BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 436|
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THIRD READING
Bill No: AB 436
Author: Jones (R)
Amended: 3/9/15 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/16/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
ASSEMBLY FLOOR: 78-0, 4/9/15 - See last page for vote
SUBJECT: Guardian or conservator: powers and duties
SOURCE: Conference of California Bar Associations
DIGEST: This bill requires a court, upon granting or denying
authority to a conservator for the placement of a conservatee in
a secured 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.
ANALYSIS:
Existing law:
1) Authorizes a court to appoint a conservator to act on behalf
of a person who is unable to adequately provide for his or
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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).
2) 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, and requires specified information to be
included in the petition.
3) Authorizes a court, upon a showing of good cause, to appoint
a temporary conservator or guardian to serve pending the
appointment of a permanent conservator or guardian.
4) Provides, unless the court orders otherwise, 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.
5) 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.
6) 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.
7) Requires, if a person is furnished legal counsel, 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, include compensation for services
rendered, and expenses incurred, before the date of the order
appointing counsel.
8) Provides that, if the conservatee requires medical treatment
for an existing or continuing medical condition which is not
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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.
9) 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: a) the
conservatee has dementia, as defined; b) the conservatee
lacks the capacity to give informed consent to this placement
and has at least one mental function deficit, and this
deficit significantly impairs the person's ability to
understand and appreciate the consequences of his or her
actions; c) 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 d) the court finds that the proposed placement
in a locked facility is the least restrictive placement
appropriate to the needs of the conservatee.
10)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: a) the
conservatee has dementia, as defined; b) 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 c) the conservatee needs or would benefit
from appropriate medication as demonstrated by evidence
presented by the physician or psychologist.
11)Requires that the conservatee be represented by an attorney
during proceedings for the conservator's petition for
authority to act regarding secured facility placement or
dementia medication administration.
This bill requires, upon granting or denying authority to a
conservator to place the conservatee in a secured RCFE or
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administer dementia medications, the court to discharge the
conservatee's attorney or order the continuation of the legal
representation.
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 unsecured
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
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 requires a court, upon
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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.
Comments
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.
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.
Prior Legislation
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AB 2747 (Committee on Judiciary, Chapter 913, Statutes of 2014)
corrected, among other things, 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 facility which specializes in the care and treatment of
people with dementia.
AB 167 (Harman, Chapter 32, Statutes of 2003) corrected, among
other things, the cross-reference to findings of dementia under
the petition for placement of a conservatee in an RCFE or for
the administration of medications for the care of dementia.
AB 1172 (Kaloogian, Chapter 724, Statutes of 1997) authorized,
among other things, 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 an RCFE
or for the administration of medications for the care of
dementia.
SB 1481 (Mello, Chapter 910, Statutes of 1996) - See Background.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/18/15)
Conference of California Bar Associations (source)
OPPOSITION: (Verified6/18/15)
Coalition for Elder and Dependent Adult Rights
National Association to Stop Guardian Abuse
Nine individuals
ARGUMENTS IN SUPPORT: The Conference of California Bar
Associations (CCBA) notes that this bill is the result of a
bench-bar working group in San Diego, in response to concerns
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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." Further, 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.
ARGUMENTS IN OPPOSITION: The opposition argues that this
bill does not solve the real problem that courts do not have
written fee agreements with attorneys appointed by courts to
represent conservatee interests. The opposition requests that
this bill be amended to instead require court-appointed
attorneys to adhere to the written fee agreement requirements
under the Business and Professions Code.
ASSEMBLY FLOOR: 78-0, 4/9/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Campos, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, 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: Calderon, O'Donnell
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Prepared by:Tara Welch / JUD. / (916) 651-4113
6/19/15 14:55:57
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