BILL ANALYSIS Ó
SB 196
Page 1
Date of Hearing: June 23, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
196 (Hancock) - As Amended June 15, 2015
As Proposed to be Amended
SENATE VOTE: 38-0
SUBJECT: Elder abuse: protective orders
KEY ISSUE: Should a county adult protective services agency,
like a conservator or guardian ad litem, be authorized to seek a
protective order on behalf of an abused elder or dependent
adult?
SYNOPSIS
Existing law permits a court to issue a protective order
restrain a person from committing, or continuing to commit,
physical or financial abuse against an elder or dependent adult.
Existing law authorizes a conservator or trustee,
attorney-in-fact with power of attorney, or a person appointed
as a guardian ad litem to file a petition for a protective order
on behalf of the elder or dependent adult. This bill would
additionally authorize a county adult protective services (APS)
SB 196
Page 2
agency to file such a petition on behalf of an elder or
dependent adult, so long as the APS agency shows either of the
following: the elder or dependent adult has suffered abuse and
has impaired ability to understand or appreciate the conditions
that place him or her at risk; or the elder or dependent adult
has provided written authorization for the APS agency to act on
his or her behalf. The bill is sponsored by the County Welfare
Directors Association (CWDA), which contends that little can be
done under existing law to restrain a perpetrator while a
conservatorship is being sought. This bill, CWDA believes,
fills that gap between the time when a conservatorship is sought
and when it is ordered. California Advocates for Nursing Home
Reform (CANHR) opposed an earlier version of this bill on the
grounds that it might subject an elder or dependent adult to
determinations of incapacity without sufficient evidence.
However, the most recent amendments to the bill have removed
CANHR's opposition. Although Legal Assistance for the Elderly
(LAE), a nonprofit advocacy group, does not oppose this bill, it
has nonetheless expressed concern that the bill may
unintentionally lower the threshold for obtaining a protective
order, which could deny due process to both the subject of the
protective order and the elder or dependent adult. As detailed
in the analysis, the author will take amendments in this
Committee to address that concern. The summary and analysis
below reflects those amendments. The bill is supported by
associations representing local social service agencies and
professionals, labor groups, and the Congress of California
Seniors.
SUMMARY: Authorizes a county adult protective services agency
to file a petition for a protective order on behalf of an elder
or dependent adult, as specified. Specifically, this bill:
1)Recasts the definition of "abuse of an elder or dependent
adult" in order to distinguish "financial abuse" and define it
in accord with an existing statute.
SB 196
Page 3
2)Authorizes a county adult protective services (APS) agency to
file a petition for a protective order on behalf of an elder
or dependent adult in either of the following circumstances:
a) 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.
b) The elder or dependent adult has provided written
authorization to a county APS agency to act on his or her
behalf.
3)Specifies that the APS agency shall be subject to any
confidentiality restrictions that otherwise apply to its
activities and shall disclose only those facts that are
necessary to establish reasonable cause for the filing of the
petition, including to establish the agency's belief that the
elder or dependent adult has suffered abuse and has impaired
ability to appreciate and understand the circumstances that
place him or her at risk, and as may be requested by the
court.
4)Provides that when an APS agency files a petition for a
protective order on behalf of an elder or dependent adult, all
of the following apply:
a) Upon the filing of the petition for a protective order,
the elder or dependent adult on whose behalf the petition
is filed shall receive a copy of the petition, a notice of
the hearing, and any declarations submitted in support of
the petition at least five days before the hearing, unless
the court shortens the time, as specified.
SB 196
Page 4
b) The APS agency shall make reasonable efforts to assist
the elder or dependent adult to attend the hearing and
provide testimony to the court.
c) Upon issuance of an order granting the petition, the APS
agency shall take all reasonable steps to provide for the
safety of the elder or dependent adult, as specified.
5)Requires, except as otherwise provided, that the APS agency's
petition for a protective order, and the court's issuance and
execution of the order, comply with same requirements that
govern a petition filed by a conservator, attorney-in-fact,
guardian ad litem, or other person legally authorized to seek
the protective order under existing law.
EXISTING LAW:
1)Permits a court to issue a protective order to prevent the
abuse of an elder or depedent adult and authorizes a
conservator or trustee, attorney-in-fact, or guardian ad litem
to file a petition for a protective order on behalf of the
elder or dependent adult. (Welfare & Institutions Code
Section 15657.03 (a). All other section references are to the
Welfare & Insitutions Code, unless otherwise specified.)
2)Defines "protective order," for purposes of the above, to mean
an order that includes any of the following restraining
orders: an order enjoining a party from engaging in specified
forms of abuse, harassment, and intimidation; an order
excluding a party from the elder's or dependent adult's
residence as specified; any other order that the court deems
necessary to effectuate the protective order. (Section
SB 196
Page 5
15657.03 (b).)
3)Provides that the protective orders described above may be
issued, with or without notice, if the declaration shows, to
the satisfaction of the court, reasonable proof of a past act
or acts of abuse of the elder or dependent adult. (Section
15657.03 (c).)
4)Permits the petitioner, upon the filing of the petition, to
obtain a temporary restraining order, as specified. However,
the court may issue an ex parte order excluding a party from
the petitioner's residence only upon specified showings.
(Section 15657.03 (d).)
5)Establishes procedures and timeframes for serving notice,
setting and conducting hearings, and issuing and executing
protective orders for the protection of elders and dependent
adults. (Section 15657.03 (e)-(o).)
6)Specifies that parties may be represented by counsel and
entitles the prevailing party to court costs and attorney's
fees, if any. (Section 15657.03 (p)-(s).)
7)Restricts the person who is subject to the protective order
from possessing or obtaining firearms and provides for
punishment for any willful disobedience of the protective
order. (Section 15647.03 (t)-(u).)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This bill, sponsored by the County Welfare Directors
SB 196
Page 6
Association (CWDA), authorizes a county Adult Protective
Services (APS) agency to seek a protective order on behalf of an
elder or dependent adult if there is reason to believe that the
elder or dependent adult has suffered abuse and has an impaired
ability to fully appreciate or understand the circumstances
creating the risk of abuse. The author and CWDA are especially
concerned about a "gap" that existing law creates between the
time when a probate conservatorship is initiated and the time
when a conservator is appointed. Allowing APS to directly
petition the court for a protective order would allow the court
to restrain ongoing abuse while the conservatorship petition is
investigated.
Limitations in Existing Law. Existing law permits a court to
issue a protective order to restrain a person from committing,
or continuing to commit, physical or financial abuse against an
elder or dependent adult. Existing law authorizes a conservator
or trustee, attorney-in-fact with power of attorney, or a person
appointed as a guardian ad litem to file a petition for a
protective order on behalf of the elder or dependent adult.
Because APS agencies are not expressly authorized to petition
for protective orders under existing law, they must use some
other means to seek protection of an elder or dependent who is a
victim of physical or financial abuse. According to the author
and sponsor, however, existing options fall short in a number of
ways. For example, APS could seek an "Emergency" Protective
Order (EPO), but these orders are time-limited (usually five
days) and designed to prevent physical harm or abuse, usually in
cases of domestic violence. They are not, therefore,
well-adapted to the unique issues of elder and dependent adult
abuse cases, which can but do not necessarily involve violence
and physical abuse. A temporary restraining order (TRO) could
potentially enjoin non-physical forms of abuse, but, according
to the author, the TRO process generally assumes that the victim
is able to initiate the request.
Other options that are available to an APS agency include
SB 196
Page 7
seeking appointment of a temporary conservator, or a guardian ad
litem. Both the temporary conservator and the guardian ad litem
would have the authority to seek a protective order. However,
according to the author and sponsor, seeking such an appointment
would be an additional and time-consuming step that would
necessarily frustrate the time-sensitive efforts of APS staff to
fill the gap while the conservatorship is sought. Moreover,
some of these alternatives - especially a conservatorship - may
impose greater restrictions on the victim's freedom than
necessary.
In order to overcome these existing limitations, this bill would
allow an APS agency to obtain a protective order in more or less
the same manner in which other authorized persons may currently
file a petition for a protective order on behalf of an elder or
dependent adult. Under existing law, the abuse victim's
conservator or trustee, attorney-in-fact, guardian ad litem, or
"other person legally authorized to seek relief" may obtain a
protective order on behalf of the elder or dependent adult if it
can show "to the satisfaction of the court, reasonable proof of
a past act or acts of abuse of the petitioning elder or
dependent adult." (Note: Although the authorized person files
the petition, the elder or dependent adult on whose behalf it is
filed is still considered to be the "petitioner.") This bill
would allow the APS agency to file a petition in a substantially
similar manner, so long as it could provide evidence supporting
the agency's belief that the elder has suffered abuse and has an
impaired ability to appreciate and understand the circumstances
that place him or her at risk. As is the case for existing
petitions for protective orders, a court could request
additional evidence as it deems necessary.
Additional Protections for Elders and Dependent Adults. When a
conservator or guardian ad litem files a petition for a
protective order, certain findings have necessarily already been
made about the capacity of the elder or dependent adult in prior
proceedings appointing the conservator or guardian ad litem.
SB 196
Page 8
However, this will not necessarily be the case when an APS
agency files a petition. Therefore, the author has
appropriately imposed a few additional requirements when an APS
agency files a petition so that the elder or dependent adult
will have notice and an opportunity to be heard. Specifically,
when an APS agency files a petition, this bill requires that
elder or dependent adult on whose behalf the petition is filed
receive a copy of the petition, a notice of the hearing, and any
declarations submitted in support of the petition. This
information must be provided to the elder or dependent adult at
least five days before the hearing, unless the court permits a
shorter period. In addition, the APS agency must make
reasonable efforts to assist the elder or dependent adult to
attend the hearing and provide testimony, if he or she wishes to
do so. If the elder or dependent adult does not attend the
hearing, the agency must explain to the court why the elder or
dependent adult is not in attendance. Finally, upon issuance of
the order, the APS agency must take reasonable steps to provide
for the safety of the elder or dependent adult, as specified.
Concerns about Possible Ambiguity Regarding Showings Required
for a Protective Order: As noted above, the overall purpose of
this bill is to give an APS agency the authority to seek a
protective order in substantially the same manner that a
conservator, trustee, attorney-in-fact, and a guardian ad litem
may seek a protective order under existing law. For the most
part, this bill does that - requiring the APS to establish the
same criteria and follow the same procedures set forth in
existing law. However - as noted in a letter of concern
submitted by the San Francisco-based Legal Assistance for the
Elderly, Inc. (LAE) - the bill in print could unintentionally
make it easier for an APS agency to obtain a protective order.
Specifically, under subdivision (c) of Section 15657.03 of the
Welfare & Institutions Code, a protective order may only be
issued if the petitioner's declaration shows, to the
satisfaction of the court, "reasonable proof of a past act or
acts of abuse of the petitioning elder or dependent adult."
However, under the bill in print, the APS agency - but none of
SB 196
Page 9
the other persons authorized to file a petition - could bring a
petition if there were "reasonable cause to believe an elder or
dependent adult is in imminent danger of becoming" a victim of
elder or dependent adult abuse. In other words, an APS agency
could obtain a protective order based on the prospective danger
that abuse will occur, while existing law requires a showing
that some abuse has already occurred, or is presently occurring.
One could argue that subdivision (c) would still require a
showing of a "past act or acts," but the seeming contrary
language in proposed sub-paragraph (3)(A)(i) in subdivision (a)
would, at the very least, create confusion. As noted below, the
author will accept amendments in this committee to eliminate
this confusion.
Proposed Author Amendments: In order to clarify the author's
intent to allow an APS agency to seek a protective order, but
not to alter the evidentiary requirements for obtaining such an
order, the author will take the following amendments in this
Committee:
- On page 10 delete lines 20-25 and re-letter accordingly.
- On page 11 line 5 delete "is in imminent danger or"
ARGUMENTS IN SUPPORT: According to CWDA, the sponsor, this
measure will give "the county APS agencies . . . an important
tool to help stop abuse of elder and dependent adults while a
conservatorship is being sought but is not yet in place." CWDA
argues that other existing remedies available to APS agencies -
such as seeking an emergency protective order, temporary
conservatorship, or appointment as guardian ad litem - require
an additional and time-consuming step in cases where time is
often of the essence. CWDA believes that the work of APS
agencies "will be improved if we can arrest the abuse and
SB 196
Page 10
neglect more rapidly and thus help them [elders and dependent
adults] avoid more abuse and neglect and remain healthier and/or
retain more of their assets." CWDA adds that this bill will
protect the rights and interests of the elder and dependent
adult by providing "notice to the individual on whose behalf the
order is filed" and requiring the agency to assist the
individual in attending the hearing. This will ensure that
"these protective orders are not being sought unnecessarily."
Many other local agencies and social welfare professionals
support SB 196 for similar reasons. For example, the California
State Association of Counties writes that existing law "does not
specifically reference the county adult protective services
agency as an entity that can initiate a petition, even if a
conservatorship is being sought. Many victims are unable to
adequately advocate on their own behalf, but have not yet been
conserved. SB 196 would enable adult protective services staff
to adequately protect victims of elder and dependent abuse."
The California Association of Public Authorities for In-Home
Supportive Services (CAPA-IHSS) argues that existing remedies,
such as initiating a criminal action or seeking a
conservatorship, can take weeks, "and the abuse may continue in
the meantime." This bill, however, "will enable the county APS
to intervene to stop the abuse or neglect that is occurring
while the conservatorship is put in place."
The California School Employees Association adds that the
possibility that APS would abuse its authority is mitigated by
the fact that a "court would still have to review the facts of
the case and approve or deny that request for the order. This
oversight offers a necessary check and balance."
REGISTERED SUPPORT / OPPOSITION:
SB 196
Page 11
Support
County Welfare Directors Association of California (sponsor)
American Federation of State, County, and Municipal Employees
California Association for Health Services at Home
California Association of Public Authorities for In-Home
Supportive Services (IHSS)
California Commission on Aging
California Communities United Institute
California District Attorneys Association
California Police Chiefs Association
California School Employees Association
California State Association of Counties
Congress of California Seniors
LIUNA Locals 777 and 792
SB 196
Page 12
National Association of Social Workers, California Chapter
Santa Clara County Board of Supervisors
The Arc and United Cerebral Palsy California Collaboration
Urban Counties Caucus
Concern
Legal Assistance for the Elderly, Inc.
Opposition
None on file
Analysis Prepared by:Thomas Clark / JUD. / (916)
319-2334
SB 196
Page 13