BILL ANALYSIS Ó
AB 436
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ASSEMBLY THIRD READING
AB
436 (Jones)
As Amended March 9, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
|----------------+------+--------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Cristina Garcia, | |
| | |Gallagher, Holden, | |
| | |Maienschein, | |
| | |O'Donnell | |
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SUMMARY: Requires the court to specify whether an attorney
representing a conservatee continues in that role after the court
considers a petition seeking special dementia powers for the
conservator. Specifically, this bill requires the court, upon
granting or denying special dementia powers to a conservator, to
discharge the court-appointed attorney or order continued
representation, as provided.
EXISTING LAW:
1)Allows the court to appoint a conservator to act on behalf of a
person who is unable to adequately provide for his or her
personal needs (a conservator of the person) or incapable of
managing his or her property or other financial assets (a
conservator of the estate). Requires the court investigator to
personally interview the proposed conservatee prior to the
hearing and make specified determinations.
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2)Permits the court to appoint an attorney to represent a
conservatee or proposed conservatee if the court determines that
the conservatee or proposed conservatee is not otherwise
represented by counsel and appointment would be helpful in
resolving matters or is necessary to protect the interest of the
conservatee or proposed conservatee.
3)Sets out the powers and duties generally of a conservator of the
person. Specifically prohibits a conservatee form being placed
in a mental health treatment facility or from being administered
experimental drugs, except as provided.
4)Allows a conservator to seek special powers for a conservatee
with dementia, including the ability to place the conservatee in
a secured residential care facility and administer certain
drugs, as specified. Before the court may consider a petition
for these special powers, requires that, among other things, the
conservatee be represented by counsel.
FISCAL EFFECT: None
COMMENTS: This bill, sponsored by the Conference of California
Bar Associations, seeks to clarify how long an appointed counsel
represents a conservatee for whom the conservator seeks special
dementia powers. In a typical conservatorship, a conservator may
not confine the conservatee to a locked facility or administer
certain medications. A court can grant these additional dementia
powers to a conservator only after a hearing where the conservatee
is represented by counsel. This bill requires the court, in those
proceedings, to clarify how long the appointed counsel represents
the conservatee.
In support of the bill, the author writes:
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AB 436 removes the uncertainty that currently plagues
counsel who have been appointed by the court to
represent conservatees in dementia powers cases once
those powers have been granted or denied, and provides
needed guidance to the courts as to the intent of the
legislature regarding the scope of the appointment of
counsel currently required. Absent a court order either
directing them to continue or dismissing them,
court-appointed attorneys (CAAs) in dementia powers
cases are on the horns of an ethical and legal dilemma
once the hearing has been held and powers granted or
denied. Attorneys are concerned that if they do
nothing, they could be subject to discipline for client
abandonment or possibly malpractice. On the other hand,
if they proceed as if they are still functioning as
counsel - e.g., checking in on the client and/or
preparing a report - their actions can be subject to
resentment and challenge by the conservator and/or the
family, contending that it was only done to generate
fees for the attorney. Without greater clarity, the
Courts must also speculate as to the legislative intent
regarding the scope of the appointment, and whether it
is to terminate at the end of the appointment hearing or
continue for monitoring. This uncertainty may have
fostered an assumption in some courts that they are
continuing appointments, and in others that they are
meant to terminate.
Types of Conservatorships: A probate judge may appoint a
conservator to act on behalf of a person who is unable to
adequately provide for his or her personal needs (a "conservator
of the person") or incapable of managing his or her property or
other financial assets (a "conservator of the estate"). The
Probate Code also offers a "limited conservatorship" for
"developmentally disabled adults," under which the court limits
the conservator's power so as to preserve the maximum amount of
independence and self-sufficiency for the conservatee. In
addition, the Lanterman-Petris-Short (LPS) Act created a special
adult conservatorship for persons who were considered "gravely
disabled" by reason of mental illness or chronic alcoholism and
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subject to confinement in a locked psychiatric facility and
administration of psychotropic medication, subject to more
extensive oversight than a probate conservatorship.
Conservatorship with Special Dementia Powers: In 1996, the
Legislature created an alternative to the LPS conservatorship for
people with dementia. AB 1481 (Mellow), Chapter 910, Statutes of
1996, allows a conservator under a Probate Code conservatorship to
seek special powers to confine a conservatee with dementia in a
"secured perimeter" residential care facility and to administer
medication for dementia if various conditions, designed to protect
the conservatee, are met. These conditions include the
appointment of an attorney to represent the conservatee during the
court's consideration of the conservator's petition for the
dementia powers.
This Bill Seeks to Clarify How Long Appointed Counsel Serves:
Under current law, while an attorney is required to represent a
conservatee during the conservator's petition for dementia powers,
it is unclear if the attorney will continue the representation
after the petition is decided. This bill simply requires the
court, after the petition seeking dementia powers is decided, to
either discharge the attorney or order the continuation of such
representation. It does not require such continuing
representation, but gives the court the discretion to decide
whether to require that counsel be retained. The bill does
require that the decision about whether or not to continue the
representation be based on the existing statutory constraint,
which permits a court to appoint counsel if appointment either
would be helpful in resolving matters or is necessary to protect
the interest of the conservatee.
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334
FN: 0000106
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