BILL ANALYSIS Ó
AB 1836
Page 1
Date of Hearing: March 15, 2016
ASSEMBLY COMMITTEE ON HEALTH
Jim Wood, Chair
AB 1836
(Maienschein) - As Introduced February 9, 2016
SUBJECT: Mental health: conservatorship hearings.
SUMMARY: Permits a judge presiding over an established probate
conservatorship to recommend an investigation for the
establishment of a Lanterman-Petris-Short (LPS) conservatorship.
Specifically, this bill:
1)Authorizes a court to recommend an investigation in a
proceeding under the Probate Code, as specified, if a
conservatorship has already been established under the Probate
Code and after an evidentiary hearing has been attended by the
conservatee and the conservatee's counsel, and if the court,
in consultation with a licensed physician or psychologist
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
2)Requires the court to appoint counsel if a conservatee cannot
afford counsel relating to the proceedings in 1) above.
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3)Requires the officer providing conservatorship investigation
to file a copy of his or her report with the court making the
recommendation for conservatorship in 1) above.
4)Authorizes the officer providing conservatorship investigation
to petition the superior court in the patient's county of
residence to establish conservatorship pursuant to an
investigation conducted pursuant to 1) above.
5)Requires a conservator to disclose any records that may
facilitate an investigation pursuant to 1) above. Requires a
copy of the investigation report to be transmitted to the
court specified in 1) above.
6)Makes other related and conforming changes.
EXISTING LAW:
1)Provides for the involuntary commitment and treatment of
individuals with specified mental disorders and for the
protection of committed individuals, with the declared goal of
ending inappropriate, indefinite, and involuntary commitment
of mentally disordered persons, developmentally disabled
persons, and persons impaired by chronic alcoholism.
2)Creates a series of processes for individuals to receive
mental health treatment while being held involuntarily, known
as a "5150 hold", including:
a) A process for a person to be taken into custody, upon
probable cause that they are a danger to self, a danger to
others, or gravely disabled as a result of a mental health
disorder, for a period of up to 72 hours, as specified;
b) For a person who has been detained for 72 hours, a
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process for the person to be detained for up to14 days of
intensive treatment if the person continues to pose a
danger to self or others, or to be gravely disabled, and
the person has been unwilling or unable to accept voluntary
treatment;
c) For a person who has been detained for 14 days of
intensive treatment, a process for the person to be
detained for up to 30 days of intensive treatment if the
person remains gravely disabled and is unwilling or unable
to accept treatment voluntarily, or up to 180 days if the
person presents a demonstrated danger to others;
d) A process for the appointment of a conservator, known as
LPS conservatorship, for a person who has been
involuntarily detained and is gravely disabled as a result
of a mental disorder or impairment by chronic alcoholism,
to provide individualized treatment, supervision, and
placement. Specifies the following for purposes of an LPS
conservatorship:
i) Allows the professional person in charge of a
facility providing 72-hour, 14-day, or 30-day treatment
to recommend conservatorship to the conservatorship
investigator for a person who is gravely disabled and is
unwilling or unable to accept voluntary treatment;
ii) The conservatorship investigator, if he or she
concurs with the recommendation, may petition the
superior court to establish LPS conservatorship or
temporary (up to 30 days) conservatorship;
iii) Requires the conservatorship investigator to
investigate all available alternatives and recommend
conservatorship only if no suitable alternatives are
available. Requires the investigator to provide a
report to the court that includes all relevant aspects
of the person's medical, psychological, financial,
family, vocational and social condition, and information
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obtained from the person's family members, close
friends, and social worker or principal therapist;
iv) Allows the report provided for in iii) to
recommend for or against giving the conservatee the
right to: obtain a driver's license; enter into
contracts; vote; refuse or consent to medical treatment;
and, possess a firearm;
v) Requires LPS conservatorships to terminate after
one year, but allows the conservator, if he or she
determines that conservatorship is still required, to
petition the court for additional one-year periods;
vi) Allows the initiation of LPS conservatorship
proceedings upon the recommendation of the medical
director of a state hospital, a professional person in
charge of a local mental health facility, a local mental
health director, or the Chief Deputy Secretary for
Juvenile Justice, to the conservatorship investigator,
under specified circumstances;
vii) Requires counties to designate the agency or
agencies to provide conservatorship investigation.
Allows counties to designate that conservatorship
services be provided by the public guardian or agency
providing public guardian services;
viii) Permits the person for whom conservatorship is
sought the right to demand a court or jury trial on the
issue of whether he or she is gravely disabled;
ix) Provides that a person cannot be appointed an LPS
conservator if the person can survive safely with the
help of responsible family, friends, or others who
indicate in writing that they are willing and able to
help provide food, clothing, or shelter; and,
x) Requires the facility treating a person for whom
LPS conservatorship is sought to advise the person that
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he or she may request that information about the time
and place of the conservatorship hearing not be given to
family members, in those circumstances where the
proposed conservator is not a family member.
3)Permits any interested person to petition the court for the
appointment of a "conservator of the person" for a person who
is unable to provide properly for his or her personal needs
for physical health, food, clothing, or shelter. Permits the
appointment of a "conservator of the estate" for a person who
is unable to manage his or her financial resources or resist
fraud or undue influence.
4)Permits a conservator under the Probate Code to place a
conservatee in a locked facility only if there is clear and
convincing evidence of all of the following:
a) The conservatee has dementia;
b) The conservatee lacks capacity to give informed consent,
as specified, to this placement;
c) The conservatee would benefit from this placement; and,
d) The court determines that placement in a locked facility
is the least restrictive placement given the needs of the
conservatee.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal
committee.
COMMENTS:
1)PURPOSE OF THIS BILL. According to the author, probate courts
today are hampered in their ability to ensure proper care and
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treatment of conservatees who suffer from a mental illness,
and there are a significant number of people who are not
getting the care and treatment they need. Under the LPS Act,
the individuals authorized to initiate conservatorship
proceedings do not include probate judges or family members.
The author contends that some counties are becoming more and
more reluctant to initiate necessary conservatorship
proceedings. This becomes an even greater issue with gravely
disabled homeless persons who have no additional help or
anyone to be a proponent for their well-being. They are
continually dependent on other services that have limited
availability for their survival and are unable to receive the
assistance they really need.
The author contends that this creates a gap in treatment
availability, making it harder for individuals who are not
already hospitalized but whose problems stem from mental
illness, alcoholism, or drug abuse, and thus cannot qualify
for treatment under the Probate Code. By allowing probate
judges to initiate LPS conservatorship proceedings, this bill
is intended to remove obstacles to treatment for these
individuals.
2)BACKGROUND.
a) LPS conservatorship process. The LPS Act creates a
series of processes for the involuntary treatment of
individuals who are unwilling or unable to accept necessary
mental health treatment, generally conditional upon the
person being gravely disabled or posing a danger to self or
others. An LPS conservatorship, which lasts for a year
before it must be reinitiated and reapproved, is typically
sought after an individual has received 72-hour evaluation
and treatment and 14-day intensive treatment and continues
to be gravely disabled. The process begins when the
professional staff of the psychiatric facility, after
having evaluated and treated the individual, makes a
recommendation of conservatorship to the county
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conservatorship investigator (typically designated as an
office in the county, such as the Public Guardian's Office
or the Office of the Public Conservator). The county
conservatorship investigator is then required to conduct a
comprehensive investigation and file a petition for
conservatorship only if, after considering all available
alternatives to conservatorship, there are no suitable
alternatives available.
b) Probate conservatorships. Conservatorships governed by
the Probate Code are the most common type of
conservatorship. Probate conservatorships can be
established for adults who are unable to provide properly
for their personal needs for physical health, food,
clothing, or shelter. These conservatees are often elderly
people, but can also be seriously impaired younger people.
A petition for probate conservatorship can be filed by a
spouse, domestic partner, or family member of the proposed
conservatee, any interested state or local agency, the
conservatee himself or herself, or any other interested
person or friend. Current law contains provisions related
to conservatees who are unable to give informed consent for
medical treatment and gives the conservator the exclusive
authority to make health care decisions for the
conservatee, including requiring the conservatee to receive
health care, whether or not the conservatee objects. For
conservatees with dementia, current law allows the
conservator to place the conservatee in a locked nursing or
residential care facility and authorize the administration
of medications to treat dementia, provided that the court
makes specified findings. However, current law does not
contain provisions that allow a probate conservator to
place a conservatee in a locked facility for any reason
other than dementia.
3)SUPPORT. The sponsors of this bill, the Conference of
California Bar Associations, write in support that this bill
will help close a gap in existing law that prevents existing
probate conservatees who have become gravely disabled and/or a
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"danger to themselves or others" from being evaluated for
possible LPS conservatorship because they cannot enter the LPS
process through the traditional (Welfare & Institutions Code
§) "5150" process. This bill would do this by permitting a
court, after considering medical evidence at a hearing which
the proposed conservatee has a right to attend, to order
evaluation for a probate conservatee to determine whether an
LPS conservatorship is appropriate.
4)OPPOSITION. The Coalition for Elder and Dependent Adult
Rights argue in opposition to this bill stating that it opens
yet another door for expensive investigations, assessments,
and many billable hours for conservators and attorneys and
that conservatorships are fraught with abuse and that courts
fail to provide oversight.
5)PREVIOUS LEGISLATION.
a) AB 193 (Maienschein) of 2015, would have permitted a
judge presiding over a probate conservatorship to recommend
to the county investigating officer the establishment of a
LPS conservatorship when there is evidence of grave
disability as a result of a mental disorder or impairment
by chronic alcoholism. AB 193 was vetoed, by the Governor
stating:
"I am returning Assembly Bill 193 without my
signature. This bill would authorize a probate
court to order an investigation for a
Lanterman-Petris-Short conservatorship for an
individual currently under probate
conservatorship. Currently, professionals in
charge of county mental health facilities are
responsible for recommending an investigation for
a Lanterman-Petris-Short conservatorship. This
bill bypasses the clinical expertise of these
professionals and for that reason I can't support
it."
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b) AB 987 (Maienschein) of 2014, which died without a
hearing in the Assembly Health Committee, would have
required the conservatorship investigator to petition for
conservatorship if specified professional staff of a
treatment facility recommends conservatorship, thereby
eliminating the conservatorship investigator's discretion
to not concur with the professional staff's recommendation.
c) SB 364 (Steinberg), Chapter 567, Statutes of 2013,
broadens the types of facilities that can be used for
purposes of a 72-hour treatment and evaluation under the
LPS Act and permits county mental health directors to
develop procedures for the designation and training of
professionals that carry out functions related to 72-hour
holds.
d) AB 1424 (Thomson), Chapter 506, Statutes of 2001, makes
various changes to the LPS Act to: increase the
involvement of family members in commitment hearings for
the mentally ill; require more use of a patient's medical
and psychiatric records in these hearings; and, prohibit
health plans and insurers from using the commitment status
of a mentally ill person to determine eligibility for claim
reimbursement.
e) SB 665 (Petris), Chapter 681, Statutes of 1991,
establishes the right, under the LPS Act, to refuse
antipsychotic medication and establishes hearing procedures
to determine a person's capacity to refuse treatment with
antipsychotic medication.
f) AB 2541 (Bronzan and Mojonnier), Chapter 1286, Statutes
of 1985, authorizes county mental health programs to
initiate services to various target populations, requires
various studies and planning activities, and prohibits
mental health personnel from instructing law enforcement
personnel to take individuals detained for mental health
evaluations to jail solely due to the unavailability of a
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mental health facility bed.
g) SB 677 (Lanterman, Petris, and Short), Chapter 1667,
Statutes of 1967, enacts the LPS Act, which governs
involuntary civil commitment for individuals with mental
illness, with the intent to end inappropriate, indefinite,
and involuntary commitment and provide for prompt
evaluation and treatment.
6)DOUBLE REFERRAL. This bill is double referred, upon passage
of this Committee, it will be referred to the Assembly
Committee on Judiciary.
7)COMMENTS. This bill is substantially similar to AB 193
(Maienschein), which was vetoed by the Governor because it
bypasses the clinical expertise of treating professionals in
recommending an investigation. The Committee may wish to
clarify how the author will address the concerns raised in the
Governor's veto.
REGISTERED SUPPORT / OPPOSITION:
Support
Conference of California Bar Associations (sponsor)
Opposition
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Coalition for Elder & Dependent Adult Rights
California Behavioral Health Directors Association of California
California State Association of Counties
California State Association of State Public Administrators,
Public Guardians,
and Public Conservators
Urban Counties Caucus
Analysis Prepared by:Paula Villescaz / HEALTH / (916) 319-2097