BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1836|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 1836
Author: Maienschein (R), et al.
Amended: 8/2/16 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/28/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
ASSEMBLY FLOOR: 80-0, 6/1/16 - See last page for vote
SUBJECT: Mental health: referral of conservatees
SOURCE: Conference of California Bar Associations
DIGEST: This bill authorizes 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.
ANALYSIS:
Existing law:
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1)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.)
2)Provides that a person who has been detained for 72 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.)
3)Allows the professional person in charge of a facility
providing 72-hour, 14-day, or 30-day treatment to recommend an
LPS (Lanterman-Petris-Short) 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.)
4)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.)
5)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
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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).)
6)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
conservatee. (Prob. Code Sec. 2356.5.)
This bill:
1)Authorizes 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.
2)Provides that if the conservatee cannot afford counsel, the
court shall appoint counsel for him or her.
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3)Requires the local mental health system or plan shall file a
copy of the assessment with the court that made the referral
for assessment.
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
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
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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 allows
a probate court, who is overseeing a conservatorship, to refer a
conservatee to a county mental health plan for an LPS
assessment.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
County mental health assessments: Potentially significant
ongoing local costs, potentially state-reimbursable (General
Fund), in the hundreds of thousands of dollars annually for
county mental health departments to conduct LPS assessments of
probate conservatees and file copies of the assessments with
the referring courts.
Public guardians: Potential increase in workload costs to
public guardians (Local Funds) resulting from probate court
recommendations to county conservatorship investigators for
LPS conservatorships based on county mental health
assessments. Any increase in local costs is not estimated to
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be eligible for state reimbursement as the Commission on State
Mandates has determined that activities conducted by public
guardians are prompted only after a county's discretionary
decision to establish the office of the public guardian, as
specified.
LPS conservatorship placements and services: Potentially
significant to major increases in non-reimbursable local costs
(Local Funds) to county behavioral health and mental health
departments for additional LPS placements, services, and
treatment. The magnitude of these costs would be dependent on
the number of new conservatorships and the level of services
and treatment provided to each conservatee, which is unknown
at this time. To the extent a number of LPS conservatees are
Medi-Cal eligible could result in increases in medically
necessary specialty mental health services including but not
limited to crisis residential treatment and medication support
services, resulting in increased Medi-Cal program costs
(Federal Fund/General Fund).
DSH placements: For LPS conservatorship placements into
Department of State Hospital (DSH) facilities, counties would
be responsible for all treatment costs. The counties are also
billed for actual bed usage according to the bed rate
structure developed by DSH.
Court-appointed counsel: Potential increase in county counsel
costs (General Fund*) to provide counsel to conservatees
unable to afford counsel.
*Trial Court Trust Fund
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SUPPORT: (Verified8/12/16)
Conference of California Bar Associations (source)
OPPOSITION: (Verified8/12/16)
Coalition for Elder and Dependent Adult Rights
ARGUMENTS IN SUPPORT: 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."
ARGUMENTS IN OPPOSITION: 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 Coalition for Elder and Dependent Adult Rights
(CEDAR) argue:
There is no need for AB 1836. A mentally ill conservatee has
access to mental health services, the same as any California
resident. Nothing prevents a conservatee from entering an LPS
conservatorship via a 5150 hold. [?]
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Many conservatorships are fraught with abuse. Courts fail to
provide oversight or curb abuse by conservators. CEDAR
documented abuse in every county we have examined, including
San Bernardino, San Diego, Orange, Los Angeles, Monterey,
Santa Clara, Alameda, San Francisco, San Joaquin, Stanislaus,
and Sacramento Counties. Some elder care professionals refer
to San Bernardino County as the elder abuse capitol of the
state, including some that live and work in San Bernardino.
[?]
Costs of investigations and disputes are borne by the
conservatee's estate and the family seeking protection for
their abused loved one. AB 1836 opens yet another door for
expensive investigations, assessments, and many billable hours
for conservators and the attorneys whom are the sponsors of
AB1836. Win or lose, the conservatees estate pays these costs.
ASSEMBLY FLOOR: 80-0, 6/1/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke,
Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley,
Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth
Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto,
Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper,
Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim,
Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,
Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,
O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez,
Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,
Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
8/15/16 20:17:21
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