BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 436 (Jones)
Version: March 9, 2015
Hearing Date: June 16, 2015
Fiscal: No
Urgency: No
TMW
SUBJECT
Guardian or conservator: powers and duties
DESCRIPTION
This bill would require a court, upon granting or denying
authority to a conservator for the placement of a conservatee in
a residential care facility or administration of medications for
the care and treatment of dementia, to discharge the
court-appointed attorney or order the continuation of the legal
representation of the conservatee.
BACKGROUND
In 1996, about 500,000 to 600,000 people in California suffered
from Alzheimer's disease or stroke-related dementia, which
placed them at risk for wandering away from unsecure residential
facilities and becoming lost. At that time, many courts would
not grant a conservator the authority to place a dementia
patient in a secured facility, or to authorize administration of
psychotropic medications, unless a conservatorship under the
Lanterman-Petris-Short (LPS) Act was established, and renewed
yearly.
An LPS conservatorship, among other things, is designed to
provide safeguards for persons who are deemed to be gravely
disabled as the result of a mental disorder who may, for some
period, require placement in a locked facility or administration
of psychotropic drugs. The nature of these mental disorders is
such that, with the administration of the drugs, the patient's
condition may well improve. In such instances, the patient's
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status needs to be reviewed periodically. For this reason the
LPS conservatorship is required to be renewed every year.
Recognizing the need to allow a conservator to place a person
with dementia in a more appropriate secured facility and
authorize the administration of psychotropic medications which
permit management of patients with dementia in non-secure
facilities, the Legislature enacted SB 1481 (Mello, Chapter
910, Statutes of 1996) to authorize a conservator to file a
petition to place a conservatee with dementia in an appropriate
secured facility and authorized the administration of
psychotropic medications, which permit management of patients
with dementia in non-secure facilities. As part of that
process, a conservatee has the same rights to petition the court
to contest and terminate this authority as any other conservatee
has to contest and terminate a conservatorship, and the
conservatee must be represented by an attorney during that
process.
In order to clarify for both the courts and the court-appointed
attorneys for conservatees, this bill would require a court,
upon granting or denying authority to a conservator for the
placement of a conservatee in a residential care facility or
administration of medications for the care and treatment of
dementia, to either discharge the court-appointed attorney or
order the continuation of the legal representation of the
conservatee.
CHANGES TO EXISTING LAW
Existing law authorizes a 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). (Prob. Code Sec. 1800 et
seq.)
Existing law authorizes a proposed conservatee, or spouse,
domestic partner, relative, friend of the conservatee, public
administrator, or other interested person to petition the court
for the appointment of a conservator of the proposed
conservatee. Existing law requires specified information to be
included in the petition. (Prob. Code Secs. 1820, 1821.)
Existing law authorizes a court, upon a showing of good cause,
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to appoint a temporary conservator or guardian to serve pending
the appointment of a permanent conservator or guardian. Unless
the court orders otherwise, existing law provides the temporary
conservator or guardian with only those powers and duties that
are necessary to provide for temporary care of the conservatee
or ward and to preserve and protect the property of the
conservatee or ward from loss or injury. (Prob. Code Sec. 2250
et seq.)
Existing law requires a court, when determining the capacity of
a person to do a certain act or make a decision, including, but
not limited to, making medical decisions, to make that
determination based on evidence of a proposed conservatee's
deficit in at least one of a specified list of mental functions.
(Prob. Code Sec. 811(a).)
Existing law authorizes the court to appoint private legal
counsel for a conservatee or a proposed conservatee in any
proceeding if the court determines the person is not otherwise
represented by legal counsel and that the appointment would be
helpful to the resolution of the matter or is necessary to
protect the person's interests. (Prob. Code Sec. 1470(a).)
Existing law , if a person is furnished legal counsel, requires
the court, upon conclusion of the matter, to fix a reasonable
sum for compensation and expenses of counsel, and the sum may,
in the court's discretion, including compensation for services
rendered, and expenses incurred, before the date of the order
appointing counsel. (Prob. Code Sec. 1470(b).)
Existing law provides that, if the conservatee requires medical
treatment for an existing or continuing medical condition which
is not otherwise authorized to be performed upon the
conservatee, and the conservatee is unable to give an informed
consent to this medical treatment, the conservator may petition
the court for an order authorizing the medical treatment and
authorizing the conservator to consent on behalf of the
conservatee to the medical treatment. (Prob. Code Sec.
2357(b).)
Existing law allows a conservator to authorize the placement of
a conservatee in a secured perimeter residential care facility
for the elderly (RCFE) upon a court's finding, by clear and
convincing evidence, all of the following: (1) the conservatee
has dementia, as defined; (2) the conservatee lacks the capacity
to give informed consent to this placement and has at least one
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mental function deficit, and this deficit significantly impairs
the person's ability to understand and appreciate the
consequences of his or her actions; (3) the conservatee needs or
would benefit from a restricted and secure environment, as
demonstrated by evidence presented by the physician or
psychologist, as specified; and (4) the court finds that the
proposed placement in a locked facility is the least restrictive
placement appropriate to the needs of the conservatee. (Prob.
Code Sec. 2356.5(b).)
Existing law allows a conservator of a person to authorize the
administration of medications appropriate for the care and
treatment of dementia, upon a court's finding, by clear and
convincing evidence, of all of the following: (1) the
conservatee has dementia, as defined; (2) the conservatee lacks
the capacity to give informed consent to the administration of
medications appropriate to the care of dementia, and has at
least one mental function deficit, and this deficit or deficits
significantly impairs the person's ability to understand and
appreciate the consequences of his or her actions; and (3) the
conservatee needs or would benefit from appropriate medication
as demonstrated by evidence presented by the physician or
psychologist. (Prob. Code Sec. 2356.5(c).)
Existing law requires that the conservatee be represented by an
attorney during proceedings for the conservator's petition for
authority to act regarding facility placement or dementia
medication administration. (Prob. Code Sec. 2356.5(f)(1).)
This bill , upon granting or denying authority to a conservator
to place the conservatee in a secured RCFE or administer
dementia medications, would require the court to discharge the
conservatee's attorney or order the continuation of the legal
representation.
COMMENT
1. Stated need for the bill
The author writes:
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.
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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.
AB 436 requires the court, after the petition seeking dementia
powers is decided, to either discharge the attorney or order
the continuation of such representation. The bill 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.
2. Clarifying termination or continuation of court-appointed
attorney representation of a conservatee
Although existing law authorizes a court to appoint an attorney
to represent the interests of a conservatee in proceedings for
the placement of the conservatee in a secured residential care
facility for the elderly (RCFE) or the administration of
dementia medications, the law does not specify when the
attorney's representation of the conservatee ends. Accordingly,
this bill seeks to provide clarification of when the
court-appointed attorney's services ends or continues.
Notably, following the granting of a petition to place the
conservatee in a secured RCFE or administration of dementia
medications to the conservatee, the court investigator is
required to annually investigate and report to the court every
two years. (Prob. Code Sec. 2356.5(g).) If the conservatee
objects to the conservator's continued powers granted in that
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petition, or the investigator determines that some change in the
powers granted in the petition proceeding is warranted, the
court is required to provide a copy of the court investigator's
report to the attorney of record for the conservatee. (Id.) If
no attorney has been appointed for the conservatee, an attorney
is required to be appointed and take several enumerated actions
on behalf of the conservatee. (Id.) If an attorney was
court-appointed during the initial petition, but has had no
contact with the conservatee or court following the granting of
the petition, the attorney may believe he or she is no longer
providing services to the conservatee. Yet, under existing law,
that attorney may be called upon at any time following the
initial petition to continue representation of the conservatee.
As such, courts, court-appointed attorneys, conservators, and
conservatees may be uncertain as to when the court-appointed
attorney continues to represent the conservatee, years after the
initial petition, or no longer represents the conservatee after
the initial petition.
The Conference of California Bar Associations (CCBA), sponsor,
notes that this bill is the result of a bench-bar working group
in San Diego, in response to concerns raised by attorneys in the
field and the uncertainty of the local judges regarding
court-appointed attorney responsibilities. CCBA argues that
"Absent a court order either directing them to continue or
dismissing them, court-appointed attorneys . . . in dementia
powers cases are confronted with an ethical and legal dilemma
once the hearing has been held and powers granted or denied. If
they do nothing, attorneys are concerned they could be subject
to discipline for client abandonment or possibly malpractice.
Conversely, 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."
Accordingly, this bill seeks to provide clarification for the
court and interested parties by giving discretion to the court
to either discharge the attorney when dementia powers are
granted, or direct the court-appointed counsel to continue to
represent the conservatee's due process rights.
3. Opposition's concerns
The Coalition for Elder and Dependent Adult Rights (CEDAR),
opposed unless amended, argues that this bill would not solve
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the real problem that courts do not have written fee agreements
with attorneys appointed by courts to represent conservatee
interests. CEDAR requests that the bill be amended to instead
require court-appointed attorneys to adhere to the written fee
agreement requirements under the Business and Professions Code.
In response, the author states that this bill addresses whether
appointed counsel is relieved of further duties or has further
obligations to the conservatee, which can only be answered after
the court has made its decision regarding the conservator's
dementia powers petition, and, therefore, cannot be reasonably
included in the terms of a contract under the Business and
Professions Code.
Support : None Known
Opposition : Coalition for Elder and Dependent Adult Rights
HISTORY
Source : Conference of California Bar Association
Related Pending Legislation : None Known
Prior Legislation :
AB 2747 (Committee on Judiciary, Chapter 913, Statutes of 2014)
among other things, corrected the cross-references to the
relevant California Code of Regulations requirements in the
petition for placement of a conservatee in a locked and secured
nursing facilities which specializes in the care and treatment
of people with dementia.
AB 167 (Harman, Chapter 32, Statutes of 2003), among other
things, corrected the cross-reference to findings of dementia
under the petition for placement of a conservatee in a
residential care facility for the elder or for the
administration of medications for the care of dementia.
AB 1172 (Kaloogian, Chapter 724, Statutes of 1997), among other
things, authorized a licensed psychologist to report his or her
findings of dementia in a declaration submitted with a
conservator's petition for placement of a conservatee in a
residential care facility for the elder or for the
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administration of medications for the care of dementia.
SB 1481 (Mello, Chapter 910, Statutes of 1996) See Background.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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