BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 196|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: SB 196
Author: Hancock (D), et al.
Amended: 5/19/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SUBJECT: Elder abuse: protective orders
SOURCE: County Welfare Directors Association of California
DIGEST: This bill, as of July 1, 2016, allows a petition for
issuance of a protective order to be brought by a county adult
protective services agency on behalf of an elder or dependent
adult if there is reasonable cause to believe the elder or
dependent adult is in imminent danger of becoming or has become
the victim of a crime, as specified, or who has suffered abuse,
as defined, and has an impaired ability to appreciate and
understand the circumstances that place the elder or dependent
adult at risk of harm. This bill also allows the county adult
protective services agency to file that petition if the elder or
dependent adult has provided written authorization for the
county adult protective services agency to act on his or her
behalf.
ANALYSIS:
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Existing law:
1) Authorizes, generally, courts to issue protective orders
in proceedings involving civil harassment, workplace and
postsecondary school site violence, domestic violence,
juvenile law, and elder or dependent adult abuse.
2) Provides, under the Elder Abuse and Dependent Adult Civil
Protection Act (EADACPA), civil protections and remedies for
victims of elder and dependent adult abuse and neglect.
3) Authorizes a petition to be brought on behalf of an abused
elder or dependent adult by a conservator or a trustee of
the elder or dependent adult, an attorney-in-fact of an
elder or dependent adult who acts within the authority of
the power of attorney, a person appointed as a guardian ad
litem for the elder or dependent adult, or other person
legally authorized to seek a protective order, as defined.
4) Provides that, upon filing a petition for protective
orders under EADACPA, the petitioner may obtain a temporary
restraining order, as specified, except to the extent a rule
is inconsistent. However, the court may issue an ex parte
order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
facts sufficient for the court to ascertain that the
party who will stay in the dwelling has a right under
color of law to possession of the premises;
that the party to be excluded has assaulted or
threatens to assault the petitioner, other named family or
household member of the petitioner, or a conservator of
the petitioner; and
that physical or emotional harm would otherwise result
to the petitioner, other named family or household member
of the petitioner, or a conservator of the petitioner.
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1) Authorizes the court to grant or deny a request for the
issuance of a temporary restraining order without notice on
the same day that the petition is submitted to the court,
unless the petition is filed too late in the day to permit
effective review, in which case the order shall be granted
or denied on the next day of judicial business in sufficient
time for the order to be filed that day with the clerk of
the court.
2) Requires, within 21 days, or, if good cause appears to the
court, 25 days, from the date that a request for a temporary
restraining order is granted or denied, a hearing to be held
on the petition. If no request for temporary orders is
made, the hearing shall be held within 21 days, or, if good
cause appears to the court, 25 days, from the date that the
petition is filed.
3) Authorizes the respondent to file a response that explains
or denies the alleged abuse, and authorizes the court, upon
notice and a hearing, to issue protective orders, as
specified, and authorizes the court, after notice and
hearing, to issue an order excluding a person from a
residence or dwelling if the court finds that physical or
emotional harm would otherwise result to the petitioner,
other named family or household member of the petitioner, or
conservator of the petitioner.
4) Makes it a crime for any person who knows or reasonably
should know that a person is an elder or dependent adult and
who, under circumstances or conditions likely to produce
great bodily harm or death, willfully causes or permits any
elder or dependent adult to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having
the care or custody of any elder or dependent adult,
willfully causes or permits the person or health of the
elder or dependent adult to be injured, or willfully causes
or permits the elder or dependent adult to be placed in a
situation in which his or her person or health is
endangered.
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5) Provides that if an elder or dependent adult abuse victim
is so incapacitated that he or she cannot legally give or
deny consent to protective services, a petition for
temporary conservatorship or guardianship may be initiated,
as specified.
6) Requires the public guardian to apply for appointment as
guardian or conservator of the person, the estate, or the
person and estate, if there is an imminent threat to the
person's health or safety or the person's estate.
This bill:
1) Authorizes a county adult protective services agency to
bring a petition for a protective order on behalf of an
elder or dependent adult in any of the following
circumstances:
if there is reasonable cause to believe an elder or
dependent adult is in imminent danger of becoming, or has
become the victim of a crime, as specified, and has an
impaired ability to appreciate and understand the
circumstances that place him or her at risk of harm;
if the elder or dependent adult has suffered abuse, as
defined, and has an impaired ability to appreciate and
understand the circumstances that place him or her at risk
of harm; or
if the elder or dependent adult has provided written
authorization to a county adult protective services agency
to act on his or her behalf.
1) Requires the county adult protective services agency to
also make a referral regarding temporary conservatorship of
the elder or dependent adult to the public guardian, as
specified, prior to or concurrent with the filing of the
petition.
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2) Makes a county adult protective services agency subject to
such confidentiality restrictions as otherwise apply to its
activities under law and authorizes the county adult
protective services agency to only disclose such facts as
necessary to establish reasonable cause for the filing of
the petition and as may be requested by the court in
determining whether to issue a protective order.
3) Requires, in a proceeding brought by a county adult
protective services agency, the elder or dependent adult on
whose behalf the petition has been filed to receive, at
least five days before the hearing, a copy of the petition,
a notice of the hearing, and any declarations submitted in
support of the petition, and authorizes the court, on motion
of the petitioner or on its own motion, to shorten the time
for provision of this information to the elder or dependent
adult.
4) Requires the adult protective services agency to make
reasonable efforts to assist the elder or dependent adult to
attend the hearing and provide testimony to the court, if he
or she wishes to do so, and, if the elder or dependent adult
does not attend the hearing, requires the agency to provide
information to the court at the hearing regarding the
reasons why the elder or dependent adult is not in
attendance.
5) Requires, upon the filing of a petition for a protective
order and upon issuance of an order granting the petition,
the county adult protective services agency to take all
reasonable steps, as specified, to provide for the safety of
the elder or dependent adult, which may include, but not be
limited to, locating alternative accommodations for the
elder or dependent adult if needed.
6) Revises the definition of "abuse of an elder or dependent
adult" to clarify that financial abuse does not require a
showing of resulting physical harm or pain or mental
suffering.
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7) Becomes operative on July 1, 2016, and requires the
Judicial Council to develop forms, instructions, and rules
to implement this bill.
Background
The California Legislature, in recognition of the need of
special protection for California's vulnerable elder and
dependent adult population, has enacted significant criminal and
civil protections for elders and dependent adults. In 1983, the
Legislature determined that crimes against dependent adults
deserved special consideration and established enhanced criminal
penalties against individuals who perpetrate crimes, including
great bodily harm, infliction of pain, endangerment, and false
imprisonment, against dependent adults. In 1986, the
Legislature extended these protections to elders.
In 1992, the Legislature enacted SB 679 (Mello, Chapter 774,
Statutes of 1991), which established the EADACPA. EADACPA
provides enhanced civil remedies to ensure adequate
representation of and protection for victims of elder or
dependent adult physical and financial abuse and neglect. These
laws authorize courts to issue protective orders against persons
engaging in violent, threatening, abusive, or harassing conduct
of an elder or dependent adult. EADACPA authorizes a petition
for a protective order to be filed on behalf of the elder or
dependent adult by a conservator, trustee, attorney-in-fact,
guardian ad litem, or other person legally authorized to act on
behalf of the elder or dependent adult.
This bill additionally authorizes a county adult protective
services agency to file a petition for a protective order on
behalf of the elder or dependent adult, as specified.
Comments
The author writes:
Current law authorizes certain entities to file for
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restraining orders on an individual's behalf, but it is not
clear whether [adult protective services (APS)] staff are
included in this authority, even if a conservatorship is being
sought for the individual who is the subject of the abuse.
Until a criminal case is filed, or a temporary conservatorship
is in place, county agencies must rely on protective orders
that are not adapted to the unique issues of adult abuse.
Those protective orders include an Emergency Protective Order
(EPO) or a restraining order (e.g.[, temporary restraining
order (TRO), or permanent restraining order (PRO)]. However,
those orders are mainly designed to prevent physical harm in
domestic violence or physical abuse. And in the case of
restraining orders, it presumes the victim has the ability to
initiate the request.
County APS agencies are not expressly identified in code as
entities that may file these protective orders, even if a
conservatorship is being sought for the individual who is the
subject of the abuse. SB 196 would address this gap in law.
Related/Prior Legislation
AB 1081 (Quirk, 2015), among other things, authorizes any party
to an elder or dependent adult protective order proceeding to
request a continuance of a hearing, as specified, and
automatically extends a temporary protective order until the end
of the continuance of the hearing. AB 1081 is pending
assignment in the Senate Rules Committee.
AB 494 (Maienschein, 2015), among other things, authorizes a
court, in concert with the issuance of an elder or dependent
adult protective order, to grant the petitioner exclusive care,
possession, or control of an animal owned, possessed, leased,
kept, or held by the petitioner, or residing in the residence or
household of the petitioner and orders the respondent to stay
away from the animal, as specified. AB 494 is currently in the
Senate Judiciary Committee.
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AB 2034 (Gatto, 2014) would have authorized a first-degree
relative to file a petition for a visitation order to enjoin a
respondent from keeping an elder or dependent adult (proposed
visitee) in isolation from contact with the petitioner. AB 2034
died in the Senate Rules Committee.
AB 454 (Silva, Chapter 101, Statutes of 2011) added due process
procedures regarding termination or modification of a protective
order issued under the EADACPA.
AB 1596 (Hayashi, Chapter 572, Statutes of 2009) enacted
recommendations from the Judicial Council's Protective Orders
Working Group for statutory procedural changes to the protective
orders statutes and provided clarity and consistency for
requests for protective orders.
AB 225 (Beall, Chapter 480, Statutes of 2008) provided that an
elder or dependent adult who petitions for a protective order
under the EADACPA is not required to pay a fee for law
enforcement to serve an order issued by the court.
SB 679 (Mello, Chapter 774, Statutes of 1991) - See Background.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified5/18/15)
County Welfare Directors Association (source)
AFSCME, AFL-CIO
California Association for Health Services at Home
California Association of Public Authorities for IHSS
California Commission on Aging
California Communities United Institute
California District Attorneys Association
California Police Chiefs Association
California School Employees Association, AFL-CIO
California State Association of Counties
Congress of California Seniors
Laborers' International Union of North America, Locals 777 and
792
National Association of Social Workers - California Chapter
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The Arc and United Cerebral Palsy California Collaboration
Urban Counties Caucus
OPPOSITION: (Verified5/18/15)
California Advocates for Nursing Home Reform
ARGUMENTS IN SUPPORT: The County Welfare Directors
Association (CWDA) (which represents county APS agencies) states
this bill seeks to provide an additional way for APS to protect
elders and dependent adults from imminent or continued physical
or financial abuse. According to CWDA, the investigation
process by APS and subsequent conservatorship filing by the
public guardian may take several weeks, during which the elder
or dependent adult may continue to be victimized by a third
party who is alleged to be physically or financially abusing the
elder or dependent adult. The author asserts that this bill
will enable the county APS agency to intervene to stop the abuse
or neglect that is occurring while a conservatorship for the
elder or dependent adult is under consideration by the public
guardian, protecting the health and well-being of the elder or
dependent adult as well as, in the case of financial abuse,
protecting their remaining assets.
ARGUMENTS IN OPPOSITION: California Advocates for Nursing
Home Reform (CANHR), in opposition, argues that this bill
permits county workers to base its action on its own, undefined
determination of the elder or dependent adult's incapacity, and
only allows restraining orders to be pursued if a
conservatorship is being sought, but that is also undefined.
CANHR is concerned that no information is provided to the elder
or dependent adult to advise him or her what to do after
receiving notice of the petition. CANHR also contends that
county workers have many tools under existing law to help elders
and dependent adults, one of which, seeking appointment as
guardian ad litem, accomplishes the same purpose as this bill.
Further, CANHR contends this bill does not protect an elder or
dependent adult from financial abuse when contact with the
victim is usually immaterial to the ability to victimize - a
restraining order will not prevent an abuser from transferring
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property, going to a bank, or manipulating accounts on-line to
their advantage.
Prepared by:Tara Welch / JUD. / (916) 651-4113
5/19/15 13:25:27
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