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 AB 193 (Maienschein) Page 3 of ? 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 AB 193 (Maienschein) Page 4 of ? 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 AB 193 (Maienschein) Page 5 of ? 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 AB 193 (Maienschein) Page 6 of ? 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 AB 193 (Maienschein) Page 7 of ? 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 AB 193 (Maienschein) Page 8 of ? 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 AB 193 (Maienschein) Page 9 of ? 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) **************