Amended in Senate June 15, 2016

Amended in Assembly March 31, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1836

Introduced by Assembly Member Maienschein

(Coauthor: Assembly Member Cristina Garcia)

(Coauthor: Senator Wieckowski)

February 9, 2016

An act to begin delete amend Sections 5350.2, 5352, 5354, and 5360 of end delete begin insert add Section 5350.5 to end insert the Welfare and Institutions Code, relating to conservatorships.

LEGISLATIVE COUNSEL’S DIGEST

AB 1836, as amended, Maienschein. Mental health: begin delete conservatorship hearings. end delete begin insert referral of conservatees. end insert

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 begin delete 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. end delete begin insert alcoholism. Existing law authorizes certain persons to recommend conservatorship of an individual under his or her care to the officer providing conservatorship investigation in the county of the individual’s residence, as specified. end insert 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, begin delete 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 end delete begin insert to refer the conservatee for an assessment by the local mental health system or plan to determine if the conservatee has a treatable mental illness, including whether the conservatee is end insert gravely disabled as a result of a mental disorder or impairment by chronic begin delete alcoholism end delete begin insert alcoholism, end insert 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 begin delete 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 determines after conducting the investigation recommended by the court that the person is gravely disabled, 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. end delete begin insert the local mental health system or plan to file a copy of the evaluation with the court that made the referral. end insert

By begin delete expanding the duties of the county officer providing conservatorship investigation, end delete begin insert increasing county duties, end insert 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:

begin delete

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 members, or any other
person designated to receive notice 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 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, that he or she may request that
information about the time and place of the conservatorship hearing
not be given to family members if 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 a
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.  

(a) If the professional person in charge of an agency
providing comprehensive evaluation or a facility providing
intensive treatment determines that a person in his or her 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 or she may recommend
conservatorship of the person to the officer providing
conservatorship investigation of the person’s county of residence
before admitting the person as a patient in the facility.

(b) The 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 the facility if both of the following
conditions are met:

(1) The professional person or another professional person
designated by him or her has examined and evaluated the person
and determined that the person is gravely disabled.

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

(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 and an examination of
the conservatee, 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.

(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.

(d) If the officer providing conservatorship investigation concurs
with the recommendation of the professional person, pursuant to
subdivision (a) or (b), or determines after conducting the
investigation recommended by the court pursuant to subdivision
(c) that the person is gravely disabled, he or she shall petition the
superior court in the patient’s county of residence to establish
conservatorship.

(e) If temporary conservatorship is indicated, that 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. The officer shall render to the court a
written report of investigation before 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 that may
facilitate the investigation. If the recommendation for
conservatorship 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 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, or,
in a proceeding under the Probate Code, to the court that originally
recommended conservatorship, to the 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.  

(a) The officer providing conservatorship investigation
shall recommend, in his or her 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 subdivision (a) or (b) of Section 5352,
or the determination of the physician or psychologist who presented
medical evidence to the court pursuant to subdivision (c) of Section
5352.

(b) The officer providing conservatorship investigation shall
recommend in his or her 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 or her estate, require those
powers. In making this determination, the officer providing
conservatorship investigation shall consult with the professional
person who recommended conservatorship pursuant to subdivision
(a) or (b) of Section 5352, or the physician or psychologist who
presented medical evidence to the court pursuant to subdivision
(c) of Section 5352.

end delete

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 5350.5 is added to the end insert begin insert Welfare and
Institutions Code end insert begin insert , to read: end insert

begin insert

begin insert 5350.5. end insert   

(a) 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 refer the conservatee, 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 evaluation or treatment to the
conservatee, for an assessment by the local mental health system
or plan to determine if the conservatee has a treatable mental
illness, including whether the conservatee is 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
shall appoint counsel for him or her pursuant to Section 1471 of
the Probate Code.

(b) The local mental health system or plan shall file a copy of
the evaluation with the court that made the referral for evaluation
in a proceeding under the Probate Code.

end insert

begin delete SEC. 5. end delete

begin insert SEC. 2. end insert   

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.