BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 436|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
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                                   THIRD READING 


          Bill No:  AB 436
          Author:   Jones (R)
          Amended:  3/9/15 in Assembly
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  7-0, 6/16/15
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

           ASSEMBLY FLOOR:  78-0, 4/9/15 - See last page for vote

           SUBJECT:   Guardian or conservator: powers and duties


          SOURCE:    Conference of California Bar Associations


          DIGEST:  This bill requires a court, upon granting or denying  
          authority to a conservator for the placement of a conservatee in  
          a secured 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.


          ANALYSIS:   


          Existing law:


           1) Authorizes a court to appoint a conservator to act on behalf  
             of a person who is unable to adequately provide for his or  








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             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).

           2) 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, and requires specified information to be  
             included in the petition.

           3) Authorizes a court, upon a showing of good cause, to appoint  
             a temporary conservator or guardian to serve pending the  
             appointment of a permanent conservator or guardian.  

           4) Provides, unless the court orders otherwise, 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.

           5) 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.

           6) 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.

           7) Requires, if a person is furnished legal counsel, 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, include compensation for services  
             rendered, and expenses incurred, before the date of the order  
             appointing counsel.

           8) Provides that, if the conservatee requires medical treatment  
             for an existing or continuing medical condition which is not  







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             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.

           9) 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:  a) the  
             conservatee has dementia, as defined; b) the conservatee  
             lacks the capacity to give informed consent to this placement  
             and has at least one mental function deficit, and this  
             deficit significantly impairs the person's ability to  
             understand and appreciate the consequences of his or her  
             actions; c) 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 d) the court finds that the proposed placement  
             in a locked facility is the least restrictive placement  
             appropriate to the needs of the conservatee.

           10)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:  a) the  
             conservatee has dementia, as defined; b) 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 c) the conservatee needs or would benefit  
             from appropriate medication as demonstrated by evidence  
             presented by the physician or psychologist.

           11)Requires that the conservatee be represented by an attorney  
             during proceedings for the conservator's petition for  
             authority to act regarding secured facility placement or  
             dementia medication administration.

          This bill requires, upon granting or denying authority to a  
          conservator to place the conservatee in a secured RCFE or  







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          administer dementia medications, the court to discharge the  
          conservatee's attorney or order the continuation of the legal  
          representation.

          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 unsecured  
          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  
          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 requires a court, upon  







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          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.

          Comments


          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.  
            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.
          
          Prior Legislation







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          AB 2747 (Committee on Judiciary, Chapter 913, Statutes of 2014)  
          corrected,  among other things, 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 facility which specializes in the care and treatment of  
          people with dementia.

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

          AB 1172 (Kaloogian, Chapter 724, Statutes of 1997) authorized,  
          among other things, 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 an RCFE  
          or for the administration of medications for the care of  
          dementia.

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

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/18/15)


          Conference of California Bar Associations (source)


          OPPOSITION:   (Verified6/18/15)


          Coalition for Elder and Dependent Adult Rights
          National Association to Stop Guardian Abuse
          Nine individuals


          ARGUMENTS IN SUPPORT:     The Conference of California Bar  
          Associations (CCBA) notes that this bill is the result of a  
          bench-bar working group in San Diego, in response to concerns  







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          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."  Further, 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.


          ARGUMENTS IN OPPOSITION:       The opposition argues that this  
          bill does not solve the real problem that courts do not have  
          written fee agreements with attorneys appointed by courts to  
          represent conservatee interests.  The opposition requests that  
          this bill be amended to instead require court-appointed  
          attorneys to adhere to the written fee agreement requirements  
          under the Business and Professions Code.  

          ASSEMBLY FLOOR:  78-0, 4/9/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Campos, Chang, Chau,  
            Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,  
            Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,  
            Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,  
            Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,  
            Melendez, Mullin, Nazarian, Obernolte, Olsen, Patterson,  
            Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,  
            Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,  
            Waldron, Weber, Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Calderon, O'Donnell







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          Prepared by:Tara Welch / JUD. / (916) 651-4113
          6/19/15 14:55:57


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