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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