BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 193|
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THIRD READING
Bill No: AB 193
Author: Maienschein (R), et al.
Amended: 7/6/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/30/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
ASSEMBLY FLOOR: 77-0, 6/2/15 - See last page for vote
SUBJECT: Mental health: conservatorship hearings
SOURCE: Conference of California Bar Associations
DIGEST: This bill authorizes 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 requires 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.
ANALYSIS:
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Existing law:
1)Provides that if a person is gravely disabled as a result of
mental illness, or a danger to self or others, then a 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.)
2)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.)
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 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.)
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. (Welf. & Inst. Code
Secs. 5358, 5358.2.)
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, and permits
the appointment of a "conservator of the estate" for a person
who is unable to manage his or her financial resources or
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resist fraud or undue influence. (Prob. Code Sec. 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 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:
1)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 mental disorder or
chronic alcoholism and is unwilling or incapable of accepting
treatment voluntarily.
2)Requires 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.
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.
Background
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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
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.
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This bill allows a probate court, who is overseeing a
conservatorship, to recommend an LPS conservatorship to the
conservatorship investigator.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
1)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
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.
2)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).
3)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.
SUPPORT: (Verified8/28/15)
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Conference of California Bar Associations (source)
American Association of Retired Persons
OPPOSITION: (Verified8/28/15)
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 Supervisors
Urban Counties Caucus
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
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.
ARGUMENTS IN OPPOSITION: The California State Association of
Counties, the County Behavioral Health Directors Association
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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.
ASSEMBLY FLOOR: 77-0, 6/2/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau,
Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,
Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,
Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Bonilla, Chávez, Grove
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
8/31/15 12:47:44
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