BILL ANALYSIS Ó
AB 1836
Page 1
(Without Reference to File)
CONCURRENCE IN SENATE AMENDMENTS
AB
1836 (Maienschein)
As Amended August 2, 2016
Majority vote
--------------------------------------------------------------------
|ASSEMBLY: |80-0 |(June 1, 2016) |SENATE: |39-0 |(August 29, |
| | | | | |2016) |
| | | | | | |
| | | | | | |
--------------------------------------------------------------------
Original Committee Reference: HEALTH
SUMMARY: Permits a probate court to recommend a
Lanterman-Petris-Short (LPS) conservatorship for an individual
for whom a conservatorship has been established under the
Probate Code, subject to a hearing attended by the proposed
conservatee or the proposed conservatee's counsel, as specified.
The Senate amendments:
1)Permit a court, in a proceeding regarding a probate
conservatorship and where a conservatorship has already been
AB 1836
Page 2
established, to refer a 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
or incapable of accepting voluntary treatment. The referral
must be done in consultation with a licensed physician or
licensed psychologist, as specified and must be done after an
evidentiary hearing attended by the conservatee takes place.
2)Require, if the conservatee cannot afford counsel, the court
to appoint counsel for them.
3)Require the local mental health system or plan to file a copy
of the assessment with the court that made the referral for
assessment in a proceeding under the Probate Code.
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 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,
known as a "5150 hold".
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
AB 1836
Page 3
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: According to the Senate Appropriations
Committee:
1)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.
2)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
be eligible for state reimbursement as the Commission on State
Mandates (CSM) has determined that activities conducted by
public guardians are prompted only after a county's
discretionary decision to establish the office of the public
AB 1836
Page 4
guardian, as specified.
3)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).
4)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.
5)Court-appointed counsel: Potential increase in county counsel
costs (General Fund*) to provide counsel to conservatees
unable to afford counsel.
*Trial Court Trust Fund
COMMENTS: 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 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 this creates a gap in treatment availability, making it
harder for individuals who are not already hospitalized but
AB 1836
Page 5
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.
California has two types of conservatorships. Probate
conservatorships - established under the Probate Code - are
established for adults who cannot adequately care for basic
personal needs. Most probate conservatee are elderly persons,
but can also include younger adults with severe developmental
disabilities. Conservatorships established under the LPS Act,
on the other hand, are for persons who are gravely disabled by
mental illness or who pose a threat to themselves or others.
LPS conservatorships are created when a psychiatric facility in
which the prospective conservatee is held makes a recommendation
to the county conservatorship investigator, who in turn may
petition a superior court for the conservatorship.
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. 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. 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.
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
AB 1836
Page 6
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 conservatorship investigator. 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.
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 "danger to themselves
or others" from being evaluated for possible LPS conservatorship
because they cannot enter the LPS process through the
traditional (Welfare and Institutions Code Sections) "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.
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.
Analysis Prepared by:
Paula Villescaz / HEALTH / (916) 319-2097 FN:
0004162 0003217
AB 1836
Page 7