BILL ANALYSIS Ó
AB 1836
Page 1
Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1836
(Maienschein) - As Introduced February 9, 2016
SUBJECT: Mental health: conservatorship hearings
KEY ISSUE: Should a probate court, after hearing medical
evidence and consulting with appropriate experts, be authorized
to recommend a Lanterman-Petris-Short conservatorship for a
probate conservatee who is gravely disabled by mental illness?
SYNOPSIS
California has two types of conservatorship. Probate
conservatorships are established for adults who cannot
adequately care for basic personal needs. Conservatorships
established under the Lanterman-Petris-Short (LPS) Act, on the
other hand, are for persons gravely disabled by mental illness.
LPS conservatorships originate when a director (or other
authorized professional) of a psychiatric facility in which the
prospective conservatee is held makes a recommendation to a
conservatorship investigator. The investigator, if he or she
concurs with the recommendation, may petition a superior court
to create an LPS conservatorship. A critical difference between
a probate conservatorship and an LPS conservatorship is that the
former only allows the conservator to consent to medical
treatment on behalf of the conservatee; the probate conservator
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cannot, with one exception, compel treatment if the conservatee
refuses. The LPS conservator, on the other hand, may, with a
court order, compel psychiatric treatment and placement in a
locked facility for a conservatee who is unwilling to accept
voluntary treatment.
According to the author, many mentally ill persons who might
benefit from an LPS conservatorship and treatment cannot obtain
it because they are not "gravely disabled" or a "danger to self
or other" and, as such, never find their way into a psychiatric
facility where an authorized professional may recommend an LPS
conservatorship. This bill would allow a probate court to also
make a recommendation for an LPS conservatorship to the county
investigator, but only if the person is already under a probate
conservatorship and the court has consulted with psychiatric
experts and heard medical evidence supporting the
recommendation. This bill does not permit the court to
establish an LPS conservatorship on its own motion. The
investigator may still act, or not act, upon that recommendation
in accordance with all of the requirements of existing law.
Last year, the author's virtually identical AB 193 passed out of
this Committee unanimously. Governor Brown vetoed AB 193 for
reasons discussed in the analysis. This year's bill passed out
of the Assembly Health Committee unanimously, as did AB 193 last
year.
SUMMARY: Permits a probate court to recommend an LPS
conservatorship to a county conservatorship investigator, as
specified. Specifically, this bill:
1)Permits a court, after a hearing attended by the proposed
conservatee, unless the conservatee waives presence, and the
proposed conservatee's counsel, to recommend an investigation
by the county officer providing conservatorship
investigations, if the court, in consultation with a licensed
physician or psychologist determines, based on medical and
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other evidence presented to the court showing that a person
for whom a probate conservatorship has been established may be
gravely disabled as a result of mental disorder or chronic
alcoholism and is unwilling to accept, or incapable of
accepting treatment voluntarily. Specifies that if the
probate conservatee cannot afford counsel, the court shall
appoint counsel for him or her.
2)Provides that if the officer providing the conservatorship
investigation concurs with the recommendation of the court, he
or she shall petition the appropriate superior court to
establish the LPS conservatorship.
3)Requires the officer providing the conservatorship
investigation to file a report with the court that made the
conservatorship investigation. Specifies, consistent with
existing law, that the investigator shall investigate all
available alternatives to conservatorship and shall recommend
a conservatorship to the court only if no suitable
alternatives are available.
4)Requires an existing probate conservator, if the
conservatorship is recommended by the court, to disclose any
records or information that may facilitate the investigation
to the county investigator.
EXISTING LAW:
1)Provides that if a person is gravely disabled as a result of
mental illness, or is determined to be a danger to self or
others, then a peace officer, the staff of a designated
treatment facility or crisis team, or other professional
person designated by the county, may, upon probable cause,
take that person into custody for a period of up to 72 hours
for assessment, evaluation, crisis intervention, or placement
in a designated treatment facility. (Welfare & Institutions
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Code Section 5150.)
2)Provides that a person who has been detained for 72 hours,
pursuant to the above, may be detained for an additional 14
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. A person who has been detained for 14 days of
intensive treatment may 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.
(Welfare & Institutions Code Sections 5250, 5270.15.)
3)Allows the professional person in charge of a facility
providing 72-hour, 14-day, or 30-day treatment to recommend an
LPS conservatorship to the county conservatorship investigator
for a person who is gravely disabled and is unwilling or
unable to accept voluntary treatment. Requires the
conservatorship investigator, if he or she concurs with the
recommendation, to petition the superior court to establish an
LPS conservatorship. (Welfare & Institutions Code Sections
5350 et seq.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: California has two types of conservatorships.
Probate conservatorships (established under the Probate Code)
are for adults who cannot adequately care for their basic
personal needs or manage their financial resources. Most
probate conservatees are elderly persons or younger adults with
severe developmental disabilities. A petition for a probate
conservatorship can be filed by any interested person, though
the petitioner is often a spouse or family member, or by a local
social welfare agency that has dealt with the proposed
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conservatee in some capacity. Conservatorships established
under the Lanterman-Petris-Short (LPS) Act, on the other hand,
are for persons who are gravely disabled by mental illness and
who were committed to a psychiatric facility for 72 hours
because they were deemed a threat to self or others. After the
initial 72-hour evaluation in a psychiatric treatment facility
(a so-called "5150" hold) the person may be placed on an
additional 14-day hold. At the end of this 14-day period the
facility director, or some other authorized professional of the
psychiatric facility, may recommend that the county
conservatorship investigator (known variously as the "Public
Guardian" or "County Conservatorship Officer") conduct an
investigation and, if warranted, petition the superior court for
a year-long LPS conservatorship.
A key difference between a probate conservatorship and an LPS
conservatorship is that the probate conservatorship, as a
general rule, only allows the conservator to consent to medical
treatment on behalf of the conservatee. The probate conservator
cannot, however, compel treatment if the conservatee refuses.
One exception to this rule is that, if the conservatee suffers
from dementia or a related condition, the conservator can compel
commitment and appropriate treatment in a locked nursing
facility. (Probate Code Section 2356.5.) The LPS conservator,
on the other hand, may compel treatment for a conservatee who is
unwilling to accept voluntary treatment, including forced
placement in a locked psychiatric facility and, under certain
circumstances, compel administration of psychotropic drugs.
According to the author, many seriously mentally ill persons who
might benefit from an LPS conservatorship cannot obtain one
because their condition does not rise to the level of creating a
"danger to themselves or others," as is required to trigger the
initial "5150" hold in a psychiatric facility, which is, in
turn, a prerequisite to initiate the LPS process. Thus the
probate conservatees with whom the author is concerned may never
be committed to a psychiatric facility where an authorized
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professional will recommend an LPS conservatorship. To account
for this situation, this bill would create an additional means
by which the LPS conservatorship may be recommended to the
county conservatorship investigator. While existing law only
allows the director or other authorized professional of a
psychiatric facility to recommend an LPS conservatorship, this
bill would allow a probate court to make a recommendation to the
county investigator, but only if the candidate for an LPS
conservatorship is already under a probate conservatorship and
the court has heard medical evidence supporting its
recommendation. In addition - and quite significant in light of
opposition claims that this measure will allow the court to
bypass psychiatric experts - the bill would require the court to
consult with a licensed physician or licensed clinical
psychologist who, at a minimum, holds a doctoral degree in
psychology and has had at least five years of clinical
experience in the diagnosis of emotional and mental disorders.
(See Code of Civil Procedure Section 2032.020, cross-referenced
in this bill, and setting forth the requirements for conducting
a mental examination.)
Bill Maintains Existing Due Process. Significantly, this bill
does not permit the court to establish the LPS conservatorship
on its own motion or to command the county investigator to seek
a conservatorship; rather, this bill permits the court to
"recommend" that the county investigator conduct an
conservatorship investigation. It would still be up to the
investigator, if he or she concurs with the court, to act on
that recommendation and petition a superior court for an LPS
conservatorship. Although opponents claim that this bill
"bypasses" the LPS Act and the corresponding due process that it
affords, this does not appear to be the case. The only thing
that this bill does is to allow a probate court (in addition to
the director of a psychiatric facility) to make a
recommendation. As previously noted, the recommendation can
only be made at a hearing in which the probate conservatee is
represented by counsel, where medical testimony supporting
recommendation has been provided, and where the court has
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consulted with a licensed physician or psychologist with
experience in diagnosing and treating mental illness. Once this
recommendation has been made, the county investigator responds
in the same way that he or she would have responded to a
recommendation made by a professional in a psychiatric facility.
The investigator may or may not concur in the recommendation.
If the investigator concurs, then he or she would petition the
court in the same manner provided by existing law, and the court
process for creating an LPS would be exactly the same as it is
now.
As noted in the opposition arguments below, the Coalition for
Elder & Dependent Adult Rights implies that this measure will
lead to more violations of the rights of elders and dependent
adults. However, the problems alleged in CEDAR's letter of
opposition are examples of conservatorships created under
existing law. For example, CEDAR's letter details the
experience of a woman in San Bernardino County who was allegedly
placed under an LPS conservatorship, involuntarily confined, and
forced to take medications. CEDAR further claims that this
person's conservator never filed a plan with the court, as
required by law, and that the county investigator failed to make
an adequate effort to contact the person's family and friends.
However, if these allegations are true, these shortcomings
apparently took place under the existing system and after an
investigation had already been initiated by a professional at a
psychiatric facility - as that is the only method in which an
LPS can be initiated under the existing law. This bill does not
change anything as to the manner in which an investigation is
conducted, the judicial process that follows a county
investigator's recommendation, or the powers of the conservator.
To reiterate, the only thing that this bill does is add an
additional means by which a recommendation for investigation may
be made to a county public guardian or conservatorship officer.
Under existing law, only a director, or other authorized
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professional, of a psychiatric facility can make the
recommendation to the county investigator; under this bill, a
recommendation can also be made by a probate judge, but only
where the person is already under a probate conservatorship;
only where the court has heard medical evidence at a proceeding
attended by the conservatee and the conservatee's attorney; and
only where the court has consulted with a licensed physician or
psychologist who regularly provides psychiatric evaluation and
treatment. Once the recommendation is made, it is then up to
county guardian or conservatorship officer to make an
investigation, including an investigation of "all available
alternatives to conservatorship." If, and only if, the officer
conducting the investigation concludes that an LPS
conservatorship is warranted, and there are no alternatives to
an LPS conservatorship, the officer petitions the superior court
in the patient's county of residence. Nothing in the procedures
subsequent to the recommendation, and none of the corresponding
due process, is altered by this bill.
Bill Covers a Seemingly Narrow Group of People. This bill would
affect what seems to be a relatively small group of persons.
Because the probate court could only recommend the LPS
conservatorship for someone who is already under a probate
conservatorship, this bill will only affect those persons who
satisfy the criteria for both the probate and LPS
conservatorship. This relatively small universe would seem to
mitigate the concerns raised by the opposition that this bill
will greatly increase the costs and workloads of county
investigators, public conservators, and public guardians.
Indeed, one argument raised by the opposition is that this bill
may be unnecessary because probate conservatees with mental
illness will "likely touch the county mental health system and
concurrently may be referred by that system for an LPS
conservatorship." If this is in fact the case, this bill will
not increase the number of persons recommended for a
conservatorship at all; rather, by the opposition's reckoning,
many of the conservatees recommended under this bill would
eventually be recommended through the existing system. At any
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rate, questions of costs and workload will be taken up by the
Assembly Appropriations Committee, where this bill will go
should it pass out of this committee.
Governor's Veto of AB 193: Governor Brown vetoed last year's
nearly identical AB 193 because, the Governor claimed, the bill
"bypasses" the "clinical expertise" provided by the existing
process for appointing LPS conservators. The Committee
respectfully concludes however, as it did last year and the year
before that, that this bill does not bypass the existing process
so much as create an alternative means for reaching that
process. It cannot be stressed enough that this bill does not
allow a judge to appoint an LPS conservator. Rather, it allows
a judge, after hearing relevant medical evidence and in
consultation with experts, to "recommend" an LPS conservatorship
to a Public Guardian. This recommendation is no more, or no
less, than the recommendation made under existing law by
authorized professionals at a psychiatric facility. The Public
Guardian (or similarly titled official with the same authority)
will still have the choice to act, or not act, upon that
recommendation. Nor does the bill bypass "clinical expertise;"
rather, it requires the court to act in consultation with the
same professionals who would make the recommendation pursuant to
existing law.
ARGUMENTS IN SUPPORT: According to the author and sponsor,
"Probate Courts today are hampered in their ability to ensure
proper care and treatment of conservatees who suffer from a
mental illness, and there currently are a significant number of
people who are not getting the care and treatment they need."
In particular, the author and sponsor point to the provision in
existing law providing that "only a professional from the agency
or facility providing intensive treatment or evaluation services
may make a recommendation to the conservatorship investigator
for an LPS conservatorship. If an individual is not receiving
such intensive treatment or evaluation services, no such
recommendation can be made, and no LPS conservatorship may be
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contemplated." Even though many probate conservatees suffer
from a significant mental illness that would justify an LPS
conservatorship, they cannot possibly obtain an LPS
conservatorship unless they are first committed to a psychiatric
facility on a 72-hour hold. The author and sponsor believe that
"AB 1836 would allow 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."
ARGUMENTS IN OPPOSITION: Opponents generally make two arguments
against this bill, one based on potential increases in costs and
workload, and the other based on concerns about the rights of
elders and dependent adults. First, associations representing
the counties, behavioral health directors, and public
conservators and guardians contend that this bill will "compel
the [county] conservatorship officer to conduct a
conservatorship investigation and report back to the Probate
Court their findings. This will increase the number of LPS
conservatorships referrals and increase the county costs." For
example, the Ventura County Board of Supervisors writes that "AB
1836 does not require the [conservatorship officer] to recommend
the Superior Court but it does compel the [conservatorship
officer] to conduct a conservatorship investigation." As such
it will "increase workload, as well as increase costs."
While the groups representing county officials stress the issue
of costs and workload, the Coalition for Elder & Dependent Adult
Rights (CEDAR) contends that AB 1836 will increase opportunities
for abuse and lead to more involuntary confinements and forced
treatments. CEDAR points to the case of a woman in San
Bernardino County that was allegedly ordered into involuntary
confinement, denied visitation, forced to take anti-psychotic
medication, and died while under this "temporary"
conservatorship. Given these existing abuses, CEDAR believes
that now "is not the time to expanding conservatorship or to
expand powers within conservatorship."
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REGISTERED SUPPORT / OPPOSITION:
Support
Conference of California Bar Associations (sponsor)
Opposition
Coalition for Elder and Dependent Adult Abuse
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
Ventura County Board of Supervisors
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Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334