AB 436, as amended, Jones. Guardian or conservator: powers and duties.
Existing law provides that, upon a court’s findings that a conservatee has dementia, as defined, and a functional impairment, a conservator may place the conservatee in a prescribed secured residential or nursing facility and authorize the administration of prescribed medications appropriate for the care and treatment of dementia. A petition for authority to act under these provisions requires, among other things, that the conservatee be represented by an attorney, as provided.
This bill would require the court, upon granting or
begin delete denial ofend delete that authority to a conservator, to either discharge the attorney or order continuation of the representation.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 2356.5 of the Probate Code is amended
(a) The Legislature hereby finds and declares:
P2 1(1) That people with dementia, as defined in the last published
2edition of the “Diagnostic and Statistical Manual of Mental
3Disorders,” should have a conservatorship to serve their unique
4and special needs.
5(2) That, by adding powers to the probate conservatorship for
6people with dementia, their unique and special needs can be met.
7This will reduce costs to the conservatee and the family of the
8conservatee, reduce costly administration by state and county
9government, and safeguard the basic dignity and rights of the
11(3) That it is the intent of the Legislature to recognize that the
12administration of psychotropic medications has been, and can be,
13abused by caregivers and, therefore, granting powers to a
14conservator to authorize these medications for the treatment of
15dementia requires the protections specified in this section.
16(b) Notwithstanding any other law, a conservator may authorize
17the placement of a conservatee in a secured perimeter residential
18care facility for the elderly operated pursuant to Section 1569.698
19of the Health and Safety Code, and which has a care plan that
20meets the requirements of Section 87705 of Title 22 of the
21California Code of Regulations, upon a court’s finding, by clear
22and convincing evidence, of all of the following:
23(1) The conservatee has dementia, as
defined in the last
24published edition of the “Diagnostic and Statistical Manual of
26(2) The conservatee lacks the capacity to give informed consent
27to this placement and has at least one mental function deficit
28pursuant to subdivision (a) of Section 811, and this deficit
29significantly impairs the person’s ability to understand and
30appreciate the consequences of his or her actions pursuant to
31subdivision (b) of Section 811.
32(3) The conservatee needs or would benefit from a restricted
33and secure environment, as demonstrated by evidence presented
34by the physician or psychologist referred to in paragraph (3) of
36(4) The court finds that the proposed placement in a locked
37facility is the least restrictive placement appropriate to the needs
38of the conservatee.
39(c) Notwithstanding any other law, a conservator of a person
40may authorize the administration of medications appropriate for
P3 1the care and treatment of dementia, upon a court’s finding, by clear
2and convincing evidence, of all of the following:
3(1) The conservatee has dementia, as defined in the last
4published edition of the “Diagnostic and Statistical Manual of
6(2) The conservatee lacks the capacity to give informed consent
7to the administration of medications appropriate to the care of
8dementia, and has at least one mental function deficit pursuant to
9subdivision (a) of Section 811, and this deficit or deficits
10significantly impairs the person’s ability to understand and
11appreciate the consequences of his or her actions pursuant to
12subdivision (b) of Section 811.
13(3) The conservatee needs or would benefit from appropriate
14medication as demonstrated by evidence presented by the physician
15or psychologist referred to in paragraph (3) of subdivision (f).
16(d) Pursuant to subdivision (b) of Section 2355, in the case of
17a person who is an adherent of a religion whose tenets and practices
18call for a reliance on prayer alone for healing, the treatment
19required by the conservator under subdivision (c) shall be by an
20accredited practitioner of that religion in lieu of the administration
22(e) A conservatee who is to be placed in a facility
23this section shall not be placed in a mental health rehabilitation
24center as described in Section 5675 of the Welfare and Institutions
25Code, or in an institution for mental disease as described in Section
265900 of the Welfare and Institutions Code.
27(f) A petition for authority to act under this section is governed
28by Section 2357, except:
29(1) The conservatee shall be represented by an attorney pursuant
30to Chapter 4 (commencing with Section 1470) of Part 1. Upon
begin delete denial ofend delete authority to a conservator under
begin delete subdivisions (b) or (c)end delete, the court shall discharge the
33attorney or order the continuation of the legal representation.
36(2) The conservatee shall be produced at the hearing, unless
37excused pursuant to Section 1893.
38(3) The petition shall be supported by a declaration of a licensed
39physician, or a licensed psychologist within the scope of his or her
40licensure, regarding each of the findings required to be made under
P4 1this section for any power requested, except that the psychologist
2has at least two years of experience in diagnosing dementia.
3(4) The petition may be filed by any of the persons designated
4in Section 1891.
5(g) The court investigator shall annually investigate and report
6to the court every two years pursuant to Sections 1850 and 1851
7if the conservator is authorized to act under this section. In addition
8to the other matters provided in Section 1851, the conservatee shall
9be specifically advised by the investigator that the conservatee has
10 the right to object to the conservator’s powers granted under this
11section, and the report shall also include whether powers granted
12under this section are warranted. If the conservatee objects to the
13conservator’s powers granted under this section, or the investigator
14determines that some change in the powers granted under this
15section is warranted, the court shall provide a copy of the report
16to the attorney of record for the conservatee. If no attorney has
17been appointed for the conservatee, one shall be appointed pursuant
18to Chapter 4 (commencing with Section 1470) of Part 1. The
19attorney shall, within 30 days after receiving this report, do one
20of the following:
21(1) File a petition with the court regarding the status of the
23(2) File a written report with the court stating that the attorney
24has met with the conservatee and determined that the petition
25would be inappropriate.
26(h) A petition to terminate authority granted under this section
27shall be governed by Section 2359.
28(i) Nothing in this section shall be construed to affect a
29conservatorship of the estate of a person who has dementia.
30(j) Nothing in this section shall affect the laws that would
31otherwise apply in emergency situations.
32(k) Nothing in this section shall affect current law regarding the
33power of a probate court to fix the residence of a conservatee or
34to authorize medical treatment for any conservatee who has not
35been determined to have dementia.