BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 436 (Jones)
          Version: March 9, 2015
          Hearing Date: June 16, 2015
          Fiscal: No
          Urgency: No
          TMW


                                        SUBJECT
                                           
                     Guardian or conservator:  powers and duties

                                      DESCRIPTION  

          This bill would require a court, upon granting or denying  
          authority to a conservator for the placement of a conservatee in  
          a residential care facility or administration of medications for  
          the care and treatment of dementia, to discharge the  
          court-appointed attorney or order the continuation of the legal  
          representation of the conservatee.

                                      BACKGROUND  

          In 1996, about 500,000 to 600,000 people in California suffered  
          from Alzheimer's disease or stroke-related dementia, which  
          placed them at risk for wandering away from unsecure residential  
          facilities and becoming lost.  At that time, many courts would  
          not grant a conservator the authority to place a dementia  
          patient in a secured facility, or to authorize administration of  
          psychotropic medications, unless a conservatorship under the  
          Lanterman-Petris-Short (LPS) Act was established, and renewed  
          yearly.

          An LPS conservatorship, among other things, is designed to  
          provide safeguards for persons who are deemed to be gravely  
          disabled as the result of a mental disorder who may, for some  
          period, require placement in a locked facility or administration  
          of psychotropic drugs.  The nature of these mental disorders is  
          such that, with the administration of the drugs, the patient's  
          condition may well improve.  In such instances, the patient's  








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          status needs to be reviewed periodically.  For this reason the  
          LPS conservatorship is required to be renewed every year. 

          Recognizing the need to allow a conservator to place a person  
          with dementia in a more appropriate secured facility and  
          authorize the administration of psychotropic medications which  
          permit management of patients with dementia in non-secure  
          facilities, the Legislature enacted  SB 1481 (Mello, Chapter  
          910, Statutes of 1996) to authorize a conservator to file a  
          petition to place a conservatee with dementia in an appropriate  
          secured facility and authorized the administration of  
          psychotropic medications, which permit management of patients  
          with dementia in non-secure facilities.  As part of that  
          process, a conservatee has the same rights to petition the court  
          to contest and terminate this authority as any other conservatee  
          has to contest and terminate a conservatorship, and the  
          conservatee must be represented by an attorney during that  
          process.

          In order to clarify for both the courts and the court-appointed  
          attorneys for conservatees, this bill would require a court,  
          upon granting or denying authority to a conservator for the  
          placement of a conservatee in a residential care facility or  
          administration of medications for the care and treatment of  
          dementia, to either discharge the court-appointed attorney or  
          order the continuation of the legal representation of the  
          conservatee.

                                CHANGES TO EXISTING LAW
           
           Existing law  authorizes a 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).  (Prob. Code Sec. 1800 et  
          seq.)

           Existing law authorizes a proposed conservatee, or spouse,  
          domestic partner, relative, friend of the conservatee, public  
          administrator, or other interested person to petition the court  
          for the appointment of a conservator of the proposed  
          conservatee.  Existing law requires specified information to be  
          included in the petition.  (Prob. Code Secs. 1820, 1821.)
             
          Existing law  authorizes a court, upon a showing of good cause,  







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          to appoint a temporary conservator or guardian to serve pending  
          the appointment of a permanent conservator or guardian.  Unless  
          the court orders otherwise, existing law provides the temporary  
          conservator or guardian with only those powers and duties that  
          are necessary to provide for temporary care of the conservatee  
          or ward and to preserve and protect the property of the  
          conservatee or ward from loss or injury.  (Prob. Code Sec. 2250  
          et seq.) 
           
            Existing law  requires a court, when determining the capacity of  
          a person to do a certain act or make a decision, including, but  
          not limited to, making medical decisions, to make that  
          determination based on evidence of a proposed conservatee's  
          deficit in at least one of a specified list of mental functions.  
           (Prob. Code Sec. 811(a).)

           Existing law  authorizes the court to appoint private legal  
          counsel for a conservatee or a proposed conservatee in any  
          proceeding if the court determines the person is not otherwise  
          represented by legal counsel and that the appointment would be  
          helpful to the resolution of the matter or is necessary to  
          protect the person's interests.  (Prob. Code Sec. 1470(a).)
           Existing law  , if a person is furnished legal counsel, requires  
          the court, upon conclusion of the matter, to fix a reasonable  
          sum for compensation and expenses of counsel, and the sum may,  
          in the court's discretion, including compensation for services  
          rendered, and expenses incurred, before the date of the order  
          appointing counsel. (Prob. Code Sec. 1470(b).)

           Existing law  provides that, if the conservatee requires medical  
          treatment for an existing or continuing medical condition which  
          is not otherwise authorized to be performed upon the  
          conservatee, and the conservatee is unable to give an informed  
          consent to this medical treatment, the conservator may petition  
          the court for an order authorizing the medical treatment and  
          authorizing the conservator to consent on behalf of the  
          conservatee to the medical treatment.  (Prob. Code Sec.  
          2357(b).)

           Existing law  allows a conservator to authorize the placement of  
          a conservatee in a secured perimeter residential care facility  
          for the elderly (RCFE) upon a court's finding, by clear and  
          convincing evidence, all of the following:  (1) the conservatee  
          has dementia, as defined; (2) the conservatee lacks the capacity  
          to give informed consent to this placement and has at least one  







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          mental function deficit, and this deficit significantly impairs  
          the person's ability to understand and appreciate the  
          consequences of his or her actions; (3) the conservatee needs or  
          would benefit from a restricted and secure environment, as  
          demonstrated by evidence presented by the physician or  
          psychologist, as specified; and (4) the court finds that the  
          proposed placement in a locked facility is the least restrictive  
          placement appropriate to the needs of the conservatee. (Prob.  
          Code Sec. 2356.5(b).)

           Existing law  allows a conservator of a person to authorize the  
          administration of medications appropriate for the care and  
          treatment of dementia, upon a court's finding, by clear and  
          convincing evidence, of all of the following:  (1) the  
          conservatee has dementia, as defined; (2) the conservatee lacks  
          the capacity to give informed consent to the administration of  
          medications appropriate to the care of dementia, and has at  
          least one mental function deficit, and this deficit or deficits  
          significantly impairs the person's ability to understand and  
          appreciate the consequences of his or her actions; and (3) the  
          conservatee needs or would benefit from appropriate medication  
          as demonstrated by evidence presented by the physician or  
          psychologist.  (Prob. Code Sec. 2356.5(c).)

           Existing law  requires that the conservatee be represented by an  
          attorney during proceedings for the conservator's petition for  
          authority to act regarding facility placement or dementia  
          medication administration.  (Prob. Code Sec. 2356.5(f)(1).)

           This bill , upon granting or denying authority to a conservator  
          to place the conservatee in a secured RCFE or administer  
          dementia medications, would require the court to discharge the  
          conservatee's attorney or order the continuation of the legal  
          representation.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            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.  







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            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.

            AB 436 requires the court, after the petition seeking dementia  
            powers is decided, to either discharge the attorney or order  
            the continuation of such representation.  The bill 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.
          
          2.  Clarifying termination or continuation of court-appointed  
            attorney representation of a conservatee  

          Although existing law authorizes a court to appoint an attorney  
          to represent the interests of a conservatee in proceedings for  
          the placement of the conservatee in a secured residential care  
          facility for the elderly (RCFE) or the administration of  
          dementia medications, the law does not specify when the  
          attorney's representation of the conservatee ends.  Accordingly,  
          this bill seeks to provide clarification of when the  
          court-appointed attorney's services ends or continues.

          Notably, following the granting of a petition to place the  
          conservatee in a secured RCFE or administration of dementia  
          medications to the conservatee, the court investigator is  
          required to annually investigate and report to the court every  
          two years.  (Prob. Code Sec. 2356.5(g).)  If the conservatee  
          objects to the conservator's continued powers granted in that  







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          petition, or the investigator determines that some change in the  
          powers granted in the petition proceeding is warranted, the  
          court is required to provide a copy of the court investigator's  
          report to the attorney of record for the conservatee.  (Id.)  If  
          no attorney has been appointed for the conservatee, an attorney  
          is required to be appointed and take several enumerated actions  
          on behalf of the conservatee.  (Id.)  If an attorney was  
          court-appointed during the initial petition, but has had no  
          contact with the conservatee or court following the granting of  
          the petition, the attorney may believe he or she is no longer  
          providing services to the conservatee.  Yet, under existing law,  
          that attorney may be called upon at any time following the  
          initial petition to continue representation of the conservatee.   
          As such, courts, court-appointed attorneys, conservators, and  
          conservatees may be uncertain as to when the court-appointed  
          attorney continues to represent the conservatee, years after the  
          initial petition, or no longer represents the conservatee after  
          the initial petition.

          The Conference of California Bar Associations (CCBA), sponsor,  
          notes that this bill is the result of a bench-bar working group  
          in San Diego, in response to concerns raised by attorneys in the  
          field and the uncertainty of the local judges regarding  
          court-appointed attorney responsibilities.  CCBA argues that  
          "Absent a court order either directing them to continue or  
          dismissing them, court-appointed attorneys . . . in dementia  
          powers cases are confronted with an ethical and legal dilemma  
          once the hearing has been held and powers granted or denied. If  
          they do nothing, attorneys are concerned they could be subject  
          to discipline for client abandonment or possibly malpractice.   
          Conversely, 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."   
          Accordingly, this bill seeks to provide clarification for the  
          court and interested parties by giving discretion to the court  
          to either discharge the attorney when dementia powers are  
          granted, or direct the court-appointed counsel to continue to  
          represent the conservatee's due process rights.

          3.  Opposition's concerns  

          The Coalition for Elder and Dependent Adult Rights (CEDAR),  
          opposed unless amended, argues that this bill would not solve  







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          the real problem that courts do not have written fee agreements  
          with attorneys appointed by courts to represent conservatee  
          interests.  CEDAR requests that the bill be amended to instead  
          require court-appointed attorneys to adhere to the written fee  
          agreement requirements under the Business and Professions Code.   
          In response, the author states that this bill addresses whether  
          appointed counsel is relieved of further duties or has further  
          obligations to the conservatee, which can only be answered after  
          the court has made its decision regarding the conservator's  
          dementia powers petition, and, therefore, cannot be reasonably  
          included in the terms of a contract under the Business and  
          Professions Code.



           Support  :  None Known

           Opposition  :  Coalition for Elder and Dependent Adult Rights

                                        HISTORY
           
           Source  :  Conference of California Bar Association

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 2747 (Committee on Judiciary, Chapter 913, Statutes of 2014)  
          among other things, corrected the cross-references to the  
          relevant California Code of Regulations requirements in the  
          petition for placement of a conservatee in a locked and secured  
          nursing facilities which specializes in the care and treatment  
          of people with dementia.

          AB 167 (Harman, Chapter 32, Statutes of 2003), among other  
          things, corrected the cross-reference to findings of dementia  
          under the petition for placement of a conservatee in a  
          residential care facility for the elder or for the  
          administration of medications for the care of dementia.

          AB 1172 (Kaloogian, Chapter 724, Statutes of 1997), among other  
          things, authorized a licensed psychologist to report his or her  
          findings of dementia in a declaration submitted with a  
          conservator's petition for placement of a conservatee in a  
          residential care facility for the elder or for the  







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          administration of medications for the care of dementia.

          SB 1481 (Mello, Chapter 910, Statutes of 1996) See Background.

           Prior Vote  :

          Assembly Floor (Ayes 78, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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