BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 436


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          Date of Hearing:  March 24, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 436  
          (Jones) - As Amended March 9, 2015


                                  PROPOSED CONSENT


          SUBJECT:   conservatorS DEMENTIA POWERS: APPOINTMENT OF COUNSEL


          KEY ISSUE:  IN ORDER TO ELIMINATE ANY AMBIGUITY, SHOULD A JUDGE  
          BE REQUIRED TO CLARIFY WHETHER COUNSEL, APPOINTED FOR A  
          PROCEEDING TO DETERMINE WHETHER A CONSERVATOR SHOULD BE GRANTED  
          SPECIAL DEMENTIA POWERS, BE RETAINED OR DISCHARGED AFTER THE  
          DEMENTIA POWERS DECISION IS MADE?


                                      SYNOPSIS


          This non-controversial bill, sponsored by the Conference of  
          California Bar Associations, seeks to clarify how long an  
          appointed counsel represents a conservatee for whom the  
          conservator seeks special dementia powers.  In a typical  
          conservatorship, a conservator may not confine the conservatee  
          to a locked facility or administer certain medications.  A court  
          can grant these additional dementia powers to a conservator only  
          after a hearing where the conservatee is represented by counsel.  
           This bill requires the court, in those proceedings, to clarify  
          how long the appointed counsel represents the conservatee after  








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          the dementia powers decision is made.  This bill has no known  
          opposition.


          SUMMARY:  Requires the court to specify whether an attorney  
          representing a conservatee continues in that role after the  
          court considers a petition seeking special dementia powers for  
          the conservator.  Specifically, this bill requires the court,  
          upon granting or denying special dementia powers to a  
          conservator, to discharge the court-appointed attorney or order  
          continued representation, as provided.


          EXISTING LAW:  


          1)Allows the court to appoint a conservator to act on behalf of  
            a person who is unable to adequately provide for his or her  
            personal needs (a conservator of the person) or incapable of  
            managing his or her property or other financial assets (a  
            conservator of the estate).  Requires the court investigator  
            to personally interview the proposed conservatee prior to the  
            hearing and make specified determinations.  (Probate Code  
            Section 1800 et seq.  Unless stated otherwise, all further  
            statutory references are to that code.) 


          2)Permits the court to appoint an attorney to represent a  
            conservatee or proposed conservatee if the court determines  
            that the conservatee or proposed conservatee is not otherwise  
            represented by counsel and appointment would be helpful in  
            resolving matters or is necessary to protect the interest of  
            the conservatee or proposed conservatee.  (Section 1470.)  


          3)Sets out the powers and duties generally of a conservator of  
            the person.  Specifically prohibits a conservatee form being  
            placed in a mental health treatment facility or from being  
            administered experimental drugs, except as provided.   








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            (Sections 2350 et seq. and 2356.)


          4)Allows a conservator to seek special powers for a conservatee  
            with dementia, including the ability to place the conservatee  
            in a secured residential care facility and administer certain  
            drugs, as specified.  Before the court may consider a petition  
            for these special powers, requires that, among other things,  
            the conservatee be represented by counsel.  (Section 2356.5.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  This bill, sponsored by the Conference of California  
          Bar Associations, seeks to clarify how long an appointed counsel  
          represents a conservatee for whom the conservator seeks special  
          dementia powers.  In a typical conservatorship, a conservator  
          may not confine the conservatee to a locked facility or  
          administer certain medications.  A court can grant these  
          additional dementia powers to a conservator only after a hearing  
          where the conservatee is represented by counsel.  This bill  
          requires the court, in those proceedings, to clarify how long  
          the appointed counsel represents the conservatee.


          In support of the bill, the author writes:


               AB 436 removes the uncertainty that currently plagues  
               counsel who have been appointed by the court to represent  
               conservatees in dementia powers cases once those powers  
               have been granted or denied, and provides needed guidance  
               to  the courts as to the intent of the legislature  
               regarding  the scope of the appointment of counsel  
               currently required [].   Absent a court order either  
               directing them to continue or dismissing them,  
               court-appointed attorneys (CAAs) in dementia powers cases  








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               are on the horns of an ethical and legal dilemma once the  
               hearing has been held and powers granted or denied.   
               Attorneys are concerned that if they do nothing, they could  
               be subject to discipline for client abandonment or possibly  
               malpractice.  On the other hand, if they proceed as if they  
               are still functioning as counsel - e.g., checking in on the  
               client and/or preparing a report - their actions can be  
               subject to resentment and challenge by the conservator  
               and/or the family, contending that it was only done to  
               generate fees for the attorney.   Without greater clarity,  
               the Courts must also speculate as to the legislative intent  
               regarding the scope of the appointment, and whether it is  
               to terminate at the end of the appointment hearing or  
               continue for monitoring.  This uncertainty may have  
               fostered an assumption in some courts that they are  
               continuing appointments, and in others that they are meant  
               to terminate.  


          Types of Conservatorships: A probate judge may appoint a  
          conservator to act on behalf of a person who is unable to  
          adequately provide for his or her personal needs (a "conservator  
          of the person") or incapable of managing his or her property or  
          other financial assets (a "conservator of the estate").   
          (Section 1800 et seq.)  The Probate Code also offers a "limited  
          conservatorship" for "developmentally disabled adults," under  
          which the court limits the conservator's power so as to preserve  
          the maximum amount of independence and self-sufficiency for the  
          conservatee.  (Section 1801(d).)  In addition, the  
          Lanterman-Petris-Short (LPS) Act created a special adult  
          conservatorship for persons who were considered "gravely  
          disabled" by reason of mental illness or chronic alcoholism and  
          subject to confinement in a locked psychiatric facility and  
          administration of psychotropic medication, subject to more  
          extensive oversight than a probate conservatorship.  (Welfare &  
          Institutions Code Section 5330 et seq.)  


          Conservatorship with Special Dementia Powers:  In 1996, the  








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          Legislature created an alternative to the LPS conservatorship  
          for people with dementia.  AB 1481 (Mellow), Chap. 910, Stats.  
          1996, allows a conservator under a Probate Code conservatorship  
          to seek special powers to confine a conservatee with dementia in  
          a "secured perimeter" residential care facility and to  
          administer medication for dementia if various conditions,  
          designed to protect the conservatee, are met.  These conditions  
          include the appointment of an attorney to represent the  
          conservatee during the court's consideration of the  
          conservator's petition for the dementia powers.


          This Bill Seeks to Clarify How Long Appointed Counsel Serves:   
          Under current law, while an attorney is required to represent a  
          conservatee during the conservator's petition for dementia  
          powers, it is unclear if the attorney will continue the  
          representation after the petition is decided.  This bill simply  
          requires the court, after the petition seeking dementia powers  
          is decided, to either discharge the attorney or order the  
          continuation of such representation.  It does not require such  
          continuing representation, but gives the court the discretion to  
          decide whether to require that counsel be retained.  The bill  
          does require that the decision about whether or not to continue  
          the representation be based on the existing statutory  
          constraint, which permits a court to appoint counsel if  
          appointment either would be helpful in resolving matters or is  
          necessary to protect the interest of the conservatee.


          REGISTERED SUPPORT / OPPOSITION:




          Support












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          Conference of California Bar Associations (sponsor)




          Opposition


          None on file




          Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334