BILL ANALYSIS �
AB 1725
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1725 (Maienschein) - As Introduced: February 14, 2014
As Proposed to be Amended
SUBJECT : Mental Health: Conservatorship Hearings
KEY ISSUE : Should a court, based on medical evidence presented
to it, be authorized to recommend a conservatorship for a person
who is gravely disabled by mental illness and unwilling to
accept voluntary treatment?
SYNOPSIS
California has two types of conservatorships. Probate
conservatorships - established under the Probate Code - are
established for adults who cannot adequately care for basic
personal needs. Most probate conservatees are elderly persons,
but can also include younger adults with severe developmental
disabilities. Conservatorships established under the
Lanterman-Petris-Short (LPS) Act, on the other hand, are for
persons who are gravely disabled by mental illness or who pose a
threat to themselves or others. LPS conservatorships are
created when a psychiatric facility in which the prospective
conservatee is held makes a recommendation to the county
conservatorship investigator, who in turn may petition a
superior court for the conservatorship. A critical difference
between a probate conservatorship and an LPS conservatorship is
that the former, with one exception, only allows the conservator
to consent to medical treatment on behalf of the conservatee;
the probate conservator cannot, however, compel treatment if the
conservatee refuses. The LPS conservator, on the other hand,
may, if the court order so provides, compel psychiatric
treatment and placement in a locked facility for a conservatee
who is unwilling to accept voluntary treatment. According to
the author, however, many seriously mentally ill persons who
might benefit from an LPS conservatorship and treatment cannot
obtain it because the person does not rise to the level of
"gravely disabled" or a "danger to self or others," as is
required to trigger the LPS process. This bill would create an
additional means by which an LPS conservatorship could be
recommended to the county investigator. It would allow a
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probate court to make a recommendation to the county
investigator, but only if the person is already under a probate
conservatorship and the court has heard medical evidence
supporting the recommendation. This bill does not permit the
court to establish an LPS conservatorship on its own motion; it
only permits the court to make a "recommendation," based on
medical evidence, to the county investigator. It would still be
up to the investigator, if he or she concurs with the court, to
act on that recommendation. The author will take amendments in
this Committee that were agreed to in the Assembly Health
Committee. These amendments remove the opposition of Disability
Rights California, but not the opposition of the California
State Association of Counties, who remain concerned about issues
of costs, workload, and the authority of county investigations.
SUMMARY : Permits a probate court to recommend an LPS
conservatorship to a county conservatorship investigator, as
specified. Specifically, this bill :
1)Permits a court, after a hearing attended by the proposed
conservatee or the proposed conservatee's counsel, or both, to
recommend an LPS conservatorship to the county officer
providing conservatorship investigations when the court in a
probate conservatorship hearing determines, based on evidence
presented to the court, including medical evidence, that a
person for whom a probate conservatorship has been
established, may be gravely disabled as a result of mental
disorder or chronic alcoholism and is unwilling to accept, or
incapable of accepting treatment voluntarily. Specifies that
if the conservatee cannot afford counsel, the court shall
appoint counsel for him or her.
2)Requires the officer providing the conservatorship
investigation to file his or her report with the court that
made the conservatorship investigation within 30 days of
receiving a recommendation.
3)Provides that if the officer providing the conservatorship
investigation concurs with the recommendation of the court, he
or she shall petition the appropriate superior court to
establish the LPS conservatorship.
EXISTING LAW :
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1)Provides that if a person is gravely disabled as a result of
mental illness, or is determined to be a danger to self or
others, then a peace officer, the staff of designated
treatment facility or crisis team, or other professional
person designated by the county, may, upon probable cause,
take that person into custody for a period of up to 72 hours
for assessment, evaluation, crisis intervention, or placement
in a designated treatment facility. (Welfare & Institutions
Code Section 5150.)
2)Provides that the person who has been detained for 72 hour,
pursuant to the above, may be detained for up to14 days of
intensive treatment if the person continues to pose a danger
to self or others, or to be gravely disabled, and the person
has been unwilling or unable to accept voluntary treatment. A
person who has been detained for 14 days of intensive
treatment may be detained for up to 30 days of intensive
treatment if the person remains gravely disabled and is
unwilling or unable to accept treatment voluntarily. (Welfare
& Institutions Code Sections 5250, 5270.15.)
3)Allows the professional person in charge of a facility
providing 72-hour, 14-day, or 30-day treatment to recommend an
LPS conservatorship to the county conservatorship investigator
for a person who is gravely disabled and is unwilling or
unable to accept voluntary treatment. Requires the
conservatorship investigator, if he or she concurs with the
recommendation, to petition the superior court to establish an
LPS conservatorship. (Welfare & Institutions Code Sections
5350 et seq.)
4)Gives the LPS conservator the right, if specified in the court
order, to require the conservatee to receive treatment related
specifically to remedying or preventing the recurrence of the
conservatee's being gravely disabled. However, in the absence
of such an order, the conservatee generally retains the right
to give or withhold consent to medical treatment, except as
specified. (Welfare & Institutions Code Sections 5358,
5358.2; see also Scott v. Superior Court (2012) 204 Cal. App.
4th 326, rev. denied.)
5)Permits any interested person to petition the court for the
appointment of a "conservator of the person" for a person who
is unable to provide properly for his or her personal needs
for physical health, food, clothing, or shelter. Permits the
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appointment of a "conservator of the estate" for a person who
is unable to manage his or her financial resources or resist
fraud or undue influence. (Probate Code Section 1801
(a)-(b).)
6)Permits a conservator under the Probate to place a conservatee
in a locked facility only if there is clear and convincing
evidence of all of the following: the conservatee has
dementia; the conservatee lacks capacity to give informed
consent, as specified, to this placement; the conservatee
would benefit from this placement; and the court determines
that placement in a locked facility is the least restrictive
placement given the needs of the conservatee. (Probate Code
Section 2356.5.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : California has two types of conservatorships.
Probate conservatorships - established under the Probate Code -
are established for adults who cannot adequately care for basic
personal needs or manage their financial resources. Most
probate conservatees are elderly persons, but they can include
younger adults with severe developmental disabilities. A
petition for a probate conservatorship can be filed by any
interested person, though the petitioner is often a spouse or
family member, or a local social welfare agency that has dealt
with the proposed conservatee in some capacity.
Conservatorships established under the Lanterman-Petris-Short
(LPS) Act, on the other hand, are for persons who are gravely
disabled by mental illness or who pose a threat to themselves or
others. The LPS conservatorship is established for the proposed
conservatee who has received an initial 72-hour evaluation in a
psychiatric treatment facility (a so-called "5150" for the code
section that authorizes it) and has been placed on an additional
14-day hold. After 14 days (or in some cases 30 days, if
extended) an authorized professional of a psychiatric facility
may, if warranted, recommend that the county conservatorship
investigator (sometimes known as the "Public Guardian" or
"County Conservatorship Officer") petition the superior court
for a year-long LPS conservatorship.
A key difference between a probate conservatorship and an LPS
conservatorship is that the probate conservatorship, as a
general rule, only allows the conservator to consent to medical
treatment on behalf of the conservatee; the probate conservator
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cannot, however, compel treatment if the conservatee refuses.
One exception to this rule is that, if the conservatee suffers
from dementia, and certain other conditions are present, the
conservator can compel commitment in a locked nursing facility
and appropriate treatment. (Probate Code Section 2356.5.) The
LPS conservator, on the other hand, may compel treatment for a
conservatee who is unwilling to accept voluntary treatment,
including forced placement in a locked facility and, under
certain circumstances, administration of psychotropic drugs.
According to the author, however, many seriously mentally ill
persons who might benefit from an LPS conservatorship cannot
obtain it because their condition does not rise to the level of
creating a "danger to themselves or others," as is required to
trigger the "5150" and the eventual LPS process. This bill,
therefore, would create an additional means by which an LPS
conservatorship may be recommended to the county conservatorship
investigator. While existing law only allows a doctor or
administrator of a psychiatric facility to recommend an LPS
conservatorship, this bill would allow a probate court to make a
recommendation to the county investigator, but only if the
person is already under a probate conservatorship and the court
has heard medical evidence supporting its determination. It is
important to note that this bill does not permit the court to
establish an LPS conservatorship on its own motion; rather, this
bill permits the court to make a "recommendation," based on
medical evidence, to the county conservatorship investigator.
It would still be up to the investigator, if he or she concurs
with the court, to act on that recommendation and petition a
superior court for an LPS conservatorship.
Civil Liberties Concerns Addressed by Proposed Amendments : As
introduced, this bill would have authorized a family member or
other interested person to petition a court to establish an LPS
conservatorship, even when the county investigator has
considered a recommendation but declined to seek a
conservatorship. Such an approach, as Disability Rights
California (DRC) noted in its letter of opposition to the prior
version of the bill, would have circumvented the LPS process.
Because of the greater potential or loss of liberty under the
LPS conservatorship, the Legislature has built in procedural
protections that are not necessarily needed to establish a
probate court conservatorship. The author may be correct that
the LPS process sets a very high bar - and frustrated and
beleaguered family members might understandably think it is too
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high - but there appears to be some strong reasons for setting
the bar high. Under an LPS conservatorship, which lasts for one
year, a person can be incarcerated in a locked-facility and be
forced to receive treatment - including psychotropic treatment
under some circumstances - against his or her will. These are
serious intrusions into personal liberty that should only be
permitted under the most serious circumstances and with proper
procedural safeguards.
However, after discussions with DRC, the author agreed in the
Assembly Health Committee to address these concerns by taking
amendments in this Committee. Those amendments remove
provisions that would have allowed a family member to petition
the court, even where the county investigator had rejected a
recommendation to petitioning the court for an LPS
conservatorship. The bill eliminates the provision that would
have allowed family members to petition the court and makes it
clear that final authority, even with a probate court
recommendation, lies with the county investigator. Also, the
amendments clarify that the court's recommendation to the county
investigator must be based on medical evidence. This provision
was added to ensure participation of a medical professional,
which the original version of the bill could have circumvented.
The county investigator will only petition a court for an LPS
conservatorship if it concurs with the evidence-based
recommendations of the court.
In light of these proposed amendments, California Disability
Rights has notified the Committee that it no longer opposes this
bill.
ARGUMENTS IN SUPPORT : According to the author, probate courts
today are hampered in their ability to ensure proper care and
treatment of conservatees who suffer from a mental illness. The
author contends that there is a growing class of people whose
situation is not adequately covered by the requirements of
either the probate conservatorship or the LPS conservatorship.
The author notes, for example, that only professionals from the
psychiatric facility treating a patient can make a
recommendation for the LPS conservatorship. Yet many persons
may suffer from serious, treatable mental illness but do not end
up in a psychiatric facility because they do not meet the "5150"
criteria. The law governing traditional probate
conservatorships, on the other hand, only allows for treatment
of a conservatee in a secured facility if the person has a
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diagnosis of dementia, but not for a younger person with a
mental health diagnosis but may have as much need as the elderly
person with dementia. The author contends that there are gaps
between the probate and LPS conservatorship criteria that make
it harder for mentally ill individuals who are not already
hospitalized to qualify for either a probate or LPS
conservatorship. By allowing judges to initiate - but not
mandate - LPS conservatorship proceedings, this bill is intended
to remove obstacles to treatment for these individuals.
ARGUMENTS IN OPPOSITION : The California State Association of
Counties (CSAC) remains in opposition to this bill, even as
proposed to be amended. CSAC writes that the counties "still
have concerns with the cost, workload levels, and the overall
erosion of county authority in conservatorship investigations if
this measure should move forward." CSAC notes that under
existing law "only a county conservatorship investigator can
conduct an investigation and determine whether a person meets
the statutory definition of gravely disabled," and that it must
base its determination on a recommendation from a medical or
psychological professional. CSAC notes that while the bill as
proposed to be amended does not require the investigator to
petition for a conservatorship, "it does compel the
[investigator] to conduct a conservatorship investigation."
Should this measure become law, CSAC anticipates "a significant
increase in workload and county costs for conservatorship
investigations." In addition, CSAC believes that the
requirement that the investigator must file his or her report
with the recommending court within 30 days is "arbitrary and
frankly unrealistic." The California Mental Health Directors
Association opposes this bill for identical reasons.
Recent and Pending Legislation : AB 2266 (Waldron) would
increase the maximum period of imposed treatment under Laura's
Law from six months to one year and allows professional staff of
72-hour and 14-day treatment facilities to request that an
individual be subject to Laura's Law treatment. (This bill
failed passage in the Assembly Judiciary Committee but was
granted reconsideration.)
SB 364 (Steinberg), Chapter 567, Statutes of 2013, broadens the
types of facilities that can be used for purposes of a 72-hour
treatment and evaluation under the LPS Act and permits county
mental health directors to develop procedures for the
designation and training of professionals that carry out
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functions related to 72-hour holds.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
California State Association of Counties
California Mental Health Directors Association
Disability Rights California (to pre-amended version only)
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334