Amended in Senate May 31, 2016

Amended in Senate March 15, 2016

Senate Bill No. 938

Introduced by Senator Jackson

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(Coauthor: Senator Wieckowski)

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February 2, 2016

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

LEGISLATIVE COUNSEL’S DIGEST

SB 938, as amended, Jackson. Conservatorships: psychotropic begin delete drugs. end delete begin insert medications. end insert

Existing law authorizes a conservator to place a conservatee in a secured perimeter residential care begin delete facility, end delete begin insert facility for the elderly, end insert as specified, or to begin delete administer end delete begin insert authorize the administration of end insert 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 begin delete (MNCDs). end delete begin insert (MNCDs), as defined. end insert The bill would require begin delete petitions end delete begin insert a petition end insert requesting the authority to administer begin delete certain prescribed medications end delete begin insert psychotropic medications, as defined, end insert to be supported by a declaration of a physician or psychologist that includes specified information, including, among other things, 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. 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 delete or mild end delete 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
met, and the basic dignity and rights of the conservatee can be
safeguarded.

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(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.

(5)

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begin insert (4) end insert  Psychotropic medications begin delete are often end delete begin insert can be end insert misused for
people with MNCDs to control behavior that conveys pain, distress,
or discomfort and the administration of psychotropic medications
has been and can be abused by those who prescribe and administer
these medications.

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(6)

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begin insert (5) end insert  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.

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(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.

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(8)

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begin insert (6) end insert  Therefore, granting powers to a conservator to authorize
these medications for the treatment of begin insert a person with end insert an MNCD
requires the protections specified in this section.

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(b) For the purposes of this section, “MNCD” means a major
neurocognitive disorder, as defined in the latest published edition
of the “Diagnostic and Statistical Manual of Mental Disorders.”

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(b)

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begin insert (c) end insert  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 begin delete MNCD as defined in the last
published edition of the “Diagnostic and Statistical Manual of
Mental Disorders.” end delete begin insert MNCD. end insert

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

(4) The begin delete court finds that the end delete proposed placement in a begin delete locked
facility end delete begin insert secured perimeter residential care facility for the elderly end insert
is the least restrictive placement appropriate to the needs of the
conservatee.

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(c)

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begin insert (d) end insert  Notwithstanding any other law, a conservator of a person
may authorize the administration of psychotropic medications to
a conservatee with an MNCD, upon a court’s finding, by clear and
convincing evidence, of all of the following:

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

(2) The conservatee lacks the capacity to give informed consent
to the administration of psychotropic medications for begin delete the end delete begin insert his or
her end insert treatment begin delete of an MNCD, end delete 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 insert or would benefit from end insert appropriate
medication as demonstrated by evidence presented by the physician
or psychologist referred to in paragraph (3) of subdivision begin delete (e). end delete begin insert (f). end insert

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(d)

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begin insert (e) end insert  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 begin delete (c) end delete begin insert (d) end insert shall be by
an accredited practitioner of that religion in lieu of the
administration of medications.

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(e)

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

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

(B) The recommended course of medication.

(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.

(D) 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.

(E) A description of the potential side effects of the
recommended begin delete medication. end delete begin insert medication, including any black box
warnings issued by the federal Food and Drug Administration as
defined in Section 201.57(c)(1) of Title 21 of the Code of Federal
Regulations. end insert

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

(4) 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.

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

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(f)

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begin insert (g) 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.

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(g)

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

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(h)

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

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(i)

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

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(j)

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begin insert (k) 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.

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(l) For purposes of this section, “psychotropic medications”
includes, but is not limited to, anxiolytic agents, antidepressants,
mood stabilizers, antipsychotic medications, anti-Parkinson agents,
hypnotics, and psychostimulants. “Psychotropic medications”
does not include medications approved by the federal Food and
Drug Administration for the treatment of an MNCD.

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