Amended in Senate March 15, 2016

Senate Bill No. 938

Introduced by Senator Jackson

February 2, 2016

An act to amend Section 2356.5 of the Probate Code, relating to begin delete protective proceedings. end delete begin insert conservatorships. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 938, as amended, Jackson. begin delete Protective proceedings: conservator authorizations. end delete begin insert Conservatorships: psy end insert begin insert ch end insert begin insert otropic drugs. end insert

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). begin delete The bill would prohibit the placement of a conservatee in an acute psychiatric hospital and psychiatric health facility, as specified. end delete The bill would require petitions requesting the authority to administer certain prescribed medications to be supported by a declaration of a begin delete licensed physician, psychiatrist, end delete begin insert physician end insert or psychologist that includes specified information begin insert , end insert including, among other things, begin delete 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. end delete begin insert the recommended course of medication, the expected effects of the recommended medication on the conservatee’s overall mental health and treatment plan, including how the medication is expected to improve the conservatee’s symptoms, and a description of the potential side effects of the recommended medication. end insert 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 conservatees with major begin insert or mild end insert 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.

(3) That, by adding powers to the probate conservatorship for
conservatees with MNCDs, their unique and special needs can be
begin delete 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. end delete begin insert met, and the basic dignity and rights of the
conservatee can be safeguarded. end 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. begin delete 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 delete

(5) Psychotropic medications are often misused for people with
MNCDs to control behavior that conveys pain, distress, or
begin delete discomfort. end delete begin insert discomfort and the administration of psychotropic
medications has been and can be abused by those who prescribe
and administer these medications. end 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.

(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.

begin delete

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

(9)

end delete

begin insert (8) end insert  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 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 begin delete or would benefit from end delete a restricted
and secure environment, as demonstrated by evidence presented
by the physician or psychologist referred to in paragraph (3) of
subdivision begin delete (f). end delete begin insert (e end insert begin insert ). end insert

(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 begin insert psychotropic end insert medications
begin delete appropriate for the care and treatment of end delete begin insert to a conservatee with end insert an
MNCD, upon a court’s finding, by clear and convincing evidence,
of all of the following:

(1) The conservatee has 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 begin insert psychotropic end insert medications begin delete appropriate to
the care of the end delete begin insert for the treatment of an end insert 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 appropriate medication as
demonstrated by evidence presented by the begin delete licensed physician,
psychiatrist, end delete begin insert physician end insert or psychologist referred to in paragraph begin delete (4) end delete
begin insert (3) end insert of subdivision begin delete (f). end delete begin insert (e). end insert

(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.

begin delete

(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, an institution for mental disease as described in Section
5900 of the Welfare and Institutions 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)

end delete

begin insert (e) end insert  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) begin insert or
(c) end insert shall be supported by a declaration of a begin delete licensed end delete physician, or
a begin delete licensed end delete 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 MNCDs. begin insert The
supporting declaration for a petition requesting authority under
subdivision (c) shall also include all of the following: end insert

begin delete

(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 delete begin delete

(A) The reasons for the request.

end delete begin delete

(B)

end delete

begin insert (A) end insert  A description of the conservatee’s diagnosis and behavior.

begin insert

(B) The recommended course of medication.

end insert begin insert

(C) A description of the pharmacological and
nonpharmacological treatments and medications that have been
previously used or proposed, the less invasive treatments or
medications used or proposed, and why these treatments or
medications have not been or would not be effective in treating
the conservatee’s symptoms.

end insert begin delete

(C)

end delete

begin insert (D) end insert  The expected begin delete results of the medication. end delete begin insert end insert begin insert effects of the
recommended medication on the conservatee’s overall mental
health and treatment plan, including how the medication is
expected to improve the conservatee’s symptoms. end insert

begin delete

(D)

end delete

begin insert (E end insert begin insert ) end insert  A description of begin delete any end delete begin insert the potential end insert side effects of the
begin insert recommended end insert medication.

begin delete

(E)

end delete

begin insert (F) end insert  Whether the conservatee and his or her attorney have had
an opportunity to provide input on the begin delete medications being
prescribed. end delete begin insert recommended medications. end insert

begin delete

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

end delete begin delete

(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 delete begin delete

(5)

end delete

begin insert (4) end insert  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.

begin delete

(6)

end delete

begin insert (5) end insert  The petition may be filed by any of the persons designated
in Section 1891.

begin delete

(g)

end delete

begin insert (f) end insert  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.

begin delete

(h)

end delete

begin insert (g) end insert  A petition to terminate authority granted under this section
shall be governed by Section 2359.

begin delete

(i)

end delete

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

begin delete

(j)

end delete

begin insert (i) end insert  Nothing in this section shall affect the laws that would
otherwise apply in emergency situations.

begin delete

(k)

end delete

begin insert (j) end insert  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 an MNCD.