BILL ANALYSIS Ó
SB 196
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Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Cheryl Brown, Chair
SB
196 (Hancock) - As Amended June 25, 2015
SENATE VOTE: 38-0
SUBJECT: Elder and dependent adult abuse: protective orders.
SUMMARY: SB 196 grants authority to Adult Protective Services
(APS) program representatives to request protective orders for
elder or dependent adults who have been physically abused,
financially abused, or both; modernizes the definition of "abuse
of an elder or dependent adult" to include financial abuse; and
provides for delayed implementation six months after the bill
goes into effect. Specifically, this bill:
1)Clarifies and streamlines the current definition of "elder and
dependent adult abuse," which currently includes a general
reference to "financial abuse," by consolidating definitions,
and sunsetting the current definition on July 1, 2016.
2)Beginning on July 1, 2016, grants authority to APS program
representatives to seek protective orders on behalf of elder
or dependent adults who have experienced abuse, under two
specific situations:
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a. If an elder or dependent adult has been abused and has
an impairment which may compromise the elder or dependent
adult's ability to understand and appreciate the abuse
which they experienced.
b. If the elder or dependent adult has granted authority to
the APS program to act on their behalf to assist in their
protection.
1)Requires the APS program to refer the case to the public
guardian, if not already referred.
EXISTING LAW:
1)Establishes the Elder and Dependent Adult Civil Protections
Act (EADACPA) which recognizes:
a. That elders and dependent adults may be subjected to
abuse, neglect, or abandonment and that this state has a
responsibility to protect these persons;
b. That most elders and dependent adults who are at the
greatest risk of abuse, neglect, or abandonment by their
families or caretakers suffer physical impairments and
other poor health that place them in a dependent and
vulnerable position;
c. That factors which contribute to abuse, neglect, or
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abandonment of elders and dependent adults are economic
instability of the family, resentment of caretaker
responsibilities, stress on the caretaker, and abuse by the
caretaker of drugs or alcohol;
d. That this state shall foster and promote community
services for the economic, social, and personal well-being
of its citizens in order to protect those persons described
in this section;
e. That uniform state guidelines, which specify when county
adult protective service agencies are to investigate
allegations of abuse of elders and dependent adults and the
appropriate role of local law enforcement is necessary in
order to ensure that a minimum level of protection is
provided to elders and dependent adults in each county;
and,
f. That infirm elderly persons and dependent adults are a
disadvantaged class, that cases of abuse of these persons
are seldom prosecuted as criminal matters, and few civil
cases are brought in connection with this abuse due to
problems of proof, court delays, and the lack of incentives
to prosecute these suits.
2)Defines "Elder and Dependent Adult Abuse" within the Elder and
Dependent Adult Civil Protections Act (Chapter 11 or Part 3 of
Division 9 of the Welfare and Institutions Code) as either:
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a. Physical abuse, neglect, financial abuse, abandonment,
isolation, abduction, or other treatment with resulting
physical harm or pain or mental suffering; and,
b. The deprivation by a care custodian of goods or services
that are necessary to avoid physical harm or mental
suffering.
3)Provides for a public guardian or public conservator to take
possession or control of real or personal property of a person
that is subject to loss, injury, waste, or misappropriation,
and, may deny use of, access to, or prohibit residency in, the
real or personal property, as specified.
FISCAL EFFECT: This measure has not been analyzed by a fiscal
committee. SB 196 was not subject to review by the Senate
Committee on Appropriations pursuant to Senate Rule 28.8.
COMMENTS:
1)Author's Statement: "SB 196 was developed to provide a narrow
ability for county Adult Protective Services agencies to file
a petition for a protective order when a referral for
conservatorship has been made, but there is a need to petition
the court for an order in the meantime to step-in and stop
abuse in the most egregious cases while the conservatorship
process, which can be lengthy, is decided.
"Until a criminal case is filed, or a temporary
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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. TRO, 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.
"Many elder abuse cases are not the result of domestic
violence or physical abuse, but are instances of financial
abuse. The victim is often unable to advocate on their behalf
but has not yet been conserved. In these cases, 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. Situations have
occurred where bank accounts and even homes are stolen out
from under incapacitated or hospitalized elders and dependent
adults.
"Cases of elder and dependent adult abuse are often complex.
In many instances, it takes law enforcement officers and
detectives several days or weeks to gather adequate evidence
to file a case with the District Attorney's office or a
prosecutor. While the process of charges being filed and a
criminal case initiated is being worked out, protective orders
need to be available to prevent further abuse.
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"Current law authorizes that a protective restraining order
may be initiated by the victim or a petition may 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
another person "legally authorized to seek such
relief."
"There is question regarding who qualifies under "another
person legally authorized to seek such relief". In fact,
Counties realized that they weren't sure, and it was being
inconsistently interpreted, whether Adult Protective Services
agencies are included.
"While it was recognized that the code needed to be clarified,
it was also understood that it was not appropriate, nor did
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the counties want, to give Adult Protective Services this
blanket authorization, especially when an elder or dependent
adult simply does not want to seek the order. APS is a
voluntary program today, and APS agencies would only step in
under
SB 196 in very narrow circumstances, preserving the voluntary
nature of the program.
"SB 196 only applies when someone either asks for assistance
or when the APS agency is confident enough that the individual
has an impaired ability to understand the harm he or she is at
risk of suffering, and a referral has been made to the public
guardian for a conservatorship process to begin. These checks
and balances guard against over-use of this provision."
1)EADACPA: The Elder and Dependent Adult Civil Protection Act
was established when the Legislature recognized that elders
and dependent adults may be subjected to abuse, neglect, or
abandonment and that the state has a responsibility to protect
them. In doing so, the Legislature statutorily declared a
desire to direct special attention to the needs and problems
of elder and dependent adults, recognizing that they
constitute a significant and identifiable segment of the
population and that they are more subject to risks of abuse,
neglect, and abandonment, and that mental and verbal
limitations, physical impairments, place them in a dependent
and vulnerable position, vulnerable to abuse and incapable of
asking for help and protection. Therefore, the state has
established statutory objectives to foster and promote
community services for the economic, social, and personal
well-being of its citizens. EADACPA further states that
infirm elderly persons and dependent adults are a
disadvantaged class, that cases of abuse of these persons are
seldom prosecuted as criminal matters, and few civil cases are
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resolved due to problems of proof, court delays, and the lack
of incentives to prosecute.
2)APS: Each county in California has an Adult Protective
Services (APS) agency to help elder adults (65 years and
older) and dependent adults (18-64 who are disabled), when
they are unable to meet their own needs, or are victims of
abuse, neglect or exploitation. County APS agencies
investigate reports of abuse of elders and dependent adults
who live in private homes, apartments, or hotels.
APS is the cornerstone of elder and dependent adult abuse
prevention in California and fuses two simultaneous roles of
addressing the needs of incapacitated and isolated adults
living in communities, and addressing elder and dependent
adult abuse and neglect. Since the passage of Title XX of the
U.S. Social Security Act's Block Grants to states for Social
Service and Elder Justice, interest has grown steadily as
congressional and state legislative hearings have revealed the
extent and depth of elder and dependent adult abuse and
exploitation.
Adult Protective Services are voluntary, which means that
generally, when clients refuse help or fail to cooperate in
investigations, unlike child protective services (CPS),
workers are obligated to respect their wishes. SB 196 focuses
upon an exception to the general rule: when an adult is too
impaired to protect themselves. In such cases, society can
assume responsibility to protect them. Public agencies, as an
example, can provide guardianship, and in extreme cases,
involuntary protection in psychiatric settings for people who
pose a threat to themselves or others. Police powers may also
be authorized so that officers may intervene to stop or
prevent harm, the loss of assets or property, and public
nuisances. California remains somewhat behind the curve with
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regard to empowering APS to act in order to reduce the
unnecessary impact of a growing cohort of increasingly
vulnerable, older adults, and the corresponding increasing
likelihood that they will impact agencies and systems of care,
as victims. SB 196 offers a tool to APS, local government,
and indirectly, the state to manage the person or the affairs
of clients when the risk of abuse is clear and present.
3)Recent Budget Action: The Legislature recently advocated for,
and achieved a $1.25 million training budget for APS staff,
including enhanced training days for new APS workers,
curriculum development, and training for supervisors.
Although APS was recently "realigned" (2011), the State
remains legally responsible for the training of county-level
APS workers. For comparison purposes, child welfare workers
are allocated approximately $7,333 per worker, per year, for
training. APS workers are allocated less than $350 per
worker, per year. With additional complexities to APS duties
proposed by SB 196, the legislature may wish to reassess
whether training resources are adequate to accommodate county
workers who may have significant capacity to reduce the impact
upon a range of social and health services for which the state
expends significant amounts of public resources.
4)Support: The California School Employees Association supports
SB 196 because they acknowledge the mandate to protect elders
and other dependent adults that APS has within communities,
though the authorities which APS has to draw from are limited.
SB 196 grants APS an important and timely tool to allow APS
to take a leadership role and initiate a protective order,
though the courts are still significantly involved in order to
balance and check APS authority. The California Welfare
Directors Association (CWDA) cites that when a conservatorship
is sought, there is no authority to "act" upon the evidence
and material which instigated the conservatorship in the first
place, forcing an incapacitated adult to endure abuse until
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the court has officially authorized conservatorship. This
"gap" can be minimized or eliminated by SB 196. The National
Association of Social Workers, California Chapter (NASW-CA)
cites that existing protective orders were designed to address
traditional domestic abuse situations, and are inadequate to
address the unique issues associated with adult abuse where a
victim is potentially incapable of sufficiently advocating on
their own behalf.
5)Related 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 2010) 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 requests for protective orders.
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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.
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 Senate 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 494 is currently on the
Senate Floor.
REGISTERED SUPPORT / OPPOSITION:
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Support
County Welfare Directors Association of California (CWDA) -
Sponsor
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
The Arc and United Cerebral Palsy California Collaboration
California Association for Health Services at Home (CAHSAH)
California Association of Public Authorities (CAPA)
California Commission on Aging
California Communities United Institute
California District Attorneys Association (CDAA)
California Police Chiefs Association Inc.
California School Employees Association (CSEA), AFL-CIO
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California State Association of Counties (CSAC)
California State Retirees (CSR)
Congress of California Seniors (CCS)
LIUNA Locals 777 & 792
National Association of Social Workers, California Chapter
(NASW-CA)
Santa Clara County Board of Supervisors
Urban Counties Caucus (UCC)
Opposition
None on file.
Analysis Prepared by:Robert MacLaughlin / AGING & L.T.C. / (916)
319-3990
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