BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 196| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: SB 196 Page 2 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. SB 196 Page 3 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. SB 196 Page 4 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. SB 196 Page 5 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. SB 196 Page 6 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 SB 196 Page 7 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. SB 196 Page 8 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 SB 196 Page 9 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 SB 196 Page 10 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 **** END ****