BILL NUMBER: SB 938	INTRODUCED
	BILL TEXT


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  people with dementia,  
conservatees with major neurocognitive disorders (MNCDs),  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. 
   (2) Common forms of MNCDs are known as Alzheimer's disease,
vascular dementia, dementia with Lewy bodies, Parkinson dementia,
frontotemporal dementia, and mixed dementia.  
   (2) 
    (3)  That, by adding powers to the probate
conservatorship for  people with dementia, 
conservatees with MNCDs,  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. 
   (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.  
   (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.  
   (5) Psychotropic medications are often misused for people with
MNCDs to control behavior that conveys pain, distress, or discomfort.
 
   (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.  
   (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.  
   (8) The administration of psychotropic medications has been, and
can be, abused by caregivers.  
   (9) Therefore, granting powers to a conservator to authorize these
medications for the treatment of an MNCD requires the protections
specified in this section. 
   (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  dementia,   an MNCD
 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  dementia,   an MNCD, 
upon a court's finding, by clear and convincing evidence, of all of
the following:
   (1) The conservatee has  dementia,   an MNCD,
 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
 dementia,   the MNCD,  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  or would benefit from 
appropriate medication as demonstrated by evidence presented by the
 physician   licensed physician, psychiatrist,
 or psychologist referred to in paragraph  (3) 
 (4)  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,  or in  an institution for mental disease as
described in Section 5900 of the Welfare and Institutions 
Code.   Code, an acute psychiatric hospital as described
in subdivision (b) of Section 1250 of the Health and Safety Code, or
  a psychiatric health facility as described in subdivision
(a) of Section 1250.2 of the Health and Safety Code. 
   (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  requesting authority under subdivision (b)
 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  dementia 
 MNCDs  . 
   (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:
 
   (A) The reasons for the request.  
   (B) A description of the conservatee's diagnosis and behavior.
 
   (C) The expected results of the medication.  
   (D) A description of any side effects of the medication. 

   (E) Whether the conservatee and his or her attorney have had an
opportunity to provide input on the medications being prescribed.
 
   (F) Information regarding the conservatee's overall mental health
assessment and treatment plan.  
   (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.  
   (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.  
   (4) 
    (6)  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  dementia
  an MNCD  .
   (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  dementia   an MNCD  .