BILL ANALYSIS Ó
SB 196
Page 1
SENATE THIRD READING
SB
196 (Hancock)
As Amended June 25, 2015
Majority vote
SENATE VOTE: 38-0
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |O'Donnell | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Aging |7-0 |Brown, Hadley, | |
| | |Gipson, Gray, Levine, | |
| | |Lopez, Mathis | |
| | | | |
| | | | |
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SB 196
Page 2
SUMMARY: Authorizes a county adult protective services agency
to file a petition for a protective order on behalf of an elder
or dependent adult, as specified. Specifically, this bill:
1)Recasts the definition of "abuse of an elder or dependent
adult" in order to distinguish "financial abuse" and define it
in accord with an existing statute.
2)Authorizes a county adult protective services (APS) agency to
file a petition for a protective order on behalf of an elder
or dependent adult in either of the following circumstances:
a) 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.
b) The elder or dependent adult has provided written
authorization to a county APS agency to act on his or her
behalf.
3)Specifies that the APS agency shall be subject to any
confidentiality restrictions that otherwise apply to its
activities and shall disclose only those facts that are
necessary to establish reasonable cause for the filing of the
petition, including to establish the agency's belief that the
elder or dependent adult has suffered abuse and has impaired
ability to appreciate and understand the circumstances that
place him or her at risk, and as may be requested by the
court.
4)Provides that when an APS agency files a petition for a
SB 196
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protective order on behalf of an elder or dependent adult, all
of the following apply:
a) Upon the filing of the petition for a protective order,
the elder or dependent adult on whose behalf the petition
is filed shall receive a copy of the petition, a notice of
the hearing, and any declarations submitted in support of
the petition at least five days before the hearing, unless
the court shortens the time, as specified.
b) The APS agency shall make reasonable efforts to assist
the elder or dependent adult to attend the hearing and
provide testimony to the court.
c) Upon issuance of an order granting the petition, the APS
agency shall take all reasonable steps to provide for the
safety of the elder or dependent adult, as specified.
5)Requires, except as otherwise provided, that the APS agency's
petition for a protective order, and the court's issuance and
execution of the order, comply with same requirements that
govern a petition filed by a conservator, attorney-in-fact,
guardian ad litem, or other person legally authorized to seek
the protective order under existing law.
EXISTING LAW:
1)Permits a court to issue a protective order to prevent the
abuse of an elder or depedent adult and authorizes a
conservator or trustee, attorney-in-fact, or guardian ad litem
to file a petition for a protective order on behalf of the
elder or dependent adult.
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2)Defines "protective order," for purposes of the above, to mean
an order that includes any of the following restraining
orders: an order enjoining a party from engaging in specified
forms of abuse, harassment, and intimidation; an order
excluding a party from the elder's or dependent adult's
residence as specified; any other order that the court deems
necessary to effectuate the protective order.
3)Provides that the protective orders described above may be
issued, with or without notice, if the declaration shows, to
the satisfaction of the court, reasonable proof of a past act
or acts of abuse of the elder or dependent adult.
4)Permits the petitioner, upon the filing of the petition, to
obtain a temporary restraining order, as specified. However,
the court may issue an ex parte order excluding a party from
the petitioner's residence only upon specified showings.
5)Establishes procedures and timeframes for serving notice,
setting and conducting hearings, and issuing and executing
protective orders for the protection of elders and dependent
adults.
6)Specifies that parties may be represented by counsel and
entitles the prevailing party to court costs and attorney's
fees, if any.
7)Restricts the person who is subject to the protective order
from possessing or obtaining firearms and provides for
punishment for any willful disobedience of the protective
order.
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FISCAL EFFECT: None
COMMENTS: This bill, sponsored by the County Welfare Directors
Association (CWDA), authorizes a county APS agency to seek a
protective order on behalf of an elder or dependent adult if
there is reason to believe that the elder or dependent adult has
suffered abuse and has an impaired ability to fully appreciate
or understand the circumstances creating the risk of abuse.
CWDA is especially concerned about the "gap" between the time
when a probate conservatorship is initiated and the time when a
conservator is appointed. Allowing APS to directly petition the
court for a protective order would allow the court to restrain
ongoing abuse while the conservatorship petition is
investigated.
Limitations in Existing Law. Existing law authorizes a
conservator or trustee, attorney-in-fact with power of attorney,
or a person appointed as a guardian ad litem to file a petition
for a protective order on behalf of the elder or dependent
adult. Because APS agencies are not expressly authorized to
petition for protective orders under existing law, they must use
some other means to seek protection of an elder or dependent who
is a victim of physical or financial abuse. According to the
author, however, existing options fall short in a number of
ways. For example, APS could seek an "Emergency" Protective
Order (EPO), but these orders are time-limited (usually five
days) and designed to prevent physical harm or abuse, usually in
cases of domestic violence. They are not, therefore,
well-adapted to the unique issues of elder and dependent adult
abuse cases, which can but do not necessarily involve physical
abuse. A temporary restraining order (TRO) could potentially
enjoin non-physical forms of abuse, but the TRO process
generally assumes that the victim is able to initiate the
request. Other options available to an APS agency include
seeking appointment of a temporary conservator, or a guardian ad
litem. Both the temporary conservator and the guardian ad litem
would have the authority to seek a protective order. However,
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according to the author and sponsor, seeking such an appointment
would be an additional and time-consuming step that would
necessarily frustrate the time-sensitive efforts of APS staff to
fill the gap while the conservatorship is sought. Moreover,
some of these alternatives - especially a conservatorship - may
impose greater restrictions on the victim's freedom than
necessary.
In order to overcome these existing limitations, this bill would
allow an APS agency to obtain a protective order in more or less
the same manner in which other authorized persons may currently
file a petition for a protective order on behalf of an elder or
dependent adult. Under existing law, the abuse victim's
conservator or trustee, attorney-in-fact, guardian ad litem, or
"other person legally authorized to seek relief" may obtain a
protective order on behalf of the elder or dependent adult if it
can show "to the satisfaction of the court, reasonable proof of
a past act or acts of abuse of the petitioning elder or
dependent adult." This bill would allow the APS agency to file
a petition in a substantially similar manner, so long as it
could provide evidence supporting the agency's belief that the
elder has suffered abuse and has an impaired ability to
appreciate and understand the circumstances that place him or
her at risk. As with existing petitions for protective orders,
a court could request additional evidence as it deems necessary.
Additional Protections for Elders and Dependent Adults. When a
conservator or guardian ad litem files a petition for a
protective order, certain findings have necessarily already been
made about the capacity of the elder or dependent adult in prior
proceedings. However, this will not necessarily be the case
when an APS agency files a petition. Therefore, this bill
appropriately imposes additional requirements when an APS agency
files a petition so that the elder or dependent adult will have
notice and an opportunity to be heard. Specifically, when an
APS agency files a petition, this bill requires that elder or
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dependent adult on whose behalf the petition is filed receive a
copy of the petition, a notice of the hearing, and any
declarations submitted in support of the petition. This
information must be provided to the elder or dependent adult at
least five days before the hearing, unless the court permits a
shorter period. In addition, the APS agency must make
reasonable efforts to assist the elder or dependent adult to
attend the hearing and provide testimony, if he or she wishes to
do so. If the elder or dependent adult does not attend the
hearing, the agency must explain to the court why the elder or
dependent adult is not in attendance. Finally, upon issuance of
the order, the APS agency must take reasonable steps to provide
for the safety of the elder or dependent adult, as specified.
Analysis Prepared by:
Thomas Clark / JUD. / (916) 319-2334 FN:
0001157