BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1836 (Maienschein)
Version: June 15, 2016
Hearing Date: June 28, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
Mental health: referral of conservatees
DESCRIPTION
This bill would authorize the probate court, after an
evidentiary hearing attended by a probate conservatee and his or
her counsel, to refer a conservatee to the county mental health
system or for an assessment to determine whether the conservatee
has a treatable mental illness, or is gravely disabled and
unwilling or unable to accept treatment voluntarily.
(This analysis reflects amendments to be taken in Committee.)
BACKGROUND
The Probate Code sets forth a statutory scheme governing the
appointment of conservators for adults who cannot take care of
themselves or their finances. These conservatees are often
elderly people, but can also be younger people who have been
seriously impaired. A conservator of the person is appointed to
make decisions about personal matters for the conservatee,
including decisions about food, clothing, and residence, and a
conservator of the estate is responsible for handling the
financial affairs of the conservatee. A conservator generally
has the power to collect the conservatee's assets, pay bills,
and make investments, but must seek court supervision for major
transactions, such as the purchase or sale of real property,
borrowing money, and gifting of assets.
The Lanterman-Petris-Short (LPS) Act, additionally provides a
statutory process under which gravely disabled individuals can
be involuntarily held and treated in a mental health facility in
a manner that safeguards their constitutional rights. A person
is "gravely disabled" if he or she, as a result of a metal
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disorder, is unable to provide for his or her basic personal
needs for food, clothing, or shelter. The LPS Act was intended
to balance the goals of maintaining the constitutional right to
personal liberty and choice in mental health treatment, with the
goal of safety when an individual may be a danger to oneself or
others. The LPS Act authorizes the superior court to appoint a
conservator of a gravely disabled person, so that he or she may
receive individualized treatment, supervision, and placement.
Under the LPS Act, anyone who, as a result of a mental health
disorder, is either a danger to self or to others or is gravely
disabled can be involuntarily hospitalized in a facility for 72
hours of evaluation and treatment without court intervention. In
the case of individuals who are a danger to themselves or
others, a peace officer, professional person in charge of an
evaluation facility, staff member, or other specified
professional who has probable cause, may take the person into
custody. If there is probable cause to believe that a person is
gravely disabled, any person may make the application to the
responsible county agency or person. If specified criteria are
met, the initial 72-hour hold may be extended up to 30 days.
Upon the recommendation of the professional person in charge of
the evaluation, a conservatorship investigator must investigate
all available alternatives to an LPS conservatorship, and
recommend to the superior court, for or against conservatorship.
As a means of bringing individuals under probate
conservatorships who have become gravely disabled or a danger to
self or others to the attention of the county, this bill would
allow a probate court, who is overseeing a conservatorship, to
refer a conservatee to a county mental health plan for an LPS
assessment.
CHANGES TO EXISTING LAW
Existing law provides that if a person is gravely disabled as a
result of mental illness, or a danger to self or others, then a
peace officer, 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. (Welf. & Inst. Code Sec. 5150.)
Existing law provides that a person who has been detained for 72
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hours may be detained for up to 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. Existing law further
provides that a person who has been detained for 14 days of
intensive treatment may be detained for up to 30 additional days
of intensive treatment if the person remains gravely disabled
and is unwilling or unable to voluntarily accept treatment.
(Welf. & Inst. Code Secs. 5250, 5270.15.)
Existing law 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 voluntarily accept treatment, and
requires the conservatorship investigator, if he or she concurs
with the recommendation, to petition the superior court to
establish an LPS conservatorship. (Welf. & Inst. Code Sec. 5350
et seq.)
Existing law gives the LPS conservator the right, if specified
in the court order, to require the conservatee to receive
treatment related specifically to remedying or preventing the
recurrence of the conservatee's being gravely disabled. (Welf.
& Inst. Code Secs. 5358, 5358.2.)
Existing law 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, and
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. (Prob. Code Sec. 1801
(a)-(b).)
Existing law 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:
the conservatee has dementia;
the conservatee lacks capacity to give informed consent, as
specified, to this placement;
the conservatee would benefit from this placement; and
the court determines that placement in a locked facility is
the least restrictive placement given the needs of the
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conservatee. (Prob. Code Sec. 2356.5.)
This bill would authorize the probate court, in consultation
with a licensed physician or psychologist, to refer a
conservatee, after an evidentiary hearing attended by the
conservatee, unless the conservatee waives presence, and the
conservatee's counsel, to refer the conservatee, for an
assessment by the local mental health system 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.
This bill would provide that if the conservatee cannot afford
counsel, the court shall appoint counsel for him or her.
This bill would require the local mental health system or plan
shall file a copy of the assessment with the court that made the
referral for assessment.
COMMENT
1.Stated need for the bill
According to the author:
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. Under the LPS Act, probate judges and family members
are precluded from recommending a conservatorship. Different
counties are becoming more and more reluctant to initiate the
necessary conservatorship proceedings as they hold the
singular "key" that unlocks the door for conservatorship. It
can rapidly become difficult for the family to provide any
support or assistance because the gravely disabled person
refuses to be medication compliant and will not accept
treatment and the "treatment" for the gravely disabled person
becomes a revolving door through the mental health system.
This becomes an even greater issue with gravely disabled
homeless persons who have no additional help or anyone to be a
proponent for their wellbeing. They are continually dependent
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on other services that have limited availability for their
survival and are unable to receive the assistance they really
need.
2.Due process rights of potential LPS conservatees
This bill would authorize a probate court to refer current
probate conservatee for an LPS assessment by the local mental
health system. The recommendation must be made at an evidentiary
hearing in which the probate conservatee is represented by
counsel, and where the court has consulted with a medical or
psychological professional. This bill would not authorize a
court to establish the LPS conservatorship on its own motion.
Rather, it would allow the court to refer a conservatee to the
county conservatorship investigator. It would then be
determined by the county investigator whether to act on that
referral and petition a superior court for an LPS
conservatorship.
Opponents argue that this bill "circumvents the legal process"
under the LPS Act and infringes on potential LPS conservatees'
due process rights. In opposition, the California State
Association of Public Administrators, Public Guardians, and
Public Conservators write:
The law mandates that a county investigator must explore all
possible alternatives to LPS conservatorship. Because an LPS
Conservatorship severely restricts a person's civil rights, it
is established only as a last resort. Ultimately, if the
investigating officer believes an LPS conservatorship is
appropriate, they petition the court for conservatorship. The
court uses the investigation report as the basis to order or
deny an LPS conservatorship. An LPS conservatorship cannot be
established unless the investigating officer and the court
agree, thereby creating a "checks and balance" system.
Staff notes that by allowing a Probate court to refer a
conservatee to the local mental health system for an assessment,
this bill would create an avenue to have an LPS investigation
without a potential conservatee being held under a 3, 14, or 30
day hold. (See Background.) Thus, the need to file a writ of
habeas corpus may not be present. Persons placed in a temporary
LPS conservatorship, which can last anywhere from 30 days to 6
months, may file a writ at any time, and those in a permanent
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LPS conservatorship (lasting 1 year and renewable) may instead
request a re-hearing on the conservatorship every six months. In
addition, because this bill requires that a potential LPS
conservatee is represented by counsel, his or her due process
rights will arguably be protected.
The Conference of California Bar Associations, sponsor, argues
that "AB 1836 will help close a gap in existing law that
prevents existing probate conservatees who have become gravely
disabled and/or a "danger to themselves or others" from being
evaluated for possible LPS conservatorship because they cannot
enter the LPS process through the traditional "5150" process.
AB 1836 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 an evaluation for a probate
conservatee to determine whether an LPS conservatorship is
appropriate."
3.Distinctions between this bill and last year's AB 193
As introduced, this bill was substantially similar to AB 193
(Maienschein, 2015), which was vetoed by Governor Brown and
opposed by a number of groups including the California State
Association of Counties, the County Behavioral Health Directors
Association of California, and the Urban Counties Caucus. That
bill would have authorized the probate court to "recommend" an
LPS conservatorship, and order the county officer providing
conservatorship to conduct an investigation. The county officer
would have also been required, if the investigation supported
the recommendation of the court, to petition the appropriate
superior court to establish the LPS conservatorship.
In contrast, the most recent amendments to this bill would
instead allow a court to refer a probate conservatee to the
county mental health system for an assessment. The bill would
not require an assessment or require the county to recommend an
LPS conservatorship. It would instead arguably bring
individuals to the attention of the county who might not
otherwise be noticed, because of the support system they
currently have in place. The sponsor argues that this bill "may
actually result in a reduction in mental health costs because
the patient will be triaged earlier than later (before
additional harm to himself and others and involvement of law
enforcement), and it addresses a population that already has a
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support system in place through the probate conservatorship that
will continue to be available. It provides a means whereby
individuals who are current probate conservatees can obtain
immediate treatment that they almost certainly would receive
eventually - but only after many unnecessary intervening
expenditures for law enforcement, incarceration, and treatment."
4.Author's technical amendments
The author offers the following amendment: Replace
"evaluation" with "assessment" throughout the bill.
Support : None Known
Opposition : Coalition for Elder and Dependent Adult Abuse;
California State Association of State Public Administrators,
Public Guardians, and Public Conservators; Urban Counties
Caucus; Ventura County Board of Supervisors
HISTORY
Source : Conference of California Bar Associations
Related Pending Legislation : None Known
Prior Legislation :
AB 193 (Maienschein, 2015) was substantially similar to this
bill. AB 193 was vetoed by Governor Brown who argued that the
bill bypasses the clinical expertise of the professionals in
charge of county mental health facilities.
SB 364 (Steinberg, Ch. 567, Stats. 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.
SB 677 (Lanterman-Petris, Short, Ch. 1667, Stats. 1967),
expressed Legislative intent to end the inappropriate,
indefinite, and involuntary commitment of persons with mental
health disorders and provide for the prompt evaluation and
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treatment of persons with serious mental disorders.
Prior Vote :
Assembly Floor (Ayes 80, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Health Committee (Ayes 15, Noes 0)
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