Senate Bill No. 938

Introduced by Senator Jackson

February 2, 2016

An act to amend Section 2356.5 of the Probate Code, relating to protective proceedings.

LEGISLATIVE COUNSEL’S DIGEST

SB 938, as introduced, Jackson. Protective proceedings: conservator authorizations.

Existing law authorizes a conservator to place a conservatee in a secured perimeter residential care facility, as specified, or to administer certain prescribed medications upon a court’s finding that among other things, the conservatee has dementia and a functional impairment. Existing law requires certain findings to be made by the court for each type of authority sought by the conservator and requires a petition for authority to be supported by a declaration of a licensed physician or psychologist, as specified, regarding these findings.

This bill would replace references to the term dementia in these provisions with major neurocognitive disorders (MNCDs). The bill would prohibit the placement of a conservatee in an acute psychiatric hospital and psychiatric health facility, as specified. The bill would require petitions requesting the authority to administer certain prescribed medications to be supported by a declaration of a licensed physician, psychiatrist, or psychologist that includes specified information including, among other things, the reasons for the request, information regarding the rationale for the proposed medication, and information regarding the conservatee’s overall mental health assessment and treatment plan. The bill would require the Judicial Council, on or before July 1, 2017, to adopt rules of court and develop appropriate forms for the implementation of these provisions, as specified. The bill would make additional findings and declarations of the Legislature.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2356.5 of the Probate Code is amended
to read:

2356.5.  

(a) The Legislature hereby finds and declares:

(1) That begin delete people with dementia, end delete begin insert conservatees with major
neurocognitive disorders (MNCDs), end insert as defined in the last published
edition of the “Diagnostic and Statistical Manual of Mental
Disorders,” should have a conservatorship to serve their unique
and special needs.

begin insert

(2) Common forms of MNCDs are known as Alzheimer’s disease,
vascular dementia, dementia with Lewy bodies, Parkinson
dementia, frontotemporal dementia, and mixed dementia.

end insert begin delete

(2)

end delete

begin insert (3) end insert  That, by adding powers to the probate conservatorship for
begin delete people with dementia, end delete begin insert conservatees with MNCDs, end insert their unique
and special needs can be met. This will reduce costs to the
conservatee and the family of the conservatee, reduce costly
administration by state and county government, and safeguard the
basic dignity and rights of the conservatee.

begin delete

(3) That it is the intent of the Legislature to recognize that the
administration of psychotropic medications has been, and can be,
abused by caregivers and, therefore, granting powers to a
conservator to authorize these medications for the treatment of
dementia requires the protections specified in this section.

end delete begin insert

(4) Psychotropic medications or psychotropic drugs are those
medications administered for the purpose of affecting the central
nervous system to treat psychiatric disorders or illnesses. These
medications include, but are not limited to, anxiolytic agents,
antidepressants, mood stabilizers, antipsychotic medications,
anti-Parkinson agents, hypnotics, medications for dementia, and
psychostimulants.

end insert begin insert

(5) Psychotropic medications are often misused for people with
MNCDs to control behavior that conveys pain, distress, or
discomfort.

end insert begin insert

(6) Since 2005, the federal Food and Drug Administration has
required the packaging of all antipsychotic medications, which
fall under a class of psychotropic medication, to contain a black
box warning label that the medication significantly increases the
risk of death for elderly people with MNCDs.

end insert begin insert

(7) Recent studies have shown that, in many instances,
psychotropic drugs are outperformed by placebos and can actually
worsen the cognitive ability of a person with an MNCD.

end insert begin insert

(8) The administration of psychotropic medications has been,
and can be, abused by caregivers.

end insert begin insert

(9) Therefore, granting powers to a conservator to authorize
these medications for the treatment of an MNCD requires the
protections specified in this section.

end insert

(b) Notwithstanding any other law, a conservator may authorize
the placement of a conservatee in a secured perimeter residential
care facility for the elderly operated pursuant to Section 1569.698
of the Health and Safety Code, and which has a care plan that
meets the requirements of Section 87705 of Title 22 of the
California Code of Regulations, upon a court’s finding, by clear
and convincing evidence, of all of the following:

(1) The conservatee has begin delete dementia, end delete begin insert an MNCD end insert as defined in the
last published edition of the “Diagnostic and Statistical Manual of
Mental Disorders.”

(2) The conservatee lacks the capacity to give informed consent
to this placement and has at least one mental function deficit
pursuant to subdivision (a) of Section 811, and this deficit
significantly impairs the person’s ability to understand and
appreciate the consequences of his or her actions pursuant to
subdivision (b) of Section 811.

(3) The conservatee needs or would benefit from a restricted
and secure environment, as demonstrated by evidence presented
by the physician or psychologist referred to in paragraph (3) of
subdivision (f).

(4) The court finds that the proposed placement in a locked
facility is the least restrictive placement appropriate to the needs
of the conservatee.

(c) Notwithstanding any other law, a conservator of a person
may authorize the administration of medications appropriate for
the care and treatment of begin delete dementia, end delete begin insert an MNCD, end insert upon a court’s
finding, by clear and convincing evidence, of all of the following:

(1) The conservatee has begin delete dementia, end delete begin insert an MNCD, end insert as defined in the
last published edition of the “Diagnostic and Statistical Manual of
Mental Disorders.”

(2) The conservatee lacks the capacity to give informed consent
to the administration of medications appropriate to the care of
begin delete dementia, end delete begin insert the MNCD, end insert and has at least one mental function deficit
pursuant to subdivision (a) of Section 811, and this deficit or
deficits significantly impairs the person’s ability to understand and
appreciate the consequences of his or her actions pursuant to
subdivision (b) of Section 811.

(3) The conservatee needs begin delete or would benefit from end delete appropriate
medication as demonstrated by evidence presented by the begin delete physician end delete
begin insert licensed physician, psychiatrist, end insert or psychologist referred to in
paragraph begin delete (3) end delete begin insert (4) end insert of subdivision (f).

(d) Pursuant to subdivision (b) of Section 2355, in the case of
a person who is an adherent of a religion whose tenets and practices
call for a reliance on prayer alone for healing, the treatment
required by the conservator under subdivision (c) shall be by an
accredited practitioner of that religion in lieu of the administration
of medications.

(e) A conservatee who is to be placed in a facility pursuant to
this section shall not be placed in a mental health rehabilitation
center as described in Section 5675 of the Welfare and Institutions
Code, begin delete or in end delete an institution for mental disease as described in Section
5900 of the Welfare and Institutions begin delete Code. end delete begin insert Code, an acute
psychiatric hospital as described in subdivision (b) of Section 1250
of the Health and Safety Code, or end insert begin insert a psychiatric health facility as
described in subdivision (a) of Section 1250.2 of the Health and
Safety Code. end insert

(f) A petition for authority to act under this section is governed
by Section 2357, except:

(1) The conservatee shall be represented by an attorney pursuant
to Chapter 4 (commencing with Section 1470) of Part 1. Upon
granting or denying authority to a conservator under this section,
the court shall discharge the attorney or order the continuation of
the legal representation, consistent with the standard set forth in
subdivision (a) of Section 1470.

(2) The conservatee shall be produced at the hearing, unless
excused pursuant to Section 1893.

(3) The petition begin insert requesting authority under subdivision (b) end insert shall
be supported by a declaration of a licensed physician, or a licensed
psychologist within the scope of his or her licensure, regarding
each of the findings required to be made under this section for any
power requested, except that the psychologist has at least two years
of experience in diagnosing begin delete dementia end delete begin insert MNCDs end insert .

begin insert

(4) The petition requesting authority under subdivision (c) shall
be supported by a declaration of the licensed physician,
psychiatrist, or psychologist, and provide all of the following:

end insert begin insert

(A) The reasons for the request.

end insert begin insert

(B) A description of the conservatee’s diagnosis and behavior.

end insert begin insert

(C) The expected results of the medication.

end insert begin insert

(D) A description of any side effects of the medication.

end insert begin insert

(E) Whether the conservatee and his or her attorney have had
an opportunity to provide input on the medications being
prescribed.

end insert begin insert

(F) Information regarding the conservatee’s overall mental
health assessment and treatment plan.

end insert begin insert

(G) Information regarding the rationale for the proposed
medication, provided in the context of past and current treatment
efforts, including, but not limited to, information on other
pharmacological and nonpharmacological treatments that have
been utilized and the conservatee’s response to those treatments,
a discussion of symptoms not alleviated or ameliorated by other
current or past treatment efforts, and an explanation of how the
psychotropic medication being prescribed is expected to improve
the conservatee’s symptoms.

end insert begin insert

(5) On or before July 1, 2017, the Judicial Council shall adopt
rules of court and develop appropriate forms for the
implementation of this section, and shall provide guidance to the
court on how to evaluate the request for authorization, including
how to proceed if information, otherwise required to be included
in a request for authorization under this section, is not included
in a request for authorization submitted to the court.

end insert begin delete

(4)

end delete

begin insert (6) end insert  The petition may be filed by any of the persons designated
in Section 1891.

(g) The court investigator shall annually investigate and report
to the court every two years pursuant to Sections 1850 and 1851
if the conservator is authorized to act under this section. In addition
to the other matters provided in Section 1851, the conservatee shall
be specifically advised by the investigator that the conservatee has
the right to object to the conservator’s powers granted under this
section, and the report shall also include whether powers granted
under this section are warranted. If the conservatee objects to the
conservator’s powers granted under this section, or the investigator
determines that some change in the powers granted under this
section is warranted, the court shall provide a copy of the report
to the attorney of record for the conservatee. If no attorney has
been appointed for the conservatee, one shall be appointed pursuant
to Chapter 4 (commencing with Section 1470) of Part 1. The
attorney shall, within 30 days after receiving this report, do one
of the following:

(1) File a petition with the court regarding the status of the
conservatee.

(2) File a written report with the court stating that the attorney
has met with the conservatee and determined that the petition
would be inappropriate.

(h) A petition to terminate authority granted under this section
shall be governed by Section 2359.

(i) Nothing in this section shall be construed to affect a
conservatorship of the estate of a person who has begin delete dementia end delete begin insert an
MNCD end insert .

(j) Nothing in this section shall affect the laws that would
otherwise apply in emergency situations.

(k) Nothing in this section shall affect current law regarding the
power of a probate court to fix the residence of a conservatee or
to authorize medical treatment for any conservatee who has not
been determined to have begin delete dementia end delete begin insert an MNCD end insert .