BILL ANALYSIS Ó
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
AB 436
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Conference of California Bar Associations (sponsor)
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334