California Legislature—2015–16 Regular Session

Assembly Bill No. 1836

Introduced by Assembly Member Maienschein

February 9, 2016

An act to amend Sections 5350.2, 5352, 5354, and 5360 of the Welfare and Institutions Code, relating to conservatorships.

LEGISLATIVE COUNSEL’S DIGEST

AB 1836, as introduced, Maienschein. Mental health: conservatorship hearings.

Existing law provides a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental disorder or an impairment by chronic alcoholism, and requires an officer, including a county public guardian or a county mental health program, to conduct a conservatorship investigation and render a written report to the court of his or her investigation. Under existing law, a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment for a gravely disabled person may recommend a conservatorship for that person, and the agency is required to disclose any records or information that may facilitate an investigation. Existing law requires the officer providing conservatorship investigation, when he or she concurs with the recommendation of the professional person or facility, to petition the superior court in the patient’s county of residence for a conservatorship. Existing law also provides for the establishment of a conservatorship for a person who is unable to properly provide for his or her personal needs or is substantially unable to manage his or her finances.

This bill would authorize the court, if a conservatorship has already been established under the Probate Code, and after a hearing attended by the conservatee, unless he or she waives presence, and the conservatee’s counsel, to recommend an investigation from the officer providing conservatorship investigation if the court, in consultation with a licensed physician or psychologist, as specified, providing comprehensive evaluation or intensive treatment, determines, in a specified proceeding, that the conservatee may be 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. The bill would also require the court to appoint counsel to a conservatee if he or she cannot afford counsel. The bill would require the officer providing conservatorship investigation to petition the superior court in the patient’s county of residence to establish conservatorship if he or she concurs with the recommendation of the professional person providing comprehensive evaluation or intensive treatment or the recommendation of the court, and to file a copy of his or her report with the court. The bill would require a conservator to disclose any records or information that may facilitate the investigation. The bill would also make conforming changes.

By expanding the duties of the county officer providing conservatorship investigation, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 5350.2 of the Welfare and Institutions
Code is amended to read:

5350.2.  

Reasonable attempts shall be made by the county
mental health program to notify family begin delete members end delete begin insert members, end insert or any
other person designated begin insert to receive notice end insert by the person for whom
conservatorship is sought, of the time and place of the
conservatorship hearing. The person for whom the conservatorship
is sought shall be advised by the facility treating the begin delete person end delete begin insert person,
or by the court in a proceeding under the Probate Code if the
conservatorship investigation order was made pursuant to
subdivision (c) of Section 5352, end insert that he or she may request that
information about the time and place of the conservatorship hearing
not be given to family begin delete members, in those circumstances where end delete
begin insert members if end insert the proposed conservator is not a family member. The
request shall be honored by the mental health program. Neither
this section nor Section 5350 shall be interpreted to allow the
proposed conservatee to request that begin delete any end delete begin insert a end insert proposed conservator
not be advised of the time and place of the conservatorship hearing.

SEC. 2.  

Section 5352 of the Welfare and Institutions Code is
amended to read:

5352.  

begin delete When end delete begin insert (a) end insert begin insert   end insert begin insert If end insert the professional person in charge of an
agency providing comprehensive evaluation or a facility providing
intensive treatment determines that a person in his begin insert or her end insert care is
gravely disabled as a result of mental disorder or impairment by
chronic alcoholism and is unwilling to accept, or incapable of
accepting, treatment voluntarily, he begin insert or she end insert may recommend
conservatorship begin insert of the person end insert to the officer providing
conservatorship investigation of the begin insert person’s end insert county of residence
begin delete of end delete begin insert before admitting end insert the person begin delete prior to his admission end delete as a patient
in begin delete such end delete begin insert the end insert facility.

begin delete

The

end delete

begin insert (b) end insert begin insert   end insert begin insert The end insert professional person in charge of an agency providing
comprehensive evaluation or a facility providing intensive
treatment may recommend conservatorship for a person without
the person being an inpatient in begin delete such facility, end delete begin insert the facility end insert if both
of the following conditions are met: begin delete (a) the end delete

begin insert (1) end insert begin insert   end insert begin insert The end insert professional person or another professional person
designated by him begin insert or her end insert has examined and evaluated the person
and determined that begin delete he end delete begin insert the person end insert is gravely begin delete disabled; (b) the end delete
begin insert disabled. end insert

begin insert (2) end insert begin insert   end insert begin insert The end insert professional person or another professional person
designated by him begin insert or her end insert has determined that future examination
on an inpatient basis is not necessary for a determination that the
person is gravely disabled.

begin insert

(c) (1) If a conservatorship has already been established under
the Probate Code, the court, in a proceeding under the Probate
Code, after an evidentiary hearing attended by the conservatee,
unless the conservatee waives presence, and the conservatee’s
counsel, may recommend an investigation from the officer
providing conservatorship investigation in the person’s county of
residence if the court, in a proceeding under the Probate Code,
in consultation with a licensed physician or licensed psychologist
satisfying the conditions of subdivision (c) of Section 2032.020 of
the Code of Civil Procedure providing comprehensive evaluation
or intensive treatment, determines, based on evidence presented
to the court, including medical evidence, that the conservatee may
be 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. If the conservatee cannot afford
counsel, the court, in a proceeding under the Probate Code, shall
appoint counsel for him or her.

end insert begin insert

(2) The officer providing conservatorship investigation shall
file a copy of his or her report with the court making the
recommendation for conservatorship in a proceeding under the
Probate Code.

end insert begin delete

If

end delete

begin insert (d) end insert begin insert   end insert begin insert If end insert the officer providing conservatorship investigation concurs
with the begin delete recommendation, end delete begin insert recommendation of the professional
person, pursuant to subdivision (a) or (b), or the end insert begin insert court, pursuant
to subdivision (c), end insert he begin insert or she end insert shall petition the superior court in the
begin insert patient’s end insert county of residence begin delete of the patient end delete to establish
conservatorship.

begin delete

Where

end delete

begin insert (e) end insert begin insert   end insert begin insert If end insert temporary conservatorship is indicated, begin delete the end delete begin insert that end insert fact shall
be alternatively pleaded in the petition. The officer providing
conservatorship investigation or other county officer or employee
designated by the county shall act as the temporary conservator.

SEC. 3.  

Section 5354 of the Welfare and Institutions Code is
amended to read:

5354.  

(a) The officer providing conservatorship investigation
shall investigate all available alternatives to conservatorship and
shall recommend conservatorship to the court only if no suitable
alternatives are available. begin delete This end delete begin insert The end insert officer shall render to the court
a written report of investigation begin delete prior to end delete begin insert before end insert the hearing. The
report to the court shall be comprehensive and shall contain all
relevant aspects of the person’s medical, psychological, financial,
family, vocational, and social condition, and information obtained
from the person’s family members, close friends, social worker,
or principal therapist. The report shall also contain all available
information concerning the person’s real and personal property.
The facilities providing intensive treatment or comprehensive
evaluation shall disclose any records or information begin delete which end delete begin insert that end insert
may facilitate the investigation. If the begin insert recommendation for
conservatorship end insert begin insert was made pursuant to subdivision (c) of Section
5352, the conservator in a proceeding under the Probate Code
shall disclose any records or information that may facilitate the
investigation. If the end insert officer providing conservatorship investigation
recommends against conservatorship, he or she shall set forth all
alternatives available. A copy of the report shall be transmitted to
the individual who originally recommended conservatorship, begin insert or,
in a proceeding under the Probate Code, end insert to the begin insert court that originally
recommended conservatorship, to the end insert person or agency, if any,
recommended to serve as conservator, and to the person
recommended for conservatorship. The court may receive the
report in evidence and may read and consider the contents thereof
in rendering its judgment.

(b) Notwithstanding Section 5328, when a court with jurisdiction
over a person in a criminal case orders an evaluation of the person’s
mental condition pursuant to Section 5200, and that evaluation
leads to a conservatorship investigation, the officer providing the
conservatorship investigation shall serve a copy of the report
required under subdivision (a) upon the defendant or the
defendant’s counsel. Upon the prior written request of the
defendant or the defendant’s counsel, the officer providing the
conservatorship investigation shall also submit a copy of the report
to the court hearing the criminal case, the district attorney, and the
county probation department. The conservatorship investigation
report and the information contained in that report, shall be kept
confidential and shall not be further disclosed to anyone without
the prior written consent of the defendant. After disposition of the
criminal case, the court shall place all copies of the report in a
sealed file, except as follows:

(1) The defendant and the defendant’s counsel may retain their
copy.

(2) If the defendant is placed on probation status, the county
probation department may retain a copy of the report for the
purpose of supervision of the defendant until the probation is
terminated, at which time the probation department shall return
its copy of the report to the court for placement into the sealed file.

SEC. 4.  

Section 5360 of the Welfare and Institutions Code is
amended to read:

5360.  

begin insert (a) end insert begin insert   end insert The officer providing conservatorship investigation
shall recommend, in his begin insert or her end insert report to the court, for or against
imposition of a disability set forth in Section 5357 on the basis of
the determination of the professional person who recommended
conservatorship pursuant to begin insert subdivision (a) or (b) of end insert Section begin insert 5352,
or the determination of the physician or psychologist who presented
medical evidence to the court pursuant to subdivision (c) of Section end insert
5352.

begin delete

The

end delete

begin insert (b) end insert begin insert   end insert begin insert The end insert officer providing conservatorship investigation shall
recommend in his begin insert or her end insert report any of the additional powers of a
conservator set forth in Section 2591 of the Probate Code if the
needs of the individual patient or his estate require begin delete such end delete begin insert those end insert
powers. In making begin delete such end delete begin insert this end insert determination, the officer providing
conservatorship investigation shall consult with the professional
person who recommended conservatorship pursuant to begin insert subdivision
(a) or (b) of end insert Section begin insert 5352, or the physician or psychologist who
presented medical evidence to the court pursuant to subdivision
(c) of Section end insert 5352.

SEC. 5.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.