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AB-436 Guardian or conservator: powers and duties.(2015-2016)

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Assembly Bill No. 436
CHAPTER 197

An act to amend Section 2356.5 of the Probate Code, relating to protective proceedings.

[ Approved by Governor  August 13, 2015. Filed with Secretary of State  August 13, 2015. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 436, Jones. Guardian or conservator: powers and duties.
Existing law provides that, upon a court’s findings that a conservatee has dementia, as defined, and a functional impairment, a conservator may place the conservatee in a prescribed secured residential or nursing facility and authorize the administration of prescribed medications appropriate for the care and treatment of dementia. A petition for authority to act under these provisions requires, among other things, that the conservatee be represented by an attorney, as provided.
This bill would require the court, upon granting or denying that authority to a conservator, to either discharge the attorney or order continuation of the representation, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 2356.5 of the Probate Code is amended to read:

2356.5.
 (a) The Legislature hereby finds and declares:
(1) That people with dementia, as defined in the last published edition of the “Diagnostic and Statistical Manual of Mental Disorders,” should have a conservatorship to serve their unique and special needs.
(2) That, by adding powers to the probate conservatorship for people with dementia, their unique and special needs can be met. This will reduce costs to the conservatee and the family of the conservatee, reduce costly administration by state and county government, and safeguard the basic dignity and rights of the conservatee.
(3) That it is the intent of the Legislature to recognize that the administration of psychotropic medications has been, and can be, abused by caregivers and, therefore, granting powers to a conservator to authorize these medications for the treatment of dementia requires the protections specified in this section.
(b) Notwithstanding any other law, a conservator may authorize the placement of a conservatee in a secured perimeter residential care facility for the elderly operated pursuant to Section 1569.698 of the Health and Safety Code, and which has a care plan that meets the requirements of Section 87705 of Title 22 of the California Code of Regulations, upon a court’s finding, by clear and convincing evidence, of all of the following:
(1) The conservatee has dementia, as defined in the last published edition of the “Diagnostic and Statistical Manual of Mental Disorders.”
(2) The conservatee lacks the capacity to give informed consent to this placement and has at least one mental function deficit pursuant to subdivision (a) of Section 811, and this deficit significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions pursuant to subdivision (b) of Section 811.
(3) The conservatee needs or would benefit from a restricted and secure environment, as demonstrated by evidence presented by the physician or psychologist referred to in paragraph (3) of subdivision (f).
(4) The court finds that the proposed placement in a locked facility is the least restrictive placement appropriate to the needs of the conservatee.
(c) Notwithstanding any other law, a conservator of a person may authorize the administration of medications appropriate for the care and treatment of dementia, upon a court’s finding, by clear and convincing evidence, of all of the following:
(1) The conservatee has dementia, as defined in the last published edition of the “Diagnostic and Statistical Manual of Mental Disorders.”
(2) The conservatee lacks the capacity to give informed consent to the administration of medications appropriate to the care of dementia, and has at least one mental function deficit pursuant to subdivision (a) of Section 811, and this deficit or deficits significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions pursuant to subdivision (b) of Section 811.
(3) The conservatee needs or would benefit from appropriate medication as demonstrated by evidence presented by the physician or psychologist referred to in paragraph (3) of subdivision (f).
(d) Pursuant to subdivision (b) of Section 2355, in the case of a person who is an adherent of a religion whose tenets and practices call for a reliance on prayer alone for healing, the treatment required by the conservator under subdivision (c) shall be by an accredited practitioner of that religion in lieu of the administration of medications.
(e) A conservatee who is to be placed in a facility pursuant to this section shall not be placed in a mental health rehabilitation center as described in Section 5675 of the Welfare and Institutions Code, or in an institution for mental disease as described in Section 5900 of the Welfare and Institutions Code.
(f) A petition for authority to act under this section is governed by Section 2357, except:
(1) The conservatee shall be represented by an attorney pursuant to Chapter 4 (commencing with Section 1470) of Part 1. Upon granting or denying authority to a conservator under this section, the court shall discharge the attorney or order the continuation of the legal representation, consistent with the standard set forth in subdivision (a) of Section 1470.
(2) The conservatee shall be produced at the hearing, unless excused pursuant to Section 1893.
(3) The petition shall be supported by a declaration of a licensed physician, or a licensed psychologist within the scope of his or her licensure, regarding each of the findings required to be made under this section for any power requested, except that the psychologist has at least two years of experience in diagnosing dementia.
(4) The petition may be filed by any of the persons designated in Section 1891.
(g) The court investigator shall annually investigate and report to the court every two years pursuant to Sections 1850 and 1851 if the conservator is authorized to act under this section. In addition to the other matters provided in Section 1851, the conservatee shall be specifically advised by the investigator that the conservatee has the right to object to the conservator’s powers granted under this section, and the report shall also include whether powers granted under this section are warranted. If the conservatee objects to the conservator’s powers granted under this section, or the investigator determines that some change in the powers granted under this section is warranted, the court shall provide a copy of the report to the attorney of record for the conservatee. If no attorney has been appointed for the conservatee, one shall be appointed pursuant to Chapter 4 (commencing with Section 1470) of Part 1. The attorney shall, within 30 days after receiving this report, do one of the following:
(1) File a petition with the court regarding the status of the conservatee.
(2) File a written report with the court stating that the attorney has met with the conservatee and determined that the petition would be inappropriate.
(h) A petition to terminate authority granted under this section shall be governed by Section 2359.
(i) Nothing in this section shall be construed to affect a conservatorship of the estate of a person who has dementia.
(j) Nothing in this section shall affect the laws that would otherwise apply in emergency situations.
(k) Nothing in this section shall affect current law regarding the power of a probate court to fix the residence of a conservatee or to authorize medical treatment for any conservatee who has not been determined to have dementia.