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 ****