BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015 - 2016 Regular Session SB 196 (Hancock) Version: April 23, 2015 Hearing Date: May 12, 2015 Fiscal: No Urgency: No TMW SUBJECT Elder abuse: protective orders DESCRIPTION Existing law, the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), authorizes a conservator or a trustee of an elder or dependent adult, an attorney-in-fact of an elder or dependent adult, a person appointed as a guardian ad litem for an elder or dependent adult, or another person legally authorized to petition the court for issuance of a protective order on behalf of an elder or dependent adult who has suffered physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. This bill, as of July 1, 2016, would additionally allow a petition to be brought by a county adult protective services agency on behalf of the elder or dependent adult if there is reasonable cause to believe the elder or dependent adult is in imminent danger of becoming or has become the victim of a crime, as specified, or who has suffered abuse, as defined, and has an impaired ability to appreciate and understand the circumstances that place the elder or dependent adult at risk of harm. This bill would also allow the county adult protective services to file that petition if the elder or dependent adult has provided written authorization for the county adult protective services to act on his or her behalf. SB 196 (Hancock) Page 2 of ? (This analysis reflects author's amendments to be offered in Committee.) BACKGROUND The California Legislature, in recognition of the need of special protection for California's vulnerable elder and dependent adult population, has enacted significant criminal and civil protections for elders and dependent adults. In 1983, the Legislature determined that crimes against dependent adults deserved special consideration and established enhanced criminal penalties against individuals who perpetrate crimes, including great bodily harm, infliction of pain, endangerment, and false imprisonment, against dependent adults. In 1986, the Legislature extended these protections to elders. In 1992, the Legislature enacted SB 679 (Mello, Ch. 774, Stats. 1991), which established the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). EADACPA provides enhanced civil remedies to ensure adequate representation of and protection for victims of elder or dependent adult physical and financial abuse and neglect. These laws authorize courts to issue protective orders against persons engaging in violent, threatening, abusive, or harassing conduct of an elder or dependent adult. EADACPA authorizes a petition for a protective order to be filed on behalf of the elder or dependent adult by a conservator, trustee, attorney-in-fact, guardian ad litem, or other person legally authorized to act on behalf of the elder or dependent adult. This bill would additionally authorize a county adult protective services agency to file a petition for a protective order on behalf of the elder or dependent adult, as specified. CHANGES TO EXISTING LAW Existing law generally authorizes courts to issue protective orders in proceedings involving civil harassment, workplace and postsecondary school site violence, domestic violence, juvenile law, and elder or dependent adult abuse. (Code Civ. Proc. Secs. 527.6, 527.8, 527.85; Fam. Code Sec. 6200. et seq.; Welf. & Inst. Code Secs. 213.5, 15657.03.) Existing law , the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), generally provides civil protections SB 196 (Hancock) Page 3 of ? and remedies for victims of elder and dependent adult abuse and neglect. (Welf. & Inst. Code Sec. 15600 et seq.) Existing law authorizes a petition to be brought on behalf of an abused elder or dependent adult by a conservator or a trustee of the elder or dependent adult, an attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney, a person appointed as a guardian ad litem for the elder or dependent adult, or other person legally authorized to seek a protective order, as defined. (Welf. & Inst. Code Sec. 15657.03(a)(2).) Existing law provides that, upon filing a petition for protective orders under EADACPA, the petitioner may obtain a temporary restraining order, as specified, except to the extent a rule is inconsistent. However, the court may issue an ex parte order excluding a party from the petitioner's residence or dwelling only on a showing of all of the following: facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises; that the party to be excluded has assaulted or threatens to assault the petitioner, other named family or household member of the petitioner, or a conservator of the petitioner; and that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or a conservator of the petitioner. (Welf. & Inst. Code Sec. 15610.03(d).) Existing law authorizes the court to grant or deny a request for the issuance of a temporary restraining order without notice on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be granted or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court. (Welf. & Inst. Code Sec. 15610.03(e).) Existing law requires, within 21 days, or, if good cause appears to the court, 25 days, from the date that a request for a temporary restraining order is granted or denied, a hearing to be held on the petition. If no request for temporary orders is made, the hearing shall be held within 21 days, or, if good cause appears to the court, 25 days, from the date that the petition is filed. (Welf. & Inst. Code Sec. 15610.03(f).) SB 196 (Hancock) Page 4 of ? Existing law authorizes the respondent to file a response that explains or denies the alleged abuse. (Welf. & Inst. Code Sec. 15610.03(g).) Existing law authorizes the court, upon notice and a hearing, to issue protective orders, as specified, and authorizes the court, after notice and hearing, to issue an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner. (Welf. & Inst. Code Sec. 15610.03(h).) Existing law provides that, in the discretion of the court, an order issued after notice and a hearing may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. The request for renewal may be brought at any time within the three months before the expiration of the order. (Welf. & Inst. Code Sec. 15610.03(i)(1).) Existing law provides the following definitions: "elder" means any person residing in California, 65 years of age or older (Welf. & Inst. Code Sec. 15610.27); "dependent adult" means any person between the ages of 18 and 64 years who resides in California and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age (Welf. & Inst. Code Sec. 15610.23); "abuse of an elder or dependent adult" means either: (a) the physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; or (b) the deprivation by a care custodian of goods or services that are necessary to avoid harm or mental suffering (Welf. & Inst. SB 196 (Hancock) Page 5 of ? Code Sec. 15610.07); "physical abuse" means assault, battery, assault with a deadly weapon, unreasonable physical constraint, or prolonged or continual deprivation of food or water, sexual assault, or use of a physical or chemical restraint or psychotropic medication (Welf. & Inst. Code Sec. 15610.63); "isolation" means any of the following: o acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls; o telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons; o false imprisonment, as defined; or o physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors (Welf. & Inst. Code Sec. 15610.43(a)); and "financial abuse" of an elder or dependent adult occurs when a person or entity does any of the following: o takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both; o assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both; or o takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence (Welf. & Inst. Code Sec. 15610.30). Existing law makes it a crime for any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the SB 196 (Hancock) Page 6 of ? care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered. (Pen. Code Sec. 368.) Existing law provides that if an elder or dependent adult abuse victim is so incapacitated that he or she cannot legally give or deny consent to protective services, a petition for temporary conservatorship or guardianship may be initiated, as specified. (Welf. & Inst. Code Sec. 15636(b).) Existing law requires the public guardian to apply for appointment as guardian or conservator of the person, the estate, or the person and estate, if there is an imminent threat to the person's health or safety or the person's estate. (Prob. Code Sec. 2920.) This bill would authorize a county adult protective services agency to bring a petition for a protective order on behalf of an elder or dependent adult in any of the following circumstances: if there is reasonable cause to believe an elder or dependent adult is in imminent danger of becoming, or has become the victim of a crime, as specified, and has an impaired ability to appreciate and understand the circumstances that place him or her at risk of harm; if the elder or dependent adult has suffered abuse, as defined, and has an impaired ability to appreciate and understand the circumstances that place him or her at risk of harm; or if the elder or dependent adult has provided written authorization to a county adult protective services agency to act on his or her behalf. This bill would require the county adult protective services agency to also make a referral regarding temporary conservatorship of the elder or dependent adult to the public guardian, as specified, prior to or concurrent with the filing of the petition. This bill would make a county adult protective services agency subject to such confidentiality restrictions as otherwise apply to its activities under law and authorize the county adult protective services agency to only disclose such facts as SB 196 (Hancock) Page 7 of ? necessary to establish reasonable cause for the filing of the petition and as may be requested by the court in determining whether to issue a protective order. This bill , in a proceeding brought by a county adult protective services agency, would require the elder or dependent adult on whose behalf the petition has been filed to receive, at least five days before the hearing, a copy of the petition, a notice of the hearing, and any declarations submitted in support of the petition, and authorize the court, on motion of the petitioner or on its own motion, to shorten the time for provision of this information to the elder or dependent adult. This bill would require the adult protective services agency to make reasonable efforts to assist the elder or dependent adult to attend the hearing and provide testimony to the court, if he or she wishes to do so, and, if the elder or dependent adult does not attend the hearing, the agency or public conservator would be required to provide information to the court at the hearing regarding the reasons why the elder or dependent adult is not in attendance. This bill , upon the filing of a petition for a protective order and upon issuance of an order granting the petition, would require the county adult protective services agency to take all reasonable steps, as specified, to provide for the safety of the elder or dependent adult, which may include, but not be limited to, locating alternative accommodations for the elder or dependent adult if needed. This bill would revise the definition of "abuse of an elder or dependent adult" to clarify that financial abuse does not require a showing of resulting physical harm or pain or mental suffering. This bill would become operative on July 1, 2016, and require the Judicial Council to develop forms, instructions, and rules to implement the bill. COMMENT 1. Stated need for the bill The author writes: Current law authorizes certain entities to file for SB 196 (Hancock) Page 8 of ? restraining orders on an individual's behalf, but it is not clear whether [adult protective services (APS)] staff are included in this authority, even if a conservatorship is being sought for the individual who is the subject of the abuse. Until a criminal case is filed, or a temporary conservatorship is in place, county agencies must rely on protective orders that are not adapted to the unique issues of adult abuse. Those protective orders include an Emergency Protective Order (EPO) or a restraining order (e.g.[, temporary restraining order (TRO), or permanent restraining order (PRO)]. However, those orders are mainly designed to prevent physical harm in domestic violence or physical abuse. And in the case of restraining orders, it presumes the victim has the ability to initiate the request. County APS agencies are not expressly identified in code as entities that may file these protective orders, even if a conservatorship is being sought for the individual who is the subject of the abuse. SB 196 would address this gap in law. 2. Increasing elder and dependent adult protections Existing law, the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), authorizes certain persons to file a petition for protective orders on behalf of an elder or dependent adult, including a conservator or trustee, an attorney-in-fact, a person appointed as a guardian ad litem, or other person legally authorized to seek the order. (Welf. & Inst. Code Sec. 15657.03.) This bill would, commencing July 1, 2016, additionally authorize a county adult protective services agency to file a petition for a protective order on behalf of an elder or dependent adult, as specified. EADACPA was established to provide enhanced protections for elders and dependent adults and requires APS agencies, local long-term care ombudsman programs, and local law enforcement agencies to receive referrals or complaints from public or private agencies, from any mandated reporter, as specified, or from any other source having reasonable cause to know that the welfare of an elder or dependent adult is endangered. (Welf. & Inst. Code Sec. 15600 et seq.) EADACPA also requires these entities to take any actions considered necessary to protect the elder or dependent adult and correct the situation and ensure the individual's safety. (Welf. & Inst. Code Sec. 15600(i).) SB 196 (Hancock) Page 9 of ? EADACPA currently authorizes APS to make a referral to the public guardian for a review of whether the elder or dependent adult, who has been identified as being unable to provide for his or her own personal or financial well-being, may need a conservatorship established so that the public guardian, who would be appointed to legally represent the elder or dependent adult, could assume more responsibilities for the care and well-being of the individual. (Welf. & Inst. Code Secs. 15633.5, 15636(b).) Existing law authorizes the public guardian, in the event there is no other person to act on behalf of the elder, to initiate temporary conservatorship proceedings to help the elder or dependent adult, and specifically requires the public guardian to file for a temporary conservatorship if there is an imminent threat to the person's health or safety or the person's estate. (Prob. Code Sec. 2920.) This bill, sponsored by the County Welfare Directors Association (CWDA) (which represents county APS agencies), seeks to provide an additional way for APS to protect elders and dependent adults from imminent or continued physical or financial abuse. According to CWDA, the investigation process by APS and subsequent conservatorship filing by the public guardian may take several weeks, during which the elder or dependent adult may continue to be victimized by a third party who is alleged to be physically or financially abusing the elder or dependent adult. The author asserts that this bill will enable the county APS agency to intervene to stop the abuse or neglect that is occurring while a conservatorship for the elder or dependent adult is under consideration by the public guardian, protecting the health and well-being of the elder or dependent adult as well as, in the case of financial abuse, protecting their remaining assets. The author points out that the bill provides for narrow instances when APS could file the petition - the protective order could only be sought when the elder or dependent adult is in imminent danger of becoming or has become the victim of a crime, as specified or has suffered physical or financial abuse and the victim has an impaired ability to appreciate and understand the circumstances that place him or her at risk of harm. The author notes that, unlike the Child Protective Services program, where county agencies have statutory authority to intervene on behalf of children who are being abused or neglected, county APS agencies generally do not have the authority to require a victim to accept their services if the SB 196 (Hancock) Page 10 of ? person is competent or not incapacitated and refuses the program's assistance. Accordingly, the bill would authorize APS to file the petition on behalf of the elder or dependent adult if he or she has given written authorization for APS to file for a protective order. In cases where the elder or dependent adult is aware he or she needs help to prohibit another person from harming them but the elder or dependent adult is unable to fill out the required documents and file them with the court, APS could perform this role on his or her behalf. In this way, the author contends, the bill is structured in a way that preserves the current voluntary nature of the APS program. The author also argues that many elder abuse cases are not the result of domestic violence or physical abuse, but are instances of financial abuse. The author reports that situations have occurred where bank accounts and even homes are stolen out from under incapacitated or hospitalized elders and dependent adults, and the victim is often unable to advocate on their behalf but has not yet been conserved. In these cases, the author asserts that time can be of the essence in protecting assets and stopping the abuse. Lack of access to financial information and financial protective intervention measures are among the biggest existing holes in the tools for APS agencies. This bill, by allowing APS to file for a protective order on the victim's behalf while a temporary conservatorship is being reviewed, would provide significant and immediate protection for these vulnerable citizens. It is important to note that the temporary conservatorship referral would not apply if the elder or dependent adult provided written authorization to file for the protective order. Further, as with any protective order request, a court would review and approve or deny the request in order to provide the necessary check and balance. Concern has been raised that the bill would require a finding that the elder or dependent adult lacked capacity, which is typically litigated in the probate courts, not in civil courts where most of these types of protective orders are issued. As discussed in Comment 5, the author offers an amendment to remove the requirement that the elder or dependent adult lacked capacity, and, instead, would require reasonable cause that the elder or dependent adult is either in imminent danger or has been the victim of abuse. The author's amendments would also require APS to ensure the elder's or dependent adult's safety during and after the protective order process, which is consistent with the existing authority of APS under EADACPA. SB 196 (Hancock) Page 11 of ? 3. Due process protections This bill would require APS to provide a copy of the petition, a notice of the hearing, and any supportive declarations to the elder or dependent adult at least 5 days before the hearing, and to make reasonable efforts to assist the elder or dependent adult to attend the hearing and provide testimony to the court. Existing law does not require these due process protections because only individuals who have legal authority to represent the elder or dependent adult currently have the ability to file the protective order petition. By adding additional requirements for the elder or dependent adult to receive a copy of the petition and notice of the hearing, this bill provides the elder or dependent adult with the ability to attend the hearing on his or her own behalf. Further, the bill would require APS to make reasonable efforts to help the elder or dependent adult attend the hearing and testify on his or her own behalf. With these additional due process protections, the elder or dependent adult for whom protection is sought will have sufficient information and opportunity to address the court with respect to the need to order a third person to refrain from contacting the elder or dependent adult. 4. Confidentiality protections Existing law provides confidentiality protections for elders and dependent adults who are the subject of an abuse investigation and limit the disclosure of information contained in investigation reports to specified agencies or individuals, including adult protective services and the probate courts. (Welf. & Inst. Code Sec. 15633 et seq.) In order to properly maintain the confidentiality of the elder or dependent adult during the process of seeking a protective order on behalf of the elder or dependent adult, this bill would authorize APS to disclose only the facts necessary to establish reasonable cause for filing the petition and as may be requested by the court. 5. Author's amendments In order to address concerns regarding the ability of a civil court, reviewing the petition for protective order, to make capacity determinations otherwise reviewed by probate courts, confidentiality, and elder or dependent adult protection during or following the protective order procedure, the author offers SB 196 (Hancock) Page 12 of ? amendments in Committee to: remove the requirement for the elder or dependent adult to lack capacity and instead apply a reasonable cause standard that the elder or dependent adult is in imminent danger of becoming a crime victim or has become an abuse victim, and the elder or dependent adult has an impaired ability to appreciate and understand the circumstances that place him or her at risk of harm; authorize APS to disclose information necessary to establish the facts for issuance of the protective order, subject to confidentiality restrictions that otherwise apply to APS; and require APS to take all reasonable steps to ensure the safety of the elder or dependent adult to the extent APS is already authorized to take specified actions to ensure the safety and welfare of the elder or dependent adult. 6. Opposition's concerns California Advocates for Nursing Home Reform (CANHR), in opposition, argues that this bill permits county workers to base its action on its own, undefined determination of the elder or dependent adult's incapacity, and would only allow restraining orders to be pursued if a conservatorship is being sought, but that is also undefined. CANHR is concerned that no information would be provided to the elder or dependent adult to advise him or her what to do after receiving notice of the petition. CANHR also contends that county workers have many tools under existing law to help elders and dependent adults, one of which, seeking appointment as guardian ad litem, would accomplish the same purpose as this bill. Further, CANHR contends this bill would not protect an elder or dependent adult from financial abuse when contact with the victim is usually immaterial to the ability to victimize - a restraining order will not prevent an abuser from transferring property, going to a bank, or manipulating accounts on-line to their advantage. In response, the author notes that several amendments to be offered in Committee would remove much of CANHR's concerns. Support : American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO; California Association for Health Services at Home; California Association of Public Authorities for IHSS; California Commission on Aging; California Communities United Institute; California District Attorneys Association; California School Employees Association, AFL-CIO; Congress of SB 196 (Hancock) Page 13 of ? California Seniors; LIUNA Locals 777 and 792; National Association of Social Workers - California Chapter; Urban Counties Caucus Opposition : California Advocates for Nursing Home Reform HISTORY Source : County Welfare Directors Association of California Related Pending Legislation : AB 1081 (Quirk, 2015), among other things, would authorize any party to an elder or dependent adult protective order proceeding to request a continuance of a hearing, as specified, and automatically extend a temporary protective order until the end of the continuance of the hearing. AB 1081 is currently on the Assembly Floor. AB 494 (Maienschein, 2015), among other things, would authorize a court, in concert with the issuance of an elder or dependent adult protective order, to grant the petitioner exclusive care, possession, or control of an animal owned, possessed, leased, kept, or held by the petitioner, or residing in the residence or household of the petitioner and order the respondent to stay away from the animal, as specified. AB 194 is pending assignment in the Senate Rules Committee. Prior Legislation : AB 2034 (Gatto, 2014) would have authorized a first-degree relative to file a petition for a visitation order to enjoin a respondent from keeping an elder or dependent adult (proposed visitee) in isolation from contact with the petitioner. AB 2034 died in the Senate Rules Committee. AB 454 (Silva, Chapter 101, Statutes of 2011) added due process procedures regarding termination or modification of a protective order issued under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). AB 1596 (Hayashi, Chapter 572, Statutes of 2009) enacted recommendations from the Judicial Council's Protective Orders Working Group for statutory procedural changes to the protective orders statutes and provided clarity and consistency for SB 196 (Hancock) Page 14 of ? requests for protective orders. AB 225 (Beall, Chapter 480, Statutes of 2008) provided that an elder or dependent adult who petitions for a protective order under the EADACPA is not required to pay a fee for law enforcement to serve an order issued by the court. SB 679 (Mello, Chapter 774, Statutes of 1991) See Background. **************