BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 196| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 196 Author: Hancock (D), et al. Amended: 8/17/15 Vote: 21 SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski SENATE FLOOR: 38-0, 5/26/15 AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk NO VOTE RECORDED: Hall ASSEMBLY FLOOR: 79-0, 8/20/15 - See last page for vote SUBJECT: Elder abuse: protective orders SOURCE: County Welfare Directors Association of California DIGEST: This bill authorizes, as of July 1, 2016, a county adult protective services agency to file a petition for issuance of a protective order on behalf of an elder or dependent adult. Assembly Amendments add double-jointing language to address chaptering out issues with AB 494 (Maienschein) and AB 1081 SB 196 Page 2 (Quirk), modify the circumstances under which the petition for a protective order may be filed, and make other technical changes. ANALYSIS: Existing law: 1) Authorizes, generally, 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. 2) Provides, under the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), civil protections and remedies for victims of elder and dependent adult abuse and neglect. 3) 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. 4) 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 SB 196 Page 3 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. 1) 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. 2) 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. 3) Authorizes the respondent to file a response that explains or denies the alleged abuse. 4) 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. 5) 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. 6) 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 SB 196 Page 4 person's health or safety or the person's estate. This bill: 1) Authorizes a county adult protective services agency to bring a petition for a protective order on behalf of an elder or dependent adult in either of the following circumstances: 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. 1) Requires 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, unless a petition for appointment of a conservator has already been filed with the probate court by the public guardian or another party. 2) Makes a county adult protective services agency subject to such confidentiality restrictions as otherwise apply to its activities under law and authorizes the county adult protective services agency to disclose only such facts as necessary to establish reasonable cause for the filing of the petition, as specified, and as may be requested by the court in determining whether to issue a protective order. 3) Requires, in a proceeding brought by a county adult protective services agency, 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. SB 196 Page 5 4) Requires 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, requires the agency or public conservator to provide information to the court at the hearing regarding the reasons why the elder or dependent adult is not in attendance. 5) Requires, upon the filing of a petition for a protective order and upon issuance of an order granting the petition, 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, facilitating the location of alternative accommodations for the elder or dependent adult if needed. 6) Revises 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. 7) Becomes operative on July 1, 2016, and requires the Judicial Council to develop forms, instructions, and rules to implement this bill. 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, Chapter 774, Statutes of 1991), which established EADACPA and provides SB 196 Page 6 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 additionally authorizes a county adult protective services agency to file a petition for a protective order on behalf of the elder or dependent adult, as specified. Comments The author writes: Current law authorizes certain entities to file for 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. SB 196 Page 7 Related/Prior Legislation AB 1081 (Quirk, 2015), among other things, authorizes any party to an elder or dependent adult protective order proceeding to request a continuance of a hearing, as specified, and automatically extends a temporary protective order until the end of the continuance of the hearing. AB 494 (Maienschein, 2015), among other things, authorizes 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 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 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 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 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SB 196 Page 8 SUPPORT: (Verified 8/20/15) County Welfare Directors Association of California (source) American Federation of State, County and Municipal Employees, AFL-CIO California Association for Health Services at Home California Association of Public Authorities California Commission on Aging California Communities United Institute California District Attorneys Association California Police Chiefs Association Inc. California School Employees Association, AFL-CIO California State Association of Counties California State Retirees Congress of California Seniors Laborers' International Union of North America, Locals 777 & 792 National Association of Social Workers, California Chapter Retired Public Employees Association Santa Clara County Board of Supervisors The Arc and United Cerebral Palsy California Collaboration Urban Counties Caucus OPPOSITION: (Verified8/20/15) None received ASSEMBLY FLOOR: AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Chu SB 196 Page 9 Prepared by:Tara Welch / JUD. / (916) 651-4113 8/21/15 10:36:07 **** END ****