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.
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(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
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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).)
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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.
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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
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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
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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
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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).)
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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
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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.
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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
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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
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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
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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.
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