BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 193 (Maienschein) - Mental health: conservatorship hearings
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|Version: July 6, 2015 |Policy Vote: JUD. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 17, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 193 would authorize a probate court to order an
investigation and recommend a Lanterman-Petris-Short (LPS)
conservatorship for an individual for whom a conservatorship has
been established under the Probate Code, as specified. This bill
would require the county officer providing the conservatorship
investigation to file a copy of his or her report with the court
making the recommendation.
Fiscal
Impact:
Conservatorship investigations : Potentially significant
non-reimbursable local costs (Local Funds) in the mid to high
hundreds of thousands of dollars annually for county public
guardians to conduct a greater number of conservatorship
investigations and reports. Any increase in local costs is not
estimated to be eligible for state reimbursement as the
Commission on State Mandates (CSM) has determined that
state-mandated activities on public guardians are triggered
AB 193 (Maienschein) Page 1 of
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only after a county's discretionary decision to establish the
office of the public guardian, as specified, and the
investigations would be upon order of the court.
LPS conservatorship placements and services : Potentially
significant to major increases in non-reimbursable local costs
(Local Funds) to county behavioral health and mental health
departments for additional LPS placements, services, and
treatment. The magnitude of these costs would be dependent on
the number of new conservatorships and the level of services
and treatment provided to each conservatee, which is unknown
at this time. To the extent a number of LPS conservatees are
Medi-Cal eligible could result in increases in medically
necessary specialty mental health services including but not
limited to crisis residential treatment and medication support
services, resulting in increased Medi-Cal program costs
(Federal Fund/General Fund).
DSH impact : For LPS conservatorship placements into
Department of State Hospital (DSH) facilities, counties would
be responsible for all treatment costs. The counties are also
billed for actual bed usage according to the bed rate
structure developed by DSH.
Background: Existing law pursuant to the Probate Code sets forth the
judicial procedure required in order to establish a probate
conservatorship, for cases in which someone is no longer able to
handle his or her own financial and/or personal affairs, and the
court appoints an individual (the conservator) to act on behalf
of the incapacitated person (the conservatee). The establishment
of a conservatorship restricts the conservatee's powers over
financial and/or personal care decisions. (Probate Code §§
1800-2893.)
Alternatively, LPS conservatorships are established under the
Lanterman-Petris-Short Act and are governed by the Welfare and
Institutions Code (WIC). For this type of conservatorship, a
conservator is appointed to represent a person who is "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. Existing law defines
"gravely disabled" to mean that a person is, as a result of a
mental disorder or, as a result of impairment by chronic
alcoholism, unable to provide for their basic personal needs for
food, clothing or shelter.
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Under existing law anyone who, as a result of a mental health
disorder, who 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 (WIC § 5150.) In the case of individuals who are a
danger to themselves or others, a peace officer, professional
person in charge of a 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.
An LPS conservatorship can only be recommended to a
conservatorship investigator by a professional from a county
agency or facility providing intensive treatment or evaluation
services. A conservatorship investigator must investigate all
available alternatives to an LPS conservatorship, and make a
recommendation to the court for or against conservatorship. This
bill would additionally allow a probate court that is overseeing
a probate conservatorship to recommend an LPS conservatorship to
the investigator.
Proposed
Law: This bill would authorize a probate court to order an
investigation and recommend an LPS conservatorship for an
individual for whom a probate conservatorship has been
established, as follows:
Authorizes 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 a mental disorder or impairment by
chronic alcoholism and is unwilling or incapable of
accepting treatment voluntarily.
Requires the officer, if the officer providing the
conservatorship investigation concurs with the
AB 193 (Maienschein) Page 3 of
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recommendation of the court, to petition the appropriate
superior court to establish the LPS conservatorship.
Requires the officer providing the conservatorship
investigation to file his or her report with the court that
made the conservatorship investigation.
Requires an existing probate conservator, if the
conservatorship is recommended by the court, to disclose
any records or information that may facilitate the
investigation.
Related
Legislation: AB 1725 (Maienschein) 2014 was similar to this
measure. This bill was held on the Suspense File of the Assembly
Committee on Appropriations.
Staff
Comments: By requiring county officers (public guardians) to
conduct an investigation upon the recommendation of the probate
court and provide a copy of their reports to the court, this
bill imposes a higher level of service on local agencies. While
it is unknown with certainty how many referrals for
investigations will result should this bill be enacted, based on
a survey of counties, it is estimated that costs for additional
investigations could cost in the mid to high hundreds of
thousands of dollars annually. Staff notes that any increase in
local costs is not considered to be eligible for state
reimbursement, as the CSM determined in its statement of
decision of Public Guardianship Omnibus Conservatorship Reform
(07-TC-05), that although the provisions of the statute did in
fact impose new duties on county public guardians, they are
triggered by the county's discretionary decision to create the
office of public guardian and therefore, the requirements do not
create a state-mandated program within the meaning of Article
XIIIB, section 6 of the California Constitution.
Specifically, Government Code § 27430 states the following: (a)
In any county the board of supervisors may by ordinance create
the office of the public guardian and subordinate position which
may be necessary and fix compensation therefor; and, (b) The
board of supervisors may by ordinance terminate the office of
public guardian.
The decision to create the office of public guardian is a local
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discretionary decision based on the county's parens patriae
power "to protect incompetent persons." Local legislative bodies
have broad discretion in the exercise of their powers, both in
determining what the interests of the public require and what
measures are reasonably necessary for the protection of those
interests. The courts have determined that reimbursement is not
required when requirements are triggered by local government's
voluntary decision to participate in a program.
In addition to the county investigation and administrative
costs, this bill could potentially result in a greater number of
LPS conservatorships established, subsequently resulting in an
increased number of LPS conservatees requiring facility
placement and the provision of services and intensive treatment.
It is unknown how many investigations initiated by referral of
the probate court will ultimately result in a county
investigator recommendation for an LPS conservatorship, but
placement and services/treatment costs for even a few
individuals is likely to exceed several hundred thousand dollars
annually. To the extent a percentage of the newly established
LPS conservatees is eligible for the Medi-Cal program could also
result in increased federal and state funding for these costs
for services provided in appropriate settings.
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