Amended in Assembly August 19, 2016

Amended in Assembly August 4, 2016

Amended in Assembly June 29, 2016

Amended in Senate May 31, 2016

Amended in Senate March 15, 2016

Senate Bill No. 938

Introduced by Senator Jackson

(Coauthor: Senator Wieckowski)

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 medications begin insert and end insert secured perimeter facilities.

Existing law authorizes a conservator to place a conservatee in a secured perimeter residential care facility for the elderly, as specified, or to authorize the administration of 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), as defined. The bill would require a petition requesting the authority to administer psychotropic medications, as defined, to be supported by a declaration of a physician 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 revise the court findings required for placement in a secured perimeter facility. 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 related changes and 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 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.

(4) Psychotropic medications can be 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.

(5) 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.

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

(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.”

(c) 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.

(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 proposed placement in a secured perimeter residential
care facility for the elderly is the least restrictive placement
appropriate to the needs of the conservatee.

(5) The secured setting is the choice of the conservator from
various setting options, as documented in the person-centered care
plan.

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

(1) The conservatee has an MNCD.

(2) The conservatee lacks the capacity to give informed consent
to the administration of psychotropic medications for his or her
treatment 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
as provided in subdivision (f).

(e) 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 (d) shall be by an
accredited practitioner of that religion in lieu of the administration
of medications.

(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 (c) 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. The psychologist shall have at least two years of
experience in diagnosing MNCDs.

(4) The petition requesting authority under subdivision (d) shall
be supported by a declaration of a physician regarding each of the
findings required to be made under this section for any power
requested. The supporting declaration for a petition requesting
authority under subdivision (d) shall also include all of the
following:

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

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

(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.

(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) If authority to administer psychotropic medications is granted
pursuant to subdivision (d), the conservator may change or adjust
psychotropic medications without further notice to, or approval
from, the court, provided that the change or adjustment is consistent
with the authority granted by the court begin insert to administer psychotropic
medications for purposes of therapeutic treatment directly related
to the MNCD, end insert and the conservator has received information about
the risks, benefits, and begin insert nonpharmacological end insert alternatives of the
proposed change or adjustment in advance of approving the change
or adjustment.

(i) If the authority to administer psychotropic medications is
granted pursuant to subdivision (d), the court shall review the grant
of authority as part of its periodic review conducted pursuant to
Section 1850.

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

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

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

(m) 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.

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

(o) This section shall not apply to a conservatee who is
prescribed a psychotropic or antipsychotic medication by a
physician in an acute care hospital setting or for purposes of
diagnosis or therapeutic treatment not directly related to the
MNCD, including, but not limited to, sedation prior to an invasive
procedure or nausea prevention or relief. In those circumstances,
the informed consent of the conservator may be obtained pursuant
to the authority granted under Section 2355.