Existing law provides a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental disorder or an impairment by chronic alcoholism, and requires an officer, including a county public guardian or a county mental health program, to conduct a conservatorship investigation and render a written report to the court of his or her investigation. Under existing law, a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment for a gravely disabled person may recommend a conservatorship for that person, and the agency is required to disclose any records or information that may facilitate an investigation. Existing law requires the officer providing conservatorship investigation, when he or she concurs with the recommendation of the professional person or facility, to petition the superior court in the patients county of residence for a conservatorship. Existing law also provides for the establishment of a conservatorship for a person who is unable to properly provide for his or her personal needs or is substantially unable to manage his or her finances.

This bill would authorize the court, if a conservatorship has already been established under the Probate Code, and after a hearing attended by the conservatee, unless he or she waives presence, and the conservatees counsel, to order an investigation from the officer providing conservatorship investigation if the court, in consultation with a licensed physician or psychologist, as specified, providing comprehensive evaluation or intensive treatment, determines, in a specified proceeding, that the conservatee may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling to accept, or is incapable of accepting, treatment voluntarily. The bill would also require the court to appoint counsel to a conservatee if he or she cannot afford counsel. The bill would require the officer providing conservatorship investigation to petition the superior court in the patients county of residence to establish conservatorship if he or she concurs with the conservatorship investigation order of the court, and to file a copy of his or her report with the court. The bill would require a conservator to disclose any records or information that may facilitate the investigation. The bill would also make conforming changes.

By expanding the duties of the county officer providing conservatorship investigation, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental disorder or an impairment by chronic alcoholism alcoholism, and requires an officer, including a county public guardian or a county mental health program, to conduct a conservatorship investigation and render a written report to the court of his or her investigation. Under existing law, a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment for a gravely disabled person may recommend a conservatorship for that person, and the agency is required to disclose any records or information that may facilitate an investigation. Existing law requires the officer providing conservatorship investigation, when he or she concurs with the recommendation of the professional person or facility, to petition the superior court in the patients county of residence for a conservatorship. Existing law also provides for the establishment of a conservatorship for a person who is unable to properly provide for his or her personal needs or is substantially unable to manage his or her finances.

This bill would authorize the court, if a conservatorship has already been established under the Probate Code, and after a hearing attended by the conservatee, unless he or she waives presence, and the conservatees counsel, to order an investigation from, and to recommend a conservatorship to, from the officer providing conservatorship investigation if the court, in consultation with a licensed physician or psychologist, as specified, providing comprehensive evaluation or intensive treatment, determines, in a specified proceeding, that the conservatee may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling to accept, or is incapable of accepting, treatment voluntarily. The bill would also require the court to appoint counsel to a conservatee if he or she cannot afford counsel. The bill would require the officer providing conservatorship investigation to petition the superior court in the patients county of residence to establish conservatorship if he or she concurs with the recommendation conservatorship investigation order of the court, and to file a copy of his or her report with the court. The bill would require a conservator, if conservatorship is recommended by the court, conservator to disclose any records or information that may facilitate the investigation. The bill would also make conforming changes.

By expanding the duties of the county officer providing conservatorship investigation, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental disorder or an impairment by chronic alcoholism and requires an officer, including a county public guardian or a county mental health program, to conduct a conservatorship investigation and render a written report to the court of his or her investigation. Under existing law, a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment for a gravely disabled person may recommend a conservatorship for that person, and the agency is required to disclose any records or information that may facilitate an investigation. Existing law requires the officer providing conservatorship investigation, when he or she concurs with the recommendation of the professional person or facility, to petition the superior court in the patients county of residence for a conservatorship. Existing law also provides for the establishment of a conservatorship for a person who is unable to properly provide for his or her personal needs or is substantially unable to manage his or her finances.

This bill would authorize the court, if a conservatorship has already been established under the Probate Code Code, and after a hearing attended by the conservatee or the conservatees counsel, or both, conservatees counsel, to order an investigation from, and to recommend a conservatorship to to, the officer providing conservatorship investigation if the court, in consultation with a licensed physician or psychologist, as specified, providing comprehensive evaluation or intensive treatment, in a proceeding under the Probate Code determines, based on the evidence presented to the court, including medical evidence, determines, in a specified proceeding, that the conservatee may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling to accept, or is incapable of accepting, treatment voluntarily. The bill would also require the court to appoint counsel to a conservatee if he or she cannot afford counsel. The bill would require the officer providing conservatorship investigation to petition the superior court in the patients county of residence to establish conservatorship if he or she concurs with the recommendation of the court, and to file a copy of his or her report with the court. The bill would require a conservator, if conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation. The bill would also make conforming changes.

By expanding the duties of the county officer providing conservatorship investigation, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental disorder or an impairment by chronic alcoholism and requires an officer, including a county public guardian or a county mental health program, to conduct a conservatorship investigation and render a written report to the court of his or her investigation. Under existing law, a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment for a gravely disabled person may recommend a conservatorship for that person, and the agency is required to disclose any records or information that may facilitate an investigation. Existing law requires the officer providing conservatorship investigation, when he or she concurs with the recommendation of the professional person or facility, to petition the superior court in the patients county of residence for a conservatorship. Existing law also provides for the establishment of a conservatorship for a person who is unable to properly provide for his or her personal needs or is substantially unable to manage his or her finances.

This bill would authorize the court, if a conservatorship has already been established under the Probate Code and after a hearing attended by the proposed conservatee or the proposed conservatees counsel, or both, to recommend a conservatorship to the officer providing conservatorship investigation if the court, in consultation with a licensed physician or psychologist, as specified, providing comprehensive evaluation or intensive treatment, in a conservatorship proceeding under the Probate Code determines, based on the evidence presented to the court, including medical evidence, that a person for whom a conservatorship has been established the conservatee may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling to accept, or is incapable of accepting, treatment voluntarily. The bill would also require the court to appoint counsel to a proposed conservatee if he or she cannot afford counsel. The bill would require the officer providing conservatorship investigation to petition the superior court in the patients county of residence to establish conservatorship if he or she concurs with the recommendation of the court, and to file a copy of his or her report with the court. The bill would require an existing probate a conservator, if conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation. The bill would also make conforming changes.

By expanding the duties of the county officer providing conservatorship investigation, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental disorder or an impairment by chronic alcoholism and requires an officer, including a county public guardian or a county mental health program, to conduct a conservatorship investigation and render a written report to the court of his or her investigation. Under existing law, a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment for a gravely disabled person may recommend a conservatorship for that person, and the agency is required to disclose any records or information that may facilitate an investigation. Existing law requires the officer providing conservatorship investigation, when he or she concurs with the recommendation of the professional person or facility, to petition the superior court in the patients county of residence for a conservatorship.

This bill would authorize the court, after a hearing attended by the proposed conservatee or the proposed conservatees counsel, or both, to recommend a conservatorship to the officer providing conservatorship investigation if the court, in consultation with a physician providing comprehensive evaluation or intensive treatment, in a conservatorship proceeding determines, based on the evidence presented to the court, including medical evidence, that a person for whom a conservatorship has been established may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling to accept, or is incapable of accepting, treatment voluntarily. The bill would also require the court to appoint counsel to a proposed conservatee if he or she cannot afford counsel. The bill would require the officer providing conservatorship investigation to petition the superior court in the patients county of residence to establish conservatorship if he or she concurs with the recommendation of the court, and to file a copy of his or her report with the court within 30 days of the courts recommendation. court. The bill would require an existing probate conservator, if conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation. The bill would also make conforming changes.

By expanding the duties of the county officer providing conservatorship investigation, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental disorder or an impairment by chronic alcoholism and requires an officer, including a county public guardian or a county mental health program, to conduct a conservatorship investigation and render a written report to the court of his or her investigation. Under existing law, a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment for a gravely disabled person may recommend a conservatorship for that person, and the agency is required to disclose any records or information that may facilitate an investigation. Existing law requires the officer providing conservatorship investigation, when he or she concurs with the recommendation of the professional person or facility, to petition the superior court in the patients county of residence for a conservatorship.

This bill would authorize the court, after a hearing attended by the proposed conservatee or the proposed conservatees counsel, or both, to recommend a conservatorship to the officer providing conservatorship investigation if the court court, in consultation with a physician providing comprehensive evaluation or intensive treatment, in a conservatorship proceeding determines, based on the evidence presented to the court, including medical evidence, that a person for whom a conservatorship has been established may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling to accept, or is incapable of accepting, treatment voluntarily. The bill would also require the court to appoint counsel to a proposed conservatee if he or she cannot afford counsel. The bill would require the officer providing conservatorship investigation to petition the superior court in the patients county of residence to establish conservatorship if he or she concurs with the recommendation of the court, and to file a copy of his or her report with the court within 30 days of the courts recommendation. The bill would require an existing probate conservator, if conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation. The bill would also make conforming changes.

By expanding the duties of the county officer providing conservatorship investigation, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Existing law provides a procedure for the appointment of a conservator for a person who is determined to be gravely disabled as a result of a mental disorder or an impairment by chronic alcoholism and requires an officer, including a county public guardian or a county mental health program, to conduct a conservatorship investigation and render a written report to the court of his or her investigation. Under existing law, a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment for a gravely disabled person may recommend a conservatorship for that person, and the agency is required to disclose any records or information that may facilitate an investigation. Existing law requires the officer providing conservatorship investigation, when he or she concurs with the recommendation of the professional person or facility, to petition the superior court in the patients county of residence for a conservatorship.

This bill would authorize the court, after a hearing attended by the proposed conservatee or the proposed conservatees counsel, or both, to recommend a conservatorship to the officer providing conservatorship investigation if the court in a conservatorship proceeding determines, based on the evidence presented to the court, including medical evidence, that a person for whom a conservatorship has been established may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling to accept, or is incapable of accepting, treatment voluntarily. The bill would also require the court to appoint counsel to a proposed conservatee if he or she cannot afford counsel. The bill would require the officer providing conservatorship investigation to petition the superior court in the patients county of residence to establish conservatorship if he or she concurs with the recommendation of the court, and to file a copy of his or her report with the court within 30 days of the courts recommendation. The bill would require an existing probate conservator, if conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation. The bill would also make conforming changes.

By expanding the duties of the county officer providing conservatorship investigation, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

GOVERNOR'S VETO

GV Bill Id:AB 193

Author:(Maienschein)

As Enrolled Ver:September 11, 2015

2/3 vote

Original Committee Reference: HEALTH

SUMMARY: Permits a judge presiding over a probate conservatorship to recommend to the county investigating officer the establishment of a Lanterman-Petris-Short (LPS) conservatorship when there is evidence of grave disability as a result of a mental disorder or impairment by chronic alcoholism.

The Senate amendments clarify that a potential LPS conservatee must be represented by counsel when petitioning the court for a recommendation for an LPS conservatorship, clarify that the Probate Court has the authority to order an investigation when making a recommendation for an LPS conservatorship, replace references to "probate court recommendations" with "conservatorship investigation order" and make additional technical, non-substantive changes.

FISCAL EFFECT: According to the Senate Appropriations Committee, potential non-reimbursable local costs in the mid to high hundreds of thousands of dollars annually for county public guardians to conduct a greater number of conservatorship investigations and reports; potential increases in non-reimbursable local costs to county behavioral health and mental health departments for additional LPS placements, services, and treatment; and, potential cost increases to counties for LPS conservatorship placements into Department of State Hospital facilities.

COMMENTS: According to the author, probate courts today are hampered in their ability to ensure proper care and treatment of conservatees who suffer from a mental illness, and there currently are a significant number of people who are not getting the care and treatment they need. Under the LPS Act, the individuals authorized to initiate conservatorship proceedings do not include probate judges or family members. The author contends that some counties are becoming more and more reluctant to initiate necessary conservatorship proceedings. This becomes an even greater issue with gravely disabled homeless persons who have no additional help or anyone to be a proponent for their well-being. They are continually dependent on other services that have limited availability for their survival and are unable to receive the assistance they really need.

The author contends that this creates a gap in treatment availability, making it harder for individuals who are not already hospitalized but whose problems stem from mental illness, alcoholism, or drug abuse, and thus cannot qualify for treatment under the Probate Code. By allowing probate judges to initiate LPS conservatorship proceedings, this bill is intended to remove obstacles to treatment for these individuals.

LPS conservatorship process. The LPS Act creates a series of processes for the involuntary treatment of individuals who are unwilling or unable to accept necessary mental health treatment, generally conditional upon the person being gravely disabled or posing a danger to self or others. An LPS conservatorship, which lasts for a year before it must be reinitiated and reapproved, is typically sought after an individual has received 72-hour evaluation and treatment and 14-day intensive treatment and continues to be gravely disabled. The process begins when the professional staff of the psychiatric facility, after having evaluated and treated the individual, makes a recommendation of conservatorship to the county conservatorship investigator (typically designated as an office in the county, such as the Public Guardian's Office or the Office of the Public Conservator). The county conservatorship investigator is then required to conduct a comprehensive investigation and file a petition for conservatorship only if, after considering all available alternatives to conservatorship, there are no suitable alternatives available.

Probate conservatorships. Conservatorships governed by the Probate Code are the most common type of conservatorship. Probate conservatorships can be established for adults who are unable to provide properly for their personal needs for physical health, food, clothing, or shelter. These conservatees are often elderly people, but can also be seriously impaired younger people. A petition for probate conservatorship can be filed by a spouse, domestic partner, or family member of the proposed conservatee, any interested state or local agency, the conservatee himself or herself, or any other interested person or friend. Current law contains provisions related to conservatees who are unable to give informed consent for medical treatment and gives the conservator the exclusive authority to make health care decisions for the conservatee, including requiring the conservatee to receive health care, whether or not the conservatee objects. For conservatees with dementia, current law allows the conservator to place the conservatee in a locked nursing or residential care facility and authorize the administration of medications to treat dementia, provided that the court makes specified findings. However, current law does not contain provisions that allow a probate conservator to place a conservatee in a locked facility for any reason other than dementia.

The sponsors of this bill, Conference of California Bar Associations, state that this bill would allow a judge presiding over a probate conservatorship to recommend to the county investigating officer that a LPS conservatorship be established when there is medical evidence that an individual is suffering from a grave disability as a result of a mental disorder or impairment by chronic alcoholism. The sponsor argues that currently, one of the few persons who can recommend to the conservatorship investigator that a LPS conservatorship be established are the professional from the agency or facility providing intensive treatment or evaluation services. If an individual is not receiving such intensive treatment or evaluation services, however, no such recommendation can be made, and no LPS conservatorship may be contemplated. At the same time current probate code only allows for a conservatee to be treated in a secured facility or to be administered psychotropic medications when the conservatee has a diagnosis of dementia and not for any other mental health diagnosis or issue relating to alcohol abuse. The sponsor concludes this creates a "gap" in treatment availability for individuals who are not already hospitalized, and thus can’t be recommended, but whose problems stem from mental illness, alcoholism or drug abuse, and thus cannot qualify for treatment under the Probate Code.

The California Association of Counties, the County Behavioral Health Directors Association of California, and the Urban Counties Caucus state in opposition that counties are primarily concerned about the potential costs, workload levels, and overall erosion of county authority in conservatorship investigations associated with authorizing the Probate Court to recommend a LPS conservatorship to a county conservatorship officer and compel that officer to submit a report to the Probate Court within 30 days.

GOVERNOR'S VETO MESSAGE:

This bill would authorize a probate court to order an investigation for a Lanterman-Petris-Short conservatorship for an individual currently under probate conservatorship.

Currently, professionals in charge of county mental health facilities are responsible for recommending an investigation for a Lanterman-Petris-Short conservatorship. This bill bypasses the clinical expertise of these professionals and for that reason I can't support it.

Analysis Prepared by: Paula Villescaz / HEALTH / (916) 319-2097 FN: 0002505

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 193

Author:(Maienschein)

As Amended Ver:September 2, 2015

Majority vote

Original Committee Reference: HEALTH

SUMMARY: Permits a judge presiding over a probate conservatorship to recommend to the county investigating officer the establishment of a Lanterman-Petris-Short (LPS) conservatorship when there is evidence of grave disability as a result of a mental disorder or impairment by chronic alcoholism.

The Senate amendments clarify that a potential LPS conservatee must be represented by counsel when petitioning the court for a recommendation for an LPS conservatorship, clarify that the Probate Court has the authority to order an investigation when making a recommendation for an LPS conservatorship, replace references to "probate court recommendations" with "conservatorship investigation order" and make additional technical, non-substantive changes.

FISCAL EFFECT: According to the Senate Appropriations Committee, potential non-reimbursable local costs in the mid to high hundreds of thousands of dollars annually for county public guardians to conduct a greater number of conservatorship investigations and reports; potential increases in non-reimbursable local costs to county behavioral health and mental health departments for additional LPS placements, services, and treatment; and, potential cost increases to counties for LPS conservatorship placements into Department of State Hospital facilities.

COMMENTS: According to the author, probate courts today are hampered in their ability to ensure proper care and treatment of conservatees who suffer from a mental illness, and there currently are a significant number of people who are not getting the care and treatment they need. Under the LPS Act, the individuals authorized to initiate conservatorship proceedings do not include probate judges or family members. The author contends that some counties are becoming more and more reluctant to initiate necessary conservatorship proceedings. This becomes an even greater issue with gravely disabled homeless persons who have no additional help or anyone to be a proponent for their well-being. They are continually dependent on other services that have limited availability for their survival and are unable to receive the assistance they really need.

The author contends that this creates a gap in treatment availability, making it harder for individuals who are not already hospitalized but whose problems stem from mental illness, alcoholism, or drug abuse, and thus cannot qualify for treatment under the Probate Code. By allowing probate judges to initiate LPS conservatorship proceedings, this bill is intended to remove obstacles to treatment for these individuals.

LPS conservatorship process. The LPS Act creates a series of processes for the involuntary treatment of individuals who are unwilling or unable to accept necessary mental health treatment, generally conditional upon the person being gravely disabled or posing a danger to self or others. An LPS conservatorship, which lasts for a year before it must be reinitiated and reapproved, is typically sought after an individual has received 72-hour evaluation and treatment and 14-day intensive treatment and continues to be gravely disabled. The process begins when the professional staff of the psychiatric facility, after having evaluated and treated the individual, makes a recommendation of conservatorship to the county conservatorship investigator (typically designated as an office in the county, such as the Public Guardian's Office or the Office of the Public Conservator). The county conservatorship investigator is then required to conduct a comprehensive investigation and file a petition for conservatorship only if, after considering all available alternatives to conservatorship, there are no suitable alternatives available.

Probate conservatorships. Conservatorships governed by the Probate Code are the most common type of conservatorship. Probate conservatorships can be established for adults who are unable to provide properly for their personal needs for physical health, food, clothing, or shelter. These conservatees are often elderly people, but can also be seriously impaired younger people. A petition for probate conservatorship can be filed by a spouse, domestic partner, or family member of the proposed conservatee, any interested state or local agency, the conservatee himself or herself, or any other interested person or friend. Current law contains provisions related to conservatees who are unable to give informed consent for medical treatment and gives the conservator the exclusive authority to make health care decisions for the conservatee, including requiring the conservatee to receive health care, whether or not the conservatee objects. For conservatees with dementia, current law allows the conservator to place the conservatee in a locked nursing or residential care facility and authorize the administration of medications to treat dementia, provided that the court makes specified findings. However, current law does not contain provisions that allow a probate conservator to place a conservatee in a locked facility for any reason other than dementia.

The sponsors of this bill, Conference of California Bar Associations, state that this bill would allow a judge presiding over a probate conservatorship to recommend to the county investigating officer that a LPS conservatorship be established when there is medical evidence that an individual is suffering from a grave disability as a result of a mental disorder or impairment by chronic alcoholism. The sponsor argues that currently, one of the few persons who can recommend to the conservatorship investigator that a LPS conservatorship be established are the professional from the agency or facility providing intensive treatment or evaluation services. If an individual is not receiving such intensive treatment or evaluation services, however, no such recommendation can be made, and no LPS conservatorship may be contemplated. At the same time current probate code only allows for a conservatee to be treated in a secured facility or to be administered psychotropic medications when the conservatee has a diagnosis of dementia and not for any other mental health diagnosis or issue relating to alcohol abuse. The sponsor concludes this creates a "gap" in treatment availability for individuals who are not already hospitalized, and thus can’t be recommended, but whose problems stem from mental illness, alcoholism or drug abuse, and thus cannot qualify for treatment under the Probate Code.

The California Association of Counties, the County Behavioral Health Directors Association of California, and the Urban Counties Caucus state in opposition that counties are primarily concerned about the potential costs, workload levels, and overall erosion of county authority in conservatorship investigations associated with authorizing the Probate Court to recommend a LPS conservatorship to a county conservatorship officer and compel that officer to submit a report to the Probate Court within 30 days.

Analysis Prepared by: Paula Villescaz / HEALTH / (916) 319-2097 FN: 0002093

 THIRD READING  

Bill No: AB 193

Author: Maienschein (R), et al.

Amended: 9/2/15 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 6/30/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15

AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

ASSEMBLY FLOOR: 77-0, 6/2/15 - See last page for vote

SUBJECT: Mental health: conservatorship hearings

SOURCE: Conference of California Bar Associations

DIGEST: This bill authorizes the probate court, after an evidentiary hearing attended by a proposed conservatee and/or his counsel, to order an investigation for a Lanterman-Petris Short (LPS) Act conservatorship, as specified, if the court determines that a person for whom a probate conservatorship has been established may be gravely disabled and is unwilling or incapable of accepting treatment voluntarily. This bill requires the officer providing conservatorship investigation to petition the superior court in the patient’s county of residence to establish a conservatorship if he or she concurs with the recommendation of the court, and to file a copy of his or her report with the court.

Senate Floor Amendments of 9/2/15 clarify that the court may order an investigation, after an evidentiary hearing, to determine whether the proposed conservatee should be subject to an LPS conservatorship, rather than make a recommendation for the conservatorship. The amendments also clarify that the proposed conservatee may waive appearance at the evidentiary hearing.

ANALYSIS:

Existing law:

1. Provides that if a person is gravely disabled as a result of mental illness, or a danger to self or others, then a peace officer, staff of a designated treatment facility or crisis team, or other professional person designated by the county, may, upon probable cause, take that person into custody for a period of up to 72 hours for assessment, evaluation, crisis intervention, or placement in a designated treatment facility. (Welf. & Inst. Code Sec. 5150.)

2. Provides that a person who has been detained for 72 hours may be detained for up to 14 days of intensive treatment if the person continues to pose a danger to self or others, or to be gravely disabled, and the person has been unwilling or unable to accept voluntary treatment. Existing law further provides that a person who has been detained for 14 days of intensive treatment may be detained for up to 30 additional days of intensive treatment if the person remains gravely disabled and is unwilling or unable to voluntarily accept treatment. (Welf. & Inst. Code Secs. 5250, 5270.15.)

3. Allows the professional person in charge of a facility providing 72-hour, 14-day, or 30-day treatment to recommend an LPS conservatorship to the county conservatorship investigator for a person who is gravely disabled and is unwilling or unable to voluntarily accept treatment, and requires the conservatorship investigator, if he or she concurs with the recommendation, to petition the superior court to establish an LPS conservatorship. (Welf. & Inst. Code Sec. 5350 et seq.)

4. Gives the LPS conservator the right, if specified in the court order, to require the conservatee to receive treatment related specifically to remedying or preventing the recurrence of the conservatee’s being gravely disabled. (Welf. & Inst. Code Secs. 5358, 5358.2.)

5. Permits any interested person to petition the court for the appointment of a “conservator of the person” for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter, and permits the appointment of a “conservator of the estate” for a person who is unable to manage his or her financial resources or resist fraud or undue influence. (Prob. Code Sec. 1801 (a)-(b).)

6. Permits a conservator under the Probate Code to place a conservatee in a locked facility only if there is clear and convincing evidence of all of the following:

• the conservatee has dementia;

• the conservatee lacks capacity to give informed consent, as specified, to this placement;

• the conservatee would benefit from this placement; and

• the court determines that placement in a locked facility is the least restrictive placement given the needs of the conservatee. (Prob. Code Sec. 2356.5.)

This bill:

1. Authorizes a court, after an evidentiary hearing attended by the proposed conservatee and/or his counsel, to order the county officer providing the conservatorship to conduct an investigation for an LPS conservatorship, when the court, in consultation with a physician or psychologist providing comprehensive evaluation or intensive treatment, in a probate conservatorship hearing determines, based on evidence presented to the court, that a person for whom a probate conservatorship has been established may be gravely disabled as a result of mental disorder or chronic alcoholism and is unwilling or incapable of accepting treatment voluntarily.

2. Requires the officer, if the officer providing the conservatorship investigation concurs with the recommendation of the court, to petition the appropriate superior court to establish the LPS conservatorship.

3. Requires the officer providing the conservatorship investigation to file his or her report with the court that made the conservatorship investigation.

4. Requires an existing probate conservator to disclose any records or information that may facilitate the investigation.

Background

The Probate Code sets forth a statutory scheme governing the appointment of conservators for adults who cannot take care of themselves or their finances. These conservatees are often elderly people, but can also be younger people who have been seriously impaired. A conservator of the person is appointed to make decisions about personal matters for the conservatee, including decisions about food, clothing, and residence, and a conservator of the estate is responsible for handling the financial affairs of the conservatee. A conservator generally has the power to collect the conservatee’s assets, pay bills, and make investments, but must seek court supervision for major transactions, such as the purchase or sale of real property, borrowing money, and gifting of assets.

The Lanterman-Petris-Short (LPS) Act, additionally provides a statutory process under which gravely disabled individuals can be involuntarily held and treated in a mental health facility in a manner that safeguards their constitutional rights. A person is “gravely disabled” if he or she, as a result of a metal disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter. The LPS Act was intended to balance the goals of maintaining the constitutional right to personal liberty and choice in mental health treatment, with the goal of safety when an individual may be a danger to oneself or others. The LPS Act authorizes the superior court to appoint a conservator of a gravely disabled person, so that he or she may receive individualized treatment, supervision, and placement.

Under the LPS Act, anyone who, as a result of a mental health disorder, is either a danger to self or to others or is gravely disabled can be involuntarily hospitalized in a facility for 72 hours of evaluation and treatment without court intervention. In the case of individuals who are a danger to themselves or others, a peace officer, professional person in charge of an evaluation facility, staff member, or other specified professional who has probable cause, may take the person into custody. If there is probable cause to believe that a person is gravely disabled, any person may make the application to the responsible county agency or person. If specified criteria are met, the initial 72-hour hold may be extended up to 30 days. Upon the recommendation of the professional person in charge of the evaluation, a conservatorship investigator must investigate all available alternatives to an LPS conservatorship, and recommend to the superior court, for or against conservatorship. This bill allows a probate court, who is overseeing a conservatorship, to recommend an LPS conservatorship to the conservatorship investigator.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee

• Conservatorship investigations: Potentially significant non-reimbursable local costs (Local Funds) in the mid to high hundreds of thousands of dollars annually for county public guardians to conduct a greater number of conservatorship investigations and reports. Any increase in local costs is not estimated to be eligible for state reimbursement as the Commission on State Mandates (CSM) has determined that state-mandated activities on public guardians are triggered only after a county’s discretionary decision to establish the office of the public guardian, as specified, and the investigations would be upon order of the court.

• LPS conservatorship placements and services: Potentially significant to major increases in non-reimbursable local costs (Local Funds) to county behavioral health and mental health departments for additional LPS placements, services, and treatment. The magnitude of these costs would be dependent on the number of new conservatorships and the level of services and treatment provided to each conservatee, which is unknown at this time. To the extent a number of LPS conservatees are Medi-Cal eligible could result in increases in medically necessary specialty mental health services including but not limited to crisis residential treatment and medication support services, resulting in increased Medi-Cal program costs (Federal Fund/General Fund).

• DSH impact: For LPS conservatorship placements into Department of State Hospital (DSH) facilities, counties would be responsible for all treatment costs. The counties are also billed for actual bed usage according to the bed rate structure developed by DSH.

SUPPORT: (Verified 9/2/15)

Conference of California Bar Associations (source)

American Association of Retired Persons

OPPOSITION: (Verified 9/2/15)

California State Association of Counties

California State Association of Public Administrators, Public Guardians, and Public Conservators

County Behavioral Health Directors Association of California

Monterey County Board of Supervisors

San Joaquin County

Ventura County Board of Supervisors

Urban Counties Caucus

According to the author:

Under current law only a professional from a county agency or facility providing intensive treatment or evaluation services may make a recommendation to the conservatorship investigator for an LPS conservatorship based on specific findings of an individual’s level of disability. If an individual is not receiving such intensive treatment or evaluation services, no such recommendation can be made, and no LPS conservatorship may be contemplated. At the same time, the Probate Code governing traditional probate conservatorships only allows for treatment of a conservatee in a secured facility, or involuntary administration of psychotropic medications, when the conservatee has a diagnosis of dementia and not for any other mental health diagnosis, no matter how serious. This creates a “gap” in treatment availability into which fall individuals who are not already hospitalized, and thus cannot be recommended, but whose problems stem from mental illness, and therefor do not qualify for treatment under the Probate Code.

ARGUMENTS IN OPPOSITION: The California State Association of Counties, the County Behavioral Health Directors Association of California and the Urban Counties Caucus express concern about the potential costs, workload levels, and overall erosion of county authority in conservatorship investigations should this bill move forward. In opposition, these groups write:

While … AB 193 does not require the conservatorship officer to recommend conservatorship, it does compel the conservatorship officer to conduct a conservatorship investigation and report back to the Probate Court their findings. This is contrary to current law, will increase the number of LPS conservatorship referrals, and will increase the number of LPS conservatorship referrals, and will increase county costs.

Counties understand that the root issue and reason for this bill is to provide treatment to those who may be unable to comprehend their illnesses or actions. However, we note that a person suffering from a mental illness will likely touch the county mental health system and currently may be referred by that system for a LPS conservatorship. AB 193 would bypass the established mental health system and give probate judges the same authority over mental health evaluations as mental health practitioners.

ASSEMBLY FLOOR: 77-0, 6/2/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, 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: Bonilla, Chávez, Grove

Prepared by: Nichole Rapier / JUD. / (916) 651-4113

9/3/15 13:52:50

**** END ****

 THIRD READING  

Bill No: AB 193

Author: Maienschein (R), et al.

Amended: 7/6/15 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 6/30/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15

AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

ASSEMBLY FLOOR: 77-0, 6/2/15 - See last page for vote

SUBJECT: Mental health: conservatorship hearings

SOURCE: Conference of California Bar Associations

DIGEST: This bill authorizes the probate court, after a hearing attended by a proposed conservatee’s counsel, to recommend Lanterman-Petris Short (LPS) Act conservatorship and order an investigation, as specified, if the court determines that a person for whom a probate conservatorship has been established may be gravely disabled and is unwilling or incapable of accepting treatment voluntarily. This bill requires the officer providing conservatorship investigation to petition the superior court in the patient’s county of residence to establish a conservatorship if he or she concurs with the recommendation of the court, and to file a copy of his or her report with the court.

ANALYSIS:

Existing law:

1. Provides that if a person is gravely disabled as a result of mental illness, or a danger to self or others, then a peace officer, staff of a designated treatment facility or crisis team, or other professional person designated by the county, may, upon probable cause, take that person into custody for a period of up to 72 hours for assessment, evaluation, crisis intervention, or placement in a designated treatment facility. (Welf. & Inst. Code Sec. 5150.)

2. Provides that a person who has been detained for 72 hours may be detained for up to 14 days of intensive treatment if the person continues to pose a danger to self or others, or to be gravely disabled, and the person has been unwilling or unable to accept voluntary treatment. Existing law further provides that a person who has been detained for 14 days of intensive treatment may be detained for up to 30 additional days of intensive treatment if the person remains gravely disabled and is unwilling or unable to voluntarily accept treatment. (Welf. & Inst. Code Secs. 5250, 5270.15.)

3. Allows the professional person in charge of a facility providing 72-hour, 14-day, or 30-day treatment to recommend an LPS conservatorship to the county conservatorship investigator for a person who is gravely disabled and is unwilling or unable to voluntarily accept treatment, and requires the conservatorship investigator, if he or she concurs with the recommendation, to petition the superior court to establish an LPS conservatorship. (Welf. & Inst. Code Sec. 5350 et seq.)

4. Gives the LPS conservator the right, if specified in the court order, to require the conservatee to receive treatment related specifically to remedying or preventing the recurrence of the conservatee’s being gravely disabled. (Welf. & Inst. Code Secs. 5358, 5358.2.)

5. Permits any interested person to petition the court for the appointment of a “conservator of the person” for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter, and permits the appointment of a “conservator of the estate” for a person who is unable to manage his or her financial resources or resist fraud or undue influence. (Prob. Code Sec. 1801 (a)-(b).)

6. Permits a conservator under the Probate Code to place a conservatee in a locked facility only if there is clear and convincing evidence of all of the following:

• the conservatee has dementia;

• the conservatee lacks capacity to give informed consent, as specified, to this placement;

• the conservatee would benefit from this placement; and

• the court determines that placement in a locked facility is the least restrictive placement given the needs of the conservatee. (Prob. Code Sec. 2356.5.)

This bill:

1. Authorizes a court, after a hearing attended by the proposed conservatee’s counsel, to recommend an LPS conservatorship and order the county officer providing conservatorship to conduct an investigation when the court, in consultation with a physician or psychologist providing comprehensive evaluation or intensive treatment, in a probate conservatorship hearing determines, based on evidence presented to the court, that a person for whom a probate conservatorship has been established may be gravely disabled as a result of mental disorder or chronic alcoholism and is unwilling or incapable of accepting treatment voluntarily.

2. Requires the officer, if the officer providing the conservatorship investigation concurs with the recommendation of the court, to petition the appropriate superior court to establish the LPS conservatorship.

3. Requires the officer providing the conservatorship investigation to file his or her report with the court that made the conservatorship investigation.

4. Requires an existing probate conservator, if the conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation.

Background

The Probate Code sets forth a statutory scheme governing the appointment of conservators for adults who cannot take care of themselves or their finances. These conservatees are often elderly people, but can also be younger people who have been seriously impaired. A conservator of the person is appointed to make decisions about personal matters for the conservatee, including decisions about food, clothing, and residence, and a conservator of the estate is responsible for handling the financial affairs of the conservatee. A conservator generally has the power to collect the conservatee’s assets, pay bills, and make investments, but must seek court supervision for major transactions, such as the purchase or sale of real property, borrowing money, and gifting of assets.

The Lanterman-Petris-Short (LPS) Act, additionally provides a statutory process under which gravely disabled individuals can be involuntarily held and treated in a mental health facility in a manner that safeguards their constitutional rights. A person is “gravely disabled” if he or she, as a result of a metal disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter. The LPS Act was intended to balance the goals of maintaining the constitutional right to personal liberty and choice in mental health treatment, with the goal of safety when an individual may be a danger to oneself or others. The LPS Act authorizes the superior court to appoint a conservator of a gravely disabled person, so that he or she may receive individualized treatment, supervision, and placement.

Under the LPS Act, anyone who, as a result of a mental health disorder, is either a danger to self or to others or is gravely disabled can be involuntarily hospitalized in a facility for 72 hours of evaluation and treatment without court intervention. In the case of individuals who are a danger to themselves or others, a peace officer, professional person in charge of an evaluation facility, staff member, or other specified professional who has probable cause, may take the person into custody. If there is probable cause to believe that a person is gravely disabled, any person may make the application to the responsible county agency or person. If specified criteria are met, the initial 72-hour hold may be extended up to 30 days. Upon the recommendation of the professional person in charge of the evaluation, a conservatorship investigator must investigate all available alternatives to an LPS conservatorship, and recommend to the superior court, for or against conservatorship. This bill allows a probate court, who is overseeing a conservatorship, to recommend an LPS conservatorship to the conservatorship investigator.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

1. Conservatorship investigations: Potentially significant non-reimbursable local costs (Local Funds) in the mid to high hundreds of thousands of dollars annually for county public guardians to conduct a greater number of conservatorship investigations and reports. Any increase in local costs is not estimated to be eligible for state reimbursement as the Commission on State Mandates (CSM) has determined that state-mandated activities on public guardians are triggered only after a county’s discretionary decision to establish the office of the public guardian, as specified, and the investigations would be upon order of the court.

2. LPS conservatorship placements and services: Potentially significant to major increases in non-reimbursable local costs (Local Funds) to county behavioral health and mental health departments for additional LPS placements, services, and treatment. The magnitude of these costs would be dependent on the number of new conservatorships and the level of services and treatment provided to each conservatee, which is unknown at this time. To the extent a number of LPS conservatees are Medi-Cal eligible could result in increases in medically necessary specialty mental health services including but not limited to crisis residential treatment and medication support services, resulting in increased Medi-Cal program costs (Federal Fund/General Fund).

3. DSH impact: For LPS conservatorship placements into Department of State Hospital (DSH) facilities, counties would be responsible for all treatment costs. The counties are also billed for actual bed usage according to the bed rate structure developed by DSH.

SUPPORT: (Verified 8/28/15)

Conference of California Bar Associations (source)

American Association of Retired Persons

OPPOSITION: (Verified 8/28/15)

California State Association of Counties

California State Association of Public Administrators, Public Guardians, and Public Conservators

County Behavioral Health Directors Association of California

Monterey County Board of Supervisors

San Joaquin County

Ventura County Board of Supervisors

Urban Counties Caucus

According to the author:

Under current law only a professional from a county agency or facility providing intensive treatment or evaluation services may make a recommendation to the conservatorship investigator for an LPS conservatorship based on specific findings of an individual’s level of disability. If an individual is not receiving such intensive treatment or evaluation services, no such recommendation can be made, and no LPS conservatorship may be contemplated. At the same time, the Probate Code governing traditional probate conservatorships only allows for treatment of a conservatee in a secured facility, or involuntary administration of psychotropic medications, when the conservatee has a diagnosis of dementia and not for any other mental health diagnosis, no matter how serious. This creates a “gap” in treatment availability into which fall individuals who are not already hospitalized, and thus cannot be recommended, but whose problems stem from mental illness, and therefor do not qualify for treatment under the Probate Code.

ARGUMENTS IN OPPOSITION: The California State Association of Counties, the County Behavioral Health Directors Association of California and the Urban Counties Caucus express concern about the potential costs, workload levels, and overall erosion of county authority in conservatorship investigations should this bill move forward. In opposition, these groups write:

While … AB 193 does not require the conservatorship officer to recommend conservatorship, it does compel the conservatorship officer to conduct a conservatorship investigation and report back to the Probate Court their findings. This is contrary to current law, will increase the number of LPS conservatorship referrals, and will increase the number of LPS conservatorship referrals, and will increase county costs.

Counties understand that the root issue and reason for this bill is to provide treatment to those who may be unable to comprehend their illnesses or actions. However, we note that a person suffering from a mental illness will likely touch the county mental health system and currently may be referred by that system for a LPS conservatorship. AB 193 would bypass the established mental health system and give probate judges the same authority over mental health evaluations as mental health practitioners.

ASSEMBLY FLOOR: 77-0, 6/2/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, 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: Bonilla, Chávez, Grove

Prepared by: Nichole Rapier / JUD. / (916) 651-4113

8/31/15 12:47:44

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 193 (Maienschein) - Mental health: conservatorship hearings

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 193 would authorize a probate court to order an investigation and recommend a Lanterman-Petris-Short (LPS) conservatorship for an individual for whom a conservatorship has been established under the Probate Code, as specified. This bill would require the county officer providing the conservatorship investigation to file a copy of his or her report with the court making the recommendation.

Fiscal Impact:

• Conservatorship investigations: Potentially significant non-reimbursable local costs (Local Funds) in the mid to high hundreds of thousands of dollars annually for county public guardians to conduct a greater number of conservatorship investigations and reports. Any increase in local costs is not estimated to be eligible for state reimbursement as the Commission on State Mandates (CSM) has determined that state-mandated activities on public guardians are triggered only after a county’s discretionary decision to establish the office of the public guardian, as specified, and the investigations would be upon order of the court.

• LPS conservatorship placements and services: Potentially significant to major increases in non-reimbursable local costs (Local Funds) to county behavioral health and mental health departments for additional LPS placements, services, and treatment. The magnitude of these costs would be dependent on the number of new conservatorships and the level of services and treatment provided to each conservatee, which is unknown at this time. To the extent a number of LPS conservatees are Medi-Cal eligible could result in increases in medically necessary specialty mental health services including but not limited to crisis residential treatment and medication support services, resulting in increased Medi-Cal program costs (Federal Fund/General Fund).

• DSH impact: For LPS conservatorship placements into Department of State Hospital (DSH) facilities, counties would be responsible for all treatment costs. The counties are also billed for actual bed usage according to the bed rate structure developed by DSH.

Background:

Existing law pursuant to the Probate Code sets forth the judicial procedure required in order to establish a probate conservatorship, for cases in which someone is no longer able to handle his or her own financial and/or personal affairs, and the court appoints an individual (the conservator) to act on behalf of the incapacitated person (the conservatee). The establishment of a conservatorship restricts the conservatee’s powers over financial and/or personal care decisions. (Probate Code §§ 1800-2893.)

Alternatively, LPS conservatorships are established under the Lanterman-Petris-Short Act and are governed by the Welfare and Institutions Code (WIC). For this type of conservatorship, a conservator is appointed to represent a person who is "gravely disabled" as a result of a mental disorder or impairment by chronic alcoholism, and is unwilling to accept or is incapable of accepting treatment voluntarily. Existing law defines "gravely disabled" to mean that a person is, as a result of a mental disorder or, as a result of impairment by chronic alcoholism, unable to provide for their basic personal needs for food, clothing or shelter.

Under existing law anyone who, as a result of a mental health disorder, who is either a danger to self or to others or is gravely disabled, can be involuntarily hospitalized in a facility for 72 hours of evaluation and treatment without court intervention (WIC § 5150.) In the case of individuals who are a danger to themselves or others, a peace officer, professional person in charge of a facility, staff member, or other specified professional who has probable cause, may take the person into custody. If there is probable cause to believe that a person is gravely disabled, any person may make the application to the responsible county agency or person. If specified criteria are met, the initial 72-hour hold may be extended up to 30 days.

An LPS conservatorship can only be recommended to a conservatorship investigator by a professional from a county agency or facility providing intensive treatment or evaluation services. A conservatorship investigator must investigate all available alternatives to an LPS conservatorship, and make a recommendation to the court for or against conservatorship. This bill would additionally allow a probate court that is overseeing a probate conservatorship to recommend an LPS conservatorship to the investigator.

Proposed Law:

This bill would authorize a probate court to order an investigation and recommend an LPS conservatorship for an individual for whom a probate conservatorship has been established, as follows:

• Authorizes a court, after a hearing attended by the proposed conservatee’s counsel, to recommend an LPS conservatorship and order the county officer providing conservatorship to conduct an investigation when the court, in consultation with a physician or psychologist providing comprehensive evaluation or intensive treatment, in a probate conservatorship hearing determines, based on evidence presented to the court, that a person for whom a probate conservatorship has been established may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism and is unwilling or incapable of accepting treatment voluntarily.

• Requires the officer, if the officer providing the conservatorship investigation concurs with the recommendation of the court, to petition the appropriate superior court to establish the LPS conservatorship.

• Requires the officer providing the conservatorship investigation to file his or her report with the court that made the conservatorship investigation.

• Requires an existing probate conservator, if the conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation.

Related Legislation:

AB 1725 (Maienschein) 2014 was similar to this measure. This bill was held on the Suspense File of the Assembly Committee on Appropriations.

Staff Comments:

By requiring county officers (public guardians) to conduct an investigation upon the recommendation of the probate court and provide a copy of their reports to the court, this bill imposes a higher level of service on local agencies. While it is unknown with certainty how many referrals for investigations will result should this bill be enacted, based on a survey of counties, it is estimated that costs for additional investigations could cost in the mid to high hundreds of thousands of dollars annually. Staff notes that any increase in local costs is not considered to be eligible for state reimbursement, as the CSM determined in its statement of decision of Public Guardianship Omnibus Conservatorship Reform (07-TC-05), that although the provisions of the statute did in fact impose new duties on county public guardians, they are triggered by the county’s discretionary decision to create the office of public guardian and therefore, the requirements do not create a state-mandated program within the meaning of Article XIIIB, section 6 of the California Constitution.

Specifically, Government Code § 27430 states the following: (a) In any county the board of supervisors may by ordinance create the office of the public guardian and subordinate position which may be necessary and fix compensation therefor; and, (b) The board of supervisors may by ordinance terminate the office of public guardian.

The decision to create the office of public guardian is a local discretionary decision based on the county’s parens patriae power “to protect incompetent persons.” Local legislative bodies have broad discretion in the exercise of their powers, both in determining what the interests of the public require and what measures are reasonably necessary for the protection of those interests. The courts have determined that reimbursement is not required when requirements are triggered by local government’s voluntary decision to participate in a program.

In addition to the county investigation and administrative costs, this bill could potentially result in a greater number of LPS conservatorships established, subsequently resulting in an increased number of LPS conservatees requiring facility placement and the provision of services and intensive treatment. It is unknown how many investigations initiated by referral of the probate court will ultimately result in a county investigator recommendation for an LPS conservatorship, but placement and services/treatment costs for even a few individuals is likely to exceed several hundred thousand dollars annually. To the extent a percentage of the newly established LPS conservatees is eligible for the Medi-Cal program could also result in increased federal and state funding for these costs for services provided in appropriate settings.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 193 (Author:Maienschein)

Version: June 22, 2015

Hearing Date: June 30, 2015

Fiscal: Yes

Urgency: No

Consultant: NR

SUBJECT

Mental health: conservatorship hearings

DESCRIPTION

This bill would authorize the probate court, after a hearing attended by a proposed conservatee’s counsel, to recommend Lanterman-Petris Short (LPS) Act conservatorship and order an investigation, as specified, if the court determines that a person for whom a probate conservatorship has been established may be gravely disabled and is unwilling or incapable of accepting treatment voluntarily.

This bill would require the officer providing conservatorship investigation to petition the superior court in the patient’s county of residence to establish a conservatorship if he or she concurs with the recommendation of the court, and to file a copy of his or her report with the court.

(This analysis reflects author’s amendments to be offered in Committee.)

BACKGROUND

The Probate Code sets forth a statutory scheme governing the appointment of conservators for adults who cannot take care of themselves or their finances. These conservatees are often elderly people, but can also be younger people who have been seriously impaired. A conservator of the person is appointed to make decisions about personal matters for the conservatee, including decisions about food, clothing, and residence, and a conservator of the estate is responsible for handling the financial affairs of the conservatee. A conservator generally has the power to collect the conservatee’s assets, pay bills, and make investments, but must seek court supervision for major transactions, such as the purchase or sale of real property, borrowing money, and gifting of assets.

The Lanterman-Petris-Short (LPS) Act, additionally provides a statutory process under which gravely disabled individuals can be involuntarily held and treated in a mental health facility in a manner that safeguards their constitutional rights. A person is “gravely disabled” if he or she, as a result of a metal disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter. The LPS Act was intended to balance the goals of maintaining the constitutional right to personal liberty and choice in mental health treatment, with the goal of safety when an individual may be a danger to oneself or others. The LPS Act authorizes the superior court to appoint a conservator of a gravely disabled person, so that he or she may receive individualized treatment, supervision, and placement.

Under the LPS Act, anyone who, as a result of a mental health disorder, is either a danger to self or to others or is gravely disabled can be involuntarily hospitalized in a facility for 72 hours of evaluation and treatment without court intervention. In the case of individuals who are a danger to themselves or others, a peace officer, professional person in charge of an evaluation facility, staff member, or other specified professional who has probable cause, may take the person into custody. If there is probable cause to believe that a person is gravely disabled, any person may make the application to the responsible county agency or person. If specified criteria are met, the initial 72-hour hold may be extended up to 30 days. Upon the recommendation of the professional person in charge of the evaluation, a conservatorship investigator must investigate all available alternatives to an LPS conservatorship, and recommend to the superior court, for or against conservatorship. This bill, would additionally allow a probate court, who is overseeing a conservatorship, to recommend an LPS conservatorship to the conservatorship investigator.

CHANGES TO EXISTING LAW

Existing law provides that if a person is gravely disabled as a result of mental illness, or a danger to self or others, then a peace officer, staff of a designated treatment facility or crisis team, or other professional person designated by the county, may, upon probable cause, take that person into custody for a period of up to 72 hours for assessment, evaluation, crisis intervention, or placement in a designated treatment facility. (Welf. & Inst. Code Sec. 5150.)

Existing law provides that a person who has been detained for 72 hours may be detained for up to 14 days of intensive treatment if the person continues to pose a danger to self or others, or to be gravely disabled, and the person has been unwilling or unable to accept voluntary treatment. Existing law further provides that a person who has been detained for 14 days of intensive treatment may be detained for up to 30 additional days of intensive treatment if the person remains gravely disabled and is unwilling or unable to voluntarily accept treatment. (Welf. & Inst. Code Secs. 5250, 5270.15.)

Existing law allows the professional person in charge of a facility providing 72-hour, 14-day, or 30-day treatment to recommend an LPS conservatorship to the county conservatorship investigator for a person who is gravely disabled and is unwilling or unable to voluntarily accept treatment, and requires the conservatorship investigator, if he or she concurs with the recommendation, to petition the superior court to establish an LPS conservatorship. (Welf. & Inst. Code Sec. 5350 et seq.)

Existing law gives the LPS conservator the right, if specified in the court order, to require the conservatee to receive treatment related specifically to remedying or preventing the recurrence of the conservatee’s being gravely disabled. (Welf. & Inst. Code Secs. 5358, 5358.2.)

Existing law permits any interested person to petition the court for the appointment of a “conservator of the person” for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter, and permits the appointment of a “conservator of the estate” for a person who is unable to manage his or her financial resources or resist fraud or undue influence. (Prob. Code Sec. 1801 (a)-(b).)

Existing law permits a conservator under the Probate Code to place a conservatee in a locked facility only if there is clear and convincing evidence of all of the following:

• the conservatee has dementia;

• the conservatee lacks capacity to give informed consent, as specified, to this placement;

• the conservatee would benefit from this placement; and

• the court determines that placement in a locked facility is the least restrictive placement given the needs of the conservatee. (Prob. Code Sec. 2356.5.)

This bill would authorize a court, after a hearing attended by the proposed conservatee’s counsel, to recommend an LPS conservatorship and order the county officer providing conservatorship to conduct an investigation when the court, in consultation with a physician or psychologist providing comprehensive evaluation or intensive treatment, in a probate conservatorship hearing determines, based on evidence presented to the court, that a person for whom a probate conservatorship has been established may be gravely disabled as a result of mental disorder or chronic alcoholism and is unwilling or incapable of accepting treatment voluntarily.

This bill would require the officer, if the officer providing the conservatorship investigation concurs with the recommendation of the court, to petition the appropriate superior court to establish the LPS conservatorship.

This bill would additionally require the officer providing the conservatorship investigation to file his or her report with the court that made the conservatorship investigation.

This bill would require an existing probate conservator, if the conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation.

COMMENT

1. Stated need for the bill

According to the author:

Under current law only a professional from a county agency or facility providing intensive treatment or evaluation services may make a recommendation to the conservatorship investigator for an LPS conservatorship based on specific findings of an individual’s level of disability. If an individual is not receiving such intensive treatment or evaluation services, no such recommendation can be made, and no LPS conservatorship may be contemplated. At the same time, the Probate Code governing traditional probate conservatorships only allows for treatment of a conservatee in a secured facility, or involuntary administration of psychotropic medications, when the conservatee has a diagnosis of dementia and not for any other mental health diagnosis, no matter how serious. This creates a “gap” in treatment availability into which fall individuals who are not already hospitalized, and thus cannot be recommended, but whose problems stem from mental illness, and therefor do not qualify for treatment under the Probate Code.

2. Due process rights of potential LPS conservatees

This bill would allow a probate court to make a recommendation for an LPS conservatorship for a current probate conservatee. The recommendation must be made at a hearing in which the probate conservatee is represented by counsel, where evidence supporting the recommendation has been provided, and where the court has consulted with a medical or psychological professional. This bill would not authorize a court to establish the LPS conservatorship on its own motion. Rather, it would allow the court to make a “recommendation,” to the county conservatorship investigator based on evidence, including medical evidence, presented at a hearing. It would then be determined by the county investigator whether to act on that recommendation and petition a superior court for an LPS conservatorship.

Opponents argue that this bill “circumvents the legal process” under the LPS Act and infringes on potential LPS conservatees’ due process rights. In opposition, the California State Association of Public Administrators, Public Guardians, and Public Conservators write:

A probate conservatorship is established for persons unable to provide for their basic needs or who are unable to manage their financial resources or resist fraud or undue influence. The basis of a probate conservatorship is capacity for informed consent, which is a different legal standard than an LPS conservatorship, which is based on grave disability.

AB 193 circumvents the legal process established in the LPS Act which an individual suffering from a mental health disorder who is involuntarily detained is afforded numerous due process rights, including appointment of a patient’s rights advocate, probable cause hearings, Rieise (medication) hearings, and the ability to file a writ to avoid being placed on an LPS conservatorship.

In response to the concerns that this bill would significantly alter the process by which an LPS conservatorship is created, the author writes, “a judge will now be allowed to make a recommendation where they could not previously, but the power to petition the court for a conservatorship still rests 100 percent in the determination of the county investigating officer. The counties will still have complete control of who they pursue a conservatorship for. After the initial recommendation from the judge, the process remains unchanged from current law … and the [potential] conservatee will have all the same due process protections that are afforded in current law.”

Staff further notes that by allowing a Probate court to recommend an LPS conservatorship, and requiring the county investigator to look into a potential conservatee, this bill would create an option to have an LPS investigation without a potential conservatee being held under a under a 3, 14, or 30 day hold. (See Background.) Thus, the need to file a writ of habeas corpus may not be present. Persons placed in a temporary LPS conservatorship, which can last anywhere from 30 days to 6 months, may file a writ at any time, and those in a permanent LPS conservatorship (lasting 1 year and renewable) may instead request a re-hearing on the conservatorship every six months. In addition, because this bill requires that a potential LPS conservatee is represented by counsel, his or her due process rights will arguably be protected. The American Association of Retired Persons, in support, writes:

Currently, one of the few persons who can recommend to the conservatorship investigator that a LPS conservatorship be established is the professional from the agency or facility providing intensive treatment or evaluation services. If an individual is not receiving such intensive treatment or evaluation services, however, no such recommendation can be made, and no LPS conservatorship may be contemplated.

AB 193 would fill an important gap by providing an alternate means by which medical evidence of the need for a LPS conservatorship can be presented to the investigating officer authorized to recommend the establishment of such conservatorships.

3. Opposition’s additional concerns

The California State Association of Counties, the County Behavioral Health Directors Association of California and the Urban Counties Caucus express concern about the potential costs, workload levels, and overall erosion of county authority in conservatorship investigations should this bill move forward. In opposition, these groups write:

While … AB 193 does not require the conservatorship officer to recommend conservatorship, it does compel the conservatorship officer to conduct a conservatorship investigation and report back to the Probate Court their findings. This is contrary to current law, will increase the number of LPS conservatorship referrals, and will increase the number of LPS conservatorship referrals, and will increase county costs.

Counties understand that the root issue and reason for this bill is to provide treatment to those who may be unable to comprehend their illnesses or actions. However, we note that a person suffering from a mental illness will likely touch the county mental health system and currently may be referred by that system for a LPS conservatorship. AB 193 would bypass the established mental health system and give probate judges the same authority over mental health evaluations as mental health practitioners.

Staff notes that while this bill would require the county officer to file his or her report with the recommending Probate Court, because the officer is already charged with producing this report this requirement is arguably supplementary, not contrary, to existing law. Additionally, in response to the above concerns, the Conference of California Bar Associations, sponsor, writes:

AB 193’s provisions apply only to a very small number of probate conservatees, who will be referred for investigation only upon sound medical evidence by probate judges who, in most cases, have extensive experience with LPS conservatorships. Many of these conservatees are likely to eventually wind up in the 5150 process because of the inability of their conservators to exercise effective control. For these reasons, AB 193 will not impose any additional burden on the LPS process or local governments. To the contrary, the authority granted under AB 193 will be used incredibly sparingly, only under extraordinary circumstances.

Contrary to what the opponents of the bill have alleged, the judges who will be making the referrals have significant expertise in LPS conservatorships, and will be referring only those current probate conservatees who based on the judges' experience, meet the stringent LPS standards. In 57 of California's 58 counties, the Mental Health (LPS) court is part of the Probate Division. In many of those counties (like Sacramento, and certainly every same-sized or smaller county), only a couple of judges handle both probate and LPS conservatorships. Those judges know very well the difference between a standard probate conservatee and one whose condition has deteriorated to the point where he/she needs the powers and oversight of a LPS conservatorship - because the judge also has been the one reviewing the evidence and granting or denying LPS conservatorships.

4. Author’s amendments

The author offers the following amendments to clarify that a potential LPS conservatee must be represented by counsel when petitioning the court for a recommendation for an LPS conservatorship, and further clarify that the Probate Court has the authority to order an investigation when making a recommendation for an LPS conservatorship.

Author’s amendment:

On page 4, line 6, strike “conservatee or” and “or both”

On page 4, line 7, strike “to” and insert “and order an investigation from”

Support: American Association of Retired Persons (AARP)

Opposition: California State Association of Counties; California State Association of Public Administrators, Public Guardians, and Public Conservators; County Behavioral Health Directors Association of California; Monterey County Board of Supervisors; San Joaquin County; Ventura County Board of Supervisors; Urban Counties Caucus

HISTORY

Source: Conference of California Bar Associations

Related Pending Legislation: None Known

Prior Legislation:

SB 364 (Steinberg, Chapter 567, Statutes of 2013), broadens the types of facilities that can be used for purposes of a 72-hour treatment and evaluation under the LPS Act and permits county mental health directors to develop procedures for the designation and training of professionals that carry out functions related to 72-hour holds.

SB 677 (Lanterman-Petris, Short, Chapter 1667, Statutes of 1967), expressed Legislative intent to end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders and provide for the prompt evaluation and treatment of persons with serious mental disorders.

Prior Vote:

Assembly Floor (Ayes 77, Noes 0)

Assembly Appropriations Committee (Ayes 17, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

Assembly Health Committee (Ayes 16, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 193

Author:(Maienschein)

As Amended Ver:May 28, 2015

Majority vote

SUMMARY: Permits a judge presiding over a probate conservatorship to recommend to the county investigating officer the establishment of a Lanterman-Petris-Short (LPS) conservatorship when there is evidence of grave disability as a result of a mental disorder or impairment by chronic alcoholism. Specifically, this bill:

1. Allows a Probate Court to recommend a conservatorship to the officer providing conservatorship investigation of the person's county of residence if the court, in a proceeding under the Probate Code, determines that a person for whom a conservatorship has been established under the Probate Code and may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism, to provide individualized treatment, supervision, and placement.

2. Requires, if the recommendation for conservatorship was made by the court, the existing probate conservator to disclose any records or information that may facilitate the investigation.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Potential state-reimbursable mandate costs, conservatively in the hundreds of thousands of dollars annually, as this bill is likely to compel a greater number of conservatorship investigations and reports. These costs are likely to be state-reimbursable.

2. In addition, counties could incur significant unknown costs associated with a larger number of conservatees, potentially resulting in cost shifting from one segment of local government to another. These costs are not state- reimbursable.

COMMENTS: According to the author, probate courts today are hampered in their ability to ensure proper care and treatment of conservatees who suffer from a mental illness, and there currently are a significant number of people who are not getting the care and treatment they need. Under the LPS Act, the individuals authorized to initiate conservatorship proceedings do not include probate judges or family members. The author contends that some counties are becoming more and more reluctant to initiate necessary conservatorship proceedings. This becomes an even greater issue with gravely disabled homeless persons who have no additional help or anyone to be a proponent for their well-being. They are continually dependent on other services that have limited availability for their survival and are unable to receive the assistance they really need.

The author contends that this creates a gap in treatment availability, making it harder for individuals who are not already hospitalized but whose problems stem from mental illness, alcoholism, or drug abuse, and thus cannot qualify for treatment under the Probate Code. By allowing probate judges to initiate LPS conservatorship proceedings, this bill is intended to remove obstacles to treatment for these individuals.

1. LPS conservatorship process. The LPS Act creates a series of processes for the involuntary treatment of individuals who are unwilling or unable to accept necessary mental health treatment, generally conditional upon the person being gravely disabled or posing a danger to self or others. An LPS conservatorship, which lasts for a year before it must be reinitiated and reapproved, is typically sought after an individual has received 72-hour evaluation and treatment and 14-day intensive treatment and continues to be gravely disabled. The process begins when the professional staff of the psychiatric facility, after having evaluated and treated the individual, makes a recommendation of conservatorship to the county conservatorship investigator (typically designated as an office in the county, such as the Public Guardian’s Office or the Office of the Public Conservator). The county conservatorship investigator is then required to conduct a comprehensive investigation and file a petition for conservatorship only if, after considering all available alternatives to conservatorship, there are no suitable alternatives available.

2. Probate conservatorships. Conservatorships governed by the Probate Code are the most common type of conservatorship. Probate conservatorships can be established for adults who are unable to provide properly for their personal needs for physical health, food, clothing, or shelter. These conservatees are often elderly people, but can also be seriously impaired younger people. A petition for probate conservatorship can be filed by a spouse, domestic partner, or family member of the proposed conservatee, any interested state or local agency, the conservatee himself or herself, or any other interested person or friend. Current law contains provisions related to conservatees who are unable to give informed consent for medical treatment and gives the conservator the exclusive authority to make health care decisions for the conservatee, including requiring the conservatee to receive health care, whether or not the conservatee objects. For conservatees with dementia, current law allows the conservator to place the conservatee in a locked nursing or residential care facility and authorize the administration of medications to treat dementia, provided that the court makes specified findings. However, current law does not contain provisions that allow a probate conservator to place a conservatee in a locked facility for any reason other than dementia.

The sponsors of this bill, Conference of California Bar Associations, state that this bill would allow a judge presiding over a probate conservatorship to recommend to the county investigating officer that a LPS conservatorship be established when there is medical evidence that an individual is suffering from a grave disability as a result of a mental disorder or impairment by chronic alcoholism. This provision fills a gap in the law.

The sponsor argues that currently, one of the few persons who can recommend to the conservatorship investigator that a LPS conservatorship be established are the professional from the agency or facility providing intensive treatment or evaluation services. If an individual is not receiving such intensive treatment or evaluation services, however, no such recommendation can be made, and no LPS conservatorship may be contemplated. At the same time, Probate Code Section 2356.5, governing traditional probate conservatorships, only allows for a conservatee to be treated in a secured facility or to be administered psychotropic medications when the conservatee has a diagnosis of dementia and not for any other mental health diagnosis or issue relating to alcohol abuse. The sponsor concludes this creates a "gap" in treatment availability for individuals who are not already hospitalized, and thus can’t be recommended, but whose problems stem from mental illness, alcoholism or drug abuse, and thus cannot qualify for treatment under the Probate Code.

The California Association of Counties, the County Behavioral Health Directors Association of California, and the Urban Counties Caucus state in opposition that counties are primarily concerned about the potential costs, workload levels, and overall erosion of county authority in conservatorship investigations associated with authorizing the Probate Court to recommend a LPS conservatorship to a county conservatorship officer and compel that officer to submit a report to the Probate Court within 30 days.

The opposition notes that currently, only a county conservatorship officer or such designation official of the county can conduct LPS conservatorship investigations to determine whether a person meets the statutory definition of gravely disabled. The opposition states that in compelling the conservatorship officer to conduct an investigation and report back to the Probate Court their findings, this bill is contrary to current law, and will increase the number of LPS conservatorship referrals, thereby increasing county costs. The opposition argues that should the mandate in this bill become law, counties not only anticipate a significant increase in workload and county costs for conservatorship investigations, but will also face increased costs due to the arbitrary and unrealistic 30-day mandated timeline for the investigation and submission of a report to the court.

Analysis Prepared by: Paula Villescaz / HEALTH / (916) 319-2097 FN: 0000849

Date of Hearing: May 6, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 193

Author:(Maienschein) – As Amended Ver:April 14, 2015

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill allows a probate court to recommend a Lanterman-Petris-Short (LPS) conservatorship for an individual for whom a conservatorship has been established under the Probate Code, subject to a hearing attended by the proposed conservatee or the proposed conservatee’s counsel, as specified.

It also requires the officer providing conservatorship investigation to file a copy of his or her report with the court making the recommendation in the probate conservatorship within 30 days of the recommendation.

FISCAL EFFECT:

1. Potential state-reimbursable mandate costs, conservatively in the hundreds of thousands of dollars annually, as this bill is likely to compel a greater number of conservatorship investigations and reports. These costs are likely to be state-reimbursable.

2. In addition, counties could incur significant unknown costs associated with a larger number of conservatees, potentially resulting in cost shifting from one segment of local government to another. These costs are not state- reimbursable.

COMMENTS:

1. Purpose. According to the author, many seriously mentally ill persons who might benefit from an LPS conservatorship cannot obtain it because their condition does not rise to the level of creating a "danger to themselves or others," as is required to trigger the "5150" and the eventual LPS process. This bill, therefore, would create an additional means by which an LPS conservatorship may be recommended to the county conservatorship investigator.

2. Background. California has two types of conservatorships. Probate conservatorships – established under the Probate Code – are established for adults who cannot adequately care for basic personal needs. Most probate conservatee are elderly persons, but can also include younger adults with severe developmental disabilities. Conservatorships established under the Lanterman-Petris-Short (LPS) Act, on the other hand, are for persons who are gravely disabled by mental illness or who pose a threat to themselves or others. LPS conservatorships are created when a psychiatric facility in which the prospective conservatee is held makes a recommendation to the county conservatorship investigator, who in turn may petition a superior court for the conservatorship.

A probate conservatorship does not allow the conservator to compel medical treatment on behalf of the conservatee if the conservatee refuses. The LPS conservator, on the other hand, may, if the court order so provides, compel psychiatric treatment and placement in a locked facility for a conservatee who is unwilling to accept voluntary treatment.

Individuals can only enter an LPS conservatorship through a the "5150 hold" process, specified in Welfare and Institutions Code 5150, whereby an officer or clinician may involuntarily detain a person suspected to have a mental disorder that makes him or her a danger to self, a danger to others, and/or is gravely disabled. An individual enters into an LPS conservatorship via an initial 72-hour 5150 hold for assessment, evaluation, and crisis intervention, which is then extended for a period of 14 or 30 days. After this period, if warranted, an authorized individual may recommend that the county conservatorship investigator petition the superior court for a year-long LPS conservatorship. This bill would bypass the requirement for a 5150 hold and associated statutory protections by allowing a probate court to directly recommend an LPS conservatorship to the county conservatorship investigator, for someone already in a probate conservatorship.

It is important to note this bill does not permit the court to establish an LPS conservatorship on its own motion; rather, this bill permits the court to make a recommendation, based on medical evidence, to the county conservatorship investigator. It would still be up to the investigator, if he or she concurs with the court, to act on that recommendation and petition a superior court for an LPS conservatorship.

3. Opposition. The California State Association of Counties (CSAC) and the California Behavioral Health Directors Association (CBHDA), and the Urban Counties Caucus oppose this bill, citing primarily workload and cost burdens on an overburdened public guardian system. Opposition believes the probate court authority to compel investigations will be used liberally and lead to many more unnecessary and inappropriate investigations.

4. Prior Legislation. AB 1725 (Maienschein) of 2014 was similar to this bill. It was held on the Suspense File of this committee.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 21, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 193

Author:(Maienschein) – As Amended Ver:April 14, 2015

SUBJECT:

Mental health: conservatorship hearings

KEY ISSUE: Should a probate court, based on medical evidence presented to it, be authorized to recommend a conservatorship for a probate conservatee who is gravely disabled by mental illness and unwilling to accept voluntary treatment?

SYNOPSIS

California has two types of conservatorships. Probate conservatorships are established for adults who cannot adequately care for basic personal needs. Most probate conservatees are either elderly persons or younger adults with severe developmental disabilities. Conservatorships established under the Lanterman-Petris-Short (LPS) Act, on the other hand, are for persons gravely disabled by mental illness. LPS conservatorships originate when a psychiatric facility in which the prospective conservatee is held makes a recommendation to a conservatorship investigator, who in turn may, if it concurs with the recommendation, petition a superior court for the LPS conservatorship. A critical difference between a probate conservatorship and the LPS conservatorship is that the former only allows the conservator to consent to medical treatment on behalf of the conservatee; the probate conservator cannot, with one exception, compel treatment if the conservatee refuses. The LPS conservator, on the other hand, may, if a court order so provides, compel psychiatric treatment and placement in a locked facility for a conservatee who is unwilling to accept voluntary treatment.

According to the author, many seriously mentally ill persons who might benefit from an LPS conservatorship and treatment cannot obtain it because they are not "gravely disabled," or a "danger to self or others," the latter of which is required for the initial hold which triggers the LPS process. This bill would create an additional means for recommending an LPS conservatorship to the county investigator. It would allow a probate court to make a recommendation for an LPS conservatorship to the county investigator, but only if the person is already under a probate conservatorship and the court has heard medical evidence supporting the recommendation. This bill does not permit the court to establish an LPS conservatorship on its own motion. It only permits the court to make a recommendation, based on medical testimony and consultation, to the county investigator. It would still be up to the investigator to act on that recommendation in accordance with all of the requirements of existing law. Last year's AB 1725, a nearly identical measure by the same author, passed out of this Committee after it was amended to address due process concerns. The bill passed out of the Assembly Health Committee on a 16-0 vote. The bill continues to be opposed by the counties and public guardians, who primarily contend that the measure would increase costs and workloads for counties and investigators.

SUMMARY:

Permits a probate court to recommend an LPS conservatorship to a county conservatorship investigator, as specified. Specifically, this bill:

1. Permits a court, after a hearing attended by the proposed conservatee or the proposed conservatee's counsel, or both, to recommend an LPS conservatorship to the county officer providing conservatorship investigations when the court, in consultation with a physician providing comprehensive evaluation or intensive treatment, in a probate conservatorship hearing determines, based on evidence presented to the court, including medical evidence, that a person for whom a probate conservatorship has been established, may be gravely disabled as a result of mental disorder or chronic alcoholism and is unwilling to accept, or incapable of accepting treatment voluntarily. Specifies that if the probate conservatee cannot afford counsel, the court shall appoint counsel for him or her.

2. Permits the officer, if the officer providing the conservatorship investigation concurs with the recommendation of the court, to petition the appropriate superior court to establish the LPS conservatorship.

3. Requires the officer providing the conservatorship investigation to file his or her report with the court that made the conservatorship investigation within 30 days of receiving a recommendation.

4. Requires an existing probate conservator, if the conservatorship is recommended by the court, to disclose any records or information that may facilitate the investigation.

EXISTING LAW:

1. Provides that if a person is gravely disabled as a result of mental illness, or is determined to be a danger to self or others, then a peace officer, the staff of a designated treatment facility or crisis team, or other professional person designated by the county, may, upon probable cause, take that person into custody for a period of up to 72 hours for assessment, evaluation, crisis intervention, or placement in a designated treatment facility. (Welfare & Institutions Code Section 5150.)

2. Provides that the person who has been detained for 72 hour, pursuant to the above, may be detained for up to14 days of intensive treatment if the person continues to pose a danger to self or others, or to be gravely disabled, and the person has been unwilling or unable to accept voluntary treatment. A person who has been detained for 14 days of intensive treatment may be detained for up to 30 days of intensive treatment if the person remains gravely disabled and is unwilling or unable to accept treatment voluntarily. (Welfare & Institutions Code Sections 5250, 5270.15.)

3. Allows the professional person in charge of a facility providing 72-hour, 14-day, or 30-day treatment to recommend an LPS conservatorship to the county conservatorship investigator for a person who is gravely disabled and is unwilling or unable to accept voluntary treatment. Requires the conservatorship investigator, if he or she concurs with the recommendation, to petition the superior court to establish an LPS conservatorship. (Welfare & Institutions Code Sections 5350 et seq.)

4. Gives the LPS conservator the right, if specified in the court order, to require the conservatee to receive treatment related specifically to remedying or preventing the recurrence of the conservatee's being gravely disabled. However, in the absence of such an order, the conservatee generally retains the right to give or withhold consent to medical treatment, except as specified. (Welfare & Institutions Code Sections 5358, 5358.2; see also Scott v. Superior Court (2012) 204 Cal. App. 4^th 326, rev. denied.)

5. Permits any interested person to petition the court for the appointment of a "conservator of the person" for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter. Permits the appointment of a "conservator of the estate" for a person who is unable to manage his or her financial resources or resist fraud or undue influence. (Probate Code Section 1801 (a)-(b).)

6. Permits a conservator under the Probate Code to place a conservatee in a locked facility only if there is clear and convincing evidence of all of the following: the conservatee has dementia; the conservatee lacks capacity to give informed consent, as specified, to this placement; the conservatee would benefit from this placement; and the court determines that placement in a locked facility is the least restrictive placement given the needs of the conservatee. (Probate Code Section 2356.5.)

FISCAL EFFECT:

As currently in print this bill is keyed fiscal.

COMMENTS:

California has two types of conservatorships. Probate conservatorships – established under the Probate Code – are for adults who cannot adequately care for their basic personal needs or manage their financial resources. Most probate conservatees are elderly persons or younger adults with severe developmental disabilities. A petition for a probate conservatorship can be filed by any interested person, though the petitioner is often a spouse or family member, or a local social welfare agency that has dealt with the proposed conservatee in some capacity. Conservatorships established under the Lanterman-Petris-Short (LPS) Act, on the other hand, are for persons who are gravely disabled by mental illness and who had previously committed to a psychiatric facility for 72 hours because they were deemed a threat to self or others. After the initial 72-hour evaluation in a psychiatric treatment facility (a so-called "5150" for the code section that authorizes it) the person may be placed on an additional 14-day hold. At the end of this 14-day period the director or other authorized professional of the psychiatric facility may, if warranted, recommend that the county conservatorship investigator (sometimes known as the "Public Guardian" or "County Conservatorship Officer") petition the superior court for a year-long LPS conservatorship.

A key difference between a probate conservatorship and an LPS conservatorship is that the probate conservatorship, as a general rule, only allows the conservator to consent to medical treatment on behalf of the conservatee. The probate conservator cannot, however, compel treatment if the conservatee refuses. One exception to this rule is that, if the conservatee suffers from dementia or certain other conditions exist, the conservator can compel commitment and appropriate treatment in a locked nursing facility. (Probate Code Section 2356.5.) The LPS conservator, on the other hand, may compel treatment for a conservatee who is unwilling to accept voluntary treatment, including forced placement in a locked facility and, under certain circumstances, administration of psychotropic drugs.

According to the author, many seriously mentally ill persons who might benefit from an LPS conservatorship cannot obtain one because their condition does not rise to the level of creating a "danger to themselves or others," as is required to trigger the initial "5150" hold and the eventual LPS process. This bill would create an additional means by which the LPS conservatorship may be recommended to the county conservatorship investigator. While existing law only allows the director or other authorized professional of a psychiatric facility to recommend an LPS conservatorship, this bill would allow a probate court to make a recommendation to the county investigator, but only if the person is already under a probate conservatorship and the court has heard medical evidence supporting its recommendation.

Bill Maintains Existing Due Process. Significantly, this bill does not permit the court to establish the LPS conservatorship on its own motion; rather, this bill permits the court to make a "recommendation," based on medical evidence presented at a hearing to the county conservatorship investigator. As recently amended, the bill would also require the court to consult with a physician who regularly provides comprehensive evaluation or intensive treatment. It would still be up to the investigator, if he or she concurs with the court, to act on that recommendation and petition a superior court for an LPS conservatorship. Although some opponents claim that this bill "circumvents the legal process" under the LPS Act and the corresponding "due process rights" that existing law affords, this does not appear to be the case. The only thing that this bill does is to allow a probate court (in addition to the director of a psychiatric facility, as authorized by current law) to make a recommendation. The recommendation can only be made at a hearing in which the probate conservatee is represented by counsel, where medical testimony supporting recommendation has been provided, and where the court has consulted with a psychiatric professional. Once this recommendation has been made, the county investigator may either concur or not. The process for establishing the LPS conservatorship and the due process that it entails remain unchanged.

Bill Covers a Seemingly Narrow Group of People. This bill would affect what seems to be a relatively small group of persons. Because the probate court could only recommend the LPS conservatorship for someone who is already under a probate conservatorship, this bill will only affect those persons who satisfy the criteria for both the probate and LPS conservatorship. This would seem to mitigate, to some degree, the concerns raised by the opposition that this bill will greatly increase the costs and workloads of county investigators, public conservators, and public guardians. Should the bill pass out of this Committee today, it will be referred to the Assembly Appropriations Committee where questions of costs and available resources will presumably be more fully considered.

ARGUMENTS IN SUPPORT: According to the author and sponsor, the Conference of California Bar Associations, probate courts today are hampered in their ability to ensure proper care and treatment of probate conservatees who suffer from a mental illness. The author contends that there is a growing class of people whose situation is not adequately covered by the requirements of either a probate conservatorship or an LPS conservatorship. The author notes, for example, that only professionals from the psychiatric facility treating a patient can make a recommendation for the LPS conservatorship. While many probate conservatees may suffer from serious, treatable mental illness, they do not necessarily end up in a psychiatric facility or get appropriate treatment because they may not meet the "5150" criteria necessary to trigger the LPS process. The law governing traditional probate conservatorships allows for treatment of a conservatee in a secured facility if the person has a diagnosis of dementia, but not for a younger person with a mental health diagnosis. The author contends that there are gaps between the probate and LPS conservatorship criteria which make it harder for mentally ill individuals who are not already hospitalized to qualify for either a probate or an LPS conservatorship. By allowing judges to initiate – but not mandate or circumvent – the LPS conservatorship process, this bill would remove obstacles to treatment for these individuals.

AARP supports this bill for substantially the same reasons as those noted above. AARP adds, however, that the costs will not be as great as opponents claim because "there is good reason to expect that most of the people served under AB 193 will not end up with the [Public Guardian] serving as the conservator." This is because, AARP contends, for probate conservatees "one of the following is likely true: (1) there is a sufficient estate to pay for a private professional conservator, or (2) people who care enough about the conservatee spent the money to initiative a probate conservatorship and therefore presumptively are willing to serve as LPS conservators."

ARGUMENTS IN OPPOSITION: This bill is opposed by the California State Association of Public Administrators, Public Guardians, and Public Conservators (Association). The Association makes two claims. First, it argues that AB 193 "circumvents the legal process established by the LPS Act in which an individual suffering from a mental health disorder who is involuntarily detained is afforded numerous due process rights." Second, the Association contends that the bill will increase costs and workloads, as county investigations are "expensive and take a lot of time and resources." The bill is also opposed by the California State Association of Counties, the County Behavioral Health Directors Association of California, and the Urban Counties Caucus who are "primarily concerned about the potential costs, workload levels, and overall erosion of county authority in conservatorship investigations should this measure move forward."

Recent Legislation: AB 1725 (2013-2014 sess.) by the same author was nearly identical to AB 193, the bill presently before the Committee. AB 1725 passed out of the Assembly Health Committee on a 16-0 vote and out of the Assembly Judiciary Committee on a 9-1 vote. It died in the Assembly Appropriations Committee.

SB 364 (Steinberg), Chapter 567, Statutes of 2013, broadens the types of facilities that can be used for purposes of a 72-hour treatment and evaluation under the LPS Act and permits county mental health directors to develop procedures for the designation and training of professionals that carry out functions related to 72-hour holds.

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

AARP

Opposition

California State Association of Counties

CA State Association of Public Administrators, Public Guardians, and Public Conservators

County Behavioral Health Directors Association of California

Urban Counties Caucus

Analysis Prepared by:

Thomas Clark/JUD./(916) 319-2334

Date of Hearing: April 7, 2015

ASSEMBLY COMMITTEE ON HEALTH

Rob Bonta, Chair

ABPCA Bill Id:AB 193

Author:(Maienschein) – As Introduced Ver:January 28, 2015

SUBJECT: Mental health: conservatorship hearings.

SUMMARY: Permits a judge presiding over a probate conservatorship to recommend to the county investigating officer the establishment of a Lanterman-Petris-Short (LPS) conservatorship when there is evidence of grave disability as a result of a mental disorder or impairment by chronic alcoholism. Specifically, this bill:

1. Allows a Probate Court to recommend a conservatorship to the officer providing conservatorship investigation of the person's county of residence if the court, in a proceeding under the Probate Code, determines that a person for whom a conservatorship has been established under the Probate Code and may be gravely disabled as a result of a mental disorder or impairment by chronic alcoholism, to provide individualized treatment, supervision, and placement.

2. Requires a report to be filed within 30 days by the officer providing the conservatorship investigation with the court making the recommendation in the probate conservatorship.

3. Requires, if the recommendation for conservatorship was made by the court, the existing probate conservator to disclose any records or information that may facilitate the investigation.

EXISTING LAW:

1. Provides for the involuntary commitment and treatment of individuals with specified mental disorders and for the protection of committed individuals, with the declared goal of ending inappropriate, indefinite, and involuntary commitment of mentally disordered persons, developmentally disabled persons, and persons impaired by chronic alcoholism.

2. Creates a series of processes for individuals to receive mental health treatment, including:
   
   

   1. A process for a person to be taken into custody, upon probable cause that they are a danger to self, a danger to others, or gravely disabled as a result of a mental health disorder, for a period of up to 72 hours, as specified;

2. For a person who has been detained for 72 hours, a process for the person to be detained for up to14 days of intensive treatment if the person continues to pose a danger to self or others, or to be gravely disabled, and the person has been unwilling or unable to accept voluntary treatment;

3. For a person who has been detained for 14 days of intensive treatment, a process for the person to be detained for up to 30 days of intensive treatment if the person remains gravely disabled and is unwilling or unable to accept treatment voluntarily, or up to 180 days if the person presents a demonstrated danger to others;

4. A process for the appointment of a conservator, known as LPS conservatorship, for a person who is gravely disabled as a result of a mental disorder or impairment by chronic alcoholism, to provide individualized treatment, supervision, and placement.
   
   

   1. Allows the professional person in charge of a facility providing 72-hour, 14-day, or 30-day treatment to recommend conservatorship to the conservatorship investigator for a person who is gravely disabled and is unwilling or unable to accept voluntary treatment;
      
      

   2. Requires the conservatorship investigator, if he or she concurs with the recommendation, to petition the superior court to establish LPS conservatorship or temporary (up to 30 days) conservatorship;

3. Requires the conservatorship investigator to investigate all available alternatives and recommend conservatorship only if no suitable alternatives are available. Requires the investigator to provide a report to the court that includes all relevant aspects of the person’s medical, psychological, financial, family, vocational and social condition, and information obtained from the person’s family members, close friends, and social worker or principal therapist;

4. Allows the report to recommend for or against giving the conservatee the right to: obtain a driver’s license; enter into contracts; vote; refuse or consent to medical treatment; and, possess a firearm;
   
   

5. Requires LPS conservatorships to terminate after one year, but allows the conservator, if he or she determines that conservatorship is still required, to petition the court for additional one-year periods;
   
   

6. Allows the initiation of LPS conservatorship proceedings upon the recommendation of the medical director of a state hospital, a professional person in charge of a local mental health facility, a local mental health director, or the Chief Deputy Secretary for Juvenile Justice, to the conservatorship investigator, under specified circumstances;
   
   

7. Requires counties to designate the agency or agencies to provide conservatorship investigation. Allows counties to designate that conservatorship services be provided by the public guardian or agency providing public guardian services;
   
   

8. Gives the person for whom conservatorship is sought the right to demand a court or jury trial on the issue of whether he or she is gravely disabled;
   
   

9. Provides that a person cannot be appointed an LPS conservator if the person can survive safely with the help of responsible family, friends, or others who indicate in writing that they are willing and able to help provide food, clothing, or shelter; and,
   
   

10. Requires the facility treating a person for whom LPS conservatorship is sought to advise the person that he or she may request that information about the time and place of the conservatorship hearing not be given to family members, in those circumstances where the proposed conservator is not a family member.
    
    

1. Establishes Laura’s Law, which allows county boards of supervisors, by resolution, to authorize court-ordered assisted outpatient treatment for a person with a mental illness who has a history of noncompliance with treatment and who is likely to be a danger to self or others, or gravely disabled, without treatment.

FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, probate courts today are hampered in their ability to ensure proper care and treatment of conservatees who suffer from a mental illness, and there currently are a significant number of people who are not getting the care and treatment they need. Under the LPS Act, the individuals authorized to initiate conservatorship proceedings do not include probate judges or family members. The author contends that some counties are becoming more and more reluctant to initiate necessary conservatorship proceedings. This becomes an even greater issue with gravely disabled homeless persons who have no additional help or anyone to be a proponent for their well-being. They are continually dependent on other services that have limited availability for their survival and are unable to receive the assistance they really need.

The author contends that this creates a gap in treatment availability, making it harder for individuals who are not already hospitalized but whose problems stem from mental illness, alcoholism, or drug abuse, and thus cannot qualify for treatment under the Probate Code. By allowing probate judges to initiate LPS conservatorship proceedings, this bill is intended to remove obstacles to treatment for these individuals.

2. BACKGROUND.

1. LPS conservatorship process. The LPS Act creates a series of processes for the involuntary treatment of individuals who are unwilling or unable to accept necessary mental health treatment, generally conditional upon the person being gravely disabled or posing a danger to self or others. An LPS conservatorship, which lasts for a year before it must be reinitiated and reapproved, is typically sought after an individual has received 72-hour evaluation and treatment and 14-day intensive treatment and continues to be gravely disabled. The process begins when the professional staff of the psychiatric facility, after having evaluated and treated the individual, makes a recommendation of conservatorship to the county conservatorship investigator (typically designated as an office in the county, such as the Public Guardian’s Office or the Office of the Public Conservator). The county conservatorship investigator is then required to conduct a comprehensive investigation and file a petition for conservatorship only if, after considering all available alternatives to conservatorship, there are no suitable alternatives available.
   
   

2. Probate conservatorships. Conservatorships governed by the Probate Code are the most common type of conservatorship. Probate conservatorships can be established for adults who are unable to provide properly for their personal needs for physical health, food, clothing, or shelter. These conservatees are often elderly people, but can also be seriously impaired younger people. A petition for probate conservatorship can be filed by a spouse, domestic partner, or family member of the proposed conservatee, any interested state or local agency, the conservatee himself or herself, or any other interested person or friend. Current law contains provisions related to conservatees who are unable to give informed consent for medical treatment and gives the conservator the exclusive authority to make health care decisions for the conservatee, including requiring the conservatee to receive health care, whether or not the conservatee objects. For conservatees with dementia, current law allows the conservator to place the conservatee in a locked nursing or residential care facility and authorize the administration of medications to treat dementia, provided that the court makes specified findings. However, current law does not contain provisions that allow a probate conservator to place a conservatee in a locked facility for any reason other than dementia.

3. MENTAL HEALTH NEEDS ASSESSMENT. In February 2012 the Department of Health Care Services commissioned a Mental Health and Substance Use System Needs Assessment

to satisfy federal requirements as part of California’s Section 1115 Bridge to Reform waiver approval. The report finds that there is an inadequate supply and a mal-distribution of inpatient psychiatric beds and of psychiatrists in the state. The report notes that a workforce needs assessment from 2009 indicated that an additional 336 general psychiatrist full time equivalent (FTE) positions, 241 child/adolescent psychiatrist FTE positions, and 112 geriatric psychiatrist FTE positions were needed at that time in order to meet demand in the public mental health system. The report further notes that rural or frontier areas of the state are mostly devoid of psychiatric beds: 26 counties have no inpatient psychiatric services of any kind. The report further notes that 27 psychiatric facilities located in 12 of the 58 counties are considered institutions for mental diseases and therefore cannot bill Medi-Cal for inpatient psychiatric services provided to their beneficiaries, further limiting access. In addition, the report notes that data provided by the federal Health Resources and Services Administration on mental health professional shortage areas indicates that approximately 3.8 million people, or 10.2% of the population of California, lives in one of the mental health professional shortage areas.

4. SUPPORT. The sponsors of the bill, Conference of California Bar Associations, state that AB 193 would allow a judge presiding over a probate conservatorship to recommend to the county investigating officer that a LPS conservatorship be established when there is medical evidence that an individual is suffering from a grave disability as a result of a mental disorder or impairment by chronic alcoholism. This provision fills a gap in the law.

The sponsor argues that currently, one of the few persons who can recommend to the conservatorship investigator that a LPS conservatorship be established are the professional from the agency or facility providing intensive treatment or evaluation services. If an individual is not receiving such intensive treatment or evaluation services, however, no such recommendation can be made, and no LPS conservatorship may be contemplated. At the same time, Probate Code §2356.5, governing traditional probate conservatorships, only allows for a conservatee to be treated in a secured facility or to be administered psychotropic medications when the conservatee has a diagnosis of dementia and not for any other mental health diagnosis or issue relating to alcohol abuse. The sponsor concludes this creates a “gap” in treatment availability for individuals who are not already hospitalized, and thus can’t be recommended, but whose problems stem from mental illness, alcoholism or drug abuse, and thus cannot qualify for treatment under the Probate Code.

5. OPPOSITION. The California Association of Counties, the County Behavioral Health Directors Association of California, and the Urban Counties Caucus state in opposition that counties are primarily concerned about the potential costs, workload levels, and overall erosion of county authority in conservatorship investigations associated with authorizing the Probate Court to recommend a LPS conservatorship to a county conservatorship officer and compel that officer to submit a report to the Probate Court within 30 days.

The opposition notes that currently, only a county conservatorship officer or such designation official of the county can conduct LPS conservatorship investigations to determine whether a person meets the statutory definition of gravely disabled. The opposition states that in compelling the conservatorship officer to conduct an investigation and report back to the Probate Court their findings, the bill is contrary to current law, and will increase the number of LPS conservatorship referrals, thereby increasing county costs. The opposition argues that should the mandate in this bill become law, counties not only anticipate a significant increase in workload and county costs for conservatorship investigations, but will also face increased costs due to the arbitrary and unrealistic 30-day mandated timeline for the investigation and submission of a report to the court.

6. PREVIOUS LEGISLATION.

1. SB 585 (Steinberg and Correa), Chapter 288, Statutes of 2013, clarifies that Mental Health Services Act funds and various County Realignment accounts may be used to provide mental health services under Laura’s Law and allows counties to opt to implement Laura’s Law through the county budget process.

2. SB 364 (Steinberg), Chapter 567, Statutes of 2013, broadens the types of facilities that can be used for purposes of a 72-hour treatment and evaluation under the LPS Act and permits county mental health directors to develop procedures for the designation and training of professionals that carry out functions related to 72-hour holds.

3. AB 1424 (Thomson), Chapter 506, Statutes of 2001, makes various changes to the LPS Act to: increase the involvement of family members in commitment hearings for the mentally ill; require more use of a patient’s medical and psychiatric records in these hearings; and prohibit health plans and insurers from using the commitment status of a mentally ill person to determine eligibility for claim reimbursement.

4. SB 665 (Petris), Chapter 681, Statutes of 1991, establishes the right, under the LPS Act, to refuse antipsychotic medication and establishes hearing procedures to determine a person’s capacity to refuse treatment with antipsychotic medication.

5. AB 2541 (Bronzan and Mojonnier), Chapter 1286, Statutes of 1985, authorizes county mental health programs to initiate services to various target populations, requires various studies and planning activities, and prohibits mental health personnel from instructing law enforcement personnel to take individuals detained for mental health evaluations to jail solely due to the unavailability of a mental health facility bed.
   
   

6. SB 677 (Lanterman, Petris, and Short), Chapter 1667, Statutes of 1967, enacts the LPS Act, which governs involuntary civil commitment for individuals with mental illness, with the intent to end inappropriate, indefinite, and involuntary commitment and provide for prompt evaluation and treatment.
   
   

7. AB 987 (Maienschein), which died without a hearing in the Assembly Health Committee, would have required the conservatorship investigator to petition for conservatorship if specified professional staff of a treatment facility recommends conservatorship, thereby eliminating the conservatorship investigator’s discretion to not concur with the professional staff’s recommendation.
   
   

7. DOUBLE REFERRAL. This bill is double referred, upon passage of this Committee, it will be referred to the Assembly Committee on Judiciary.

8. COMMITTEE AMENDMENTS. This bill allows probate courts to initiate conservatorship proceedings. Under current law, the LPS conservatorship process is initiated by a health care provider who makes a recommendation for LPS conservatorship to the county conservatorship investigator. This bill, by allowing the initial recommendation to come from a probate court, bypasses the provider, creating subsequent gaps in the protections that currently exist in the LPS conservatorship process. Because there would be no health care provider, known in law as the professional person, or facility at the start of the process, the bill should be amended to specify that a court can only recommend a conservatorship after consulting with a health care provider.

The Committee may wish to make the following amendment on page 4, line 3 after "court" insert: in consultation with a professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment,

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

Opposition

California State Association of Counties

County Behavioral Health Directors Association of California

Urban Counties Caucus

Analysis Prepared by: Paula Villescaz / HEALTH / (916) 319-2097