BILL NUMBER: AB 1836 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 15, 2016
AMENDED IN ASSEMBLY MARCH 31, 2016
INTRODUCED BY Assembly Member Maienschein
(Coauthor: Assembly Member Cristina Garcia)
(Coauthor: Senator Wieckowski)
FEBRUARY 9, 2016
An act to amend Sections 5350.2, 5352, 5354, and 5360 of
add Section 5350.5 to the Welfare and
Institutions Code, relating to conservatorships.
LEGISLATIVE COUNSEL'S DIGEST
AB 1836, as amended, Maienschein. Mental health:
conservatorship hearings. referral of conservatees.
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. 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. 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 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 gravely disabled as a result of a mental
disorder or impairment by chronic alcoholism
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
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.
the local mental health system or plan to file a copy of the
evaluation with the court that made the referral.
By expanding the duties of the county officer providing
conservatorship investigation, increasing county
duties, 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 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.
SECTION 1. Section 5350.5 is added to the
Welfare and Institutions Code , to read:
5350.5. (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.
SEC. 5. SEC. 2. 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.