BILL ANALYSIS                                                                                                                                                                                                    

                                                                       AB 436

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          436 (Jones)

          As Amended  March 9, 2015

          Majority vote

          |Committee       |Votes |Ayes                |Noes                |
          |Judiciary       |10-0  |Mark Stone, Wagner, |                    |
          |                |      |Alejo, Chau, Chiu,  |                    |
          |                |      |Cristina Garcia,    |                    |
          |                |      |Gallagher, Holden,  |                    |
          |                |      |Maienschein,        |                    |
          |                |      |O'Donnell           |                    |

          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.  


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          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.  

          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.  

          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.  

          FISCAL EFFECT:  None

          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:


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               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 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").  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.  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  


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          subject to confinement in a locked psychiatric facility and  
          administration of psychotropic medication, subject to more  
          extensive oversight than a probate conservatorship.  

          Conservatorship with Special Dementia Powers:  In 1996, the  
          Legislature created an alternative to the LPS conservatorship for  
          people with dementia.  AB 1481 (Mellow), Chapter 910, Statutes of  
          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.

          Analysis Prepared by:    Leora Gershenzon / JUD. / (916) 319-2334  
          FN: 0000106


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