BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 196|
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                                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  








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          (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








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                   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  








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             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.








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           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  








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          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.









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          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









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          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








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          Prepared by:Tara Welch / JUD. / (916) 651-4113
          8/21/15 10:36:07


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