BILL NUMBER: AB 436	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Jones

                        FEBRUARY 19, 2015

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


	LEGISLATIVE COUNSEL'S DIGEST


   AB 436, as introduced, 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 denial of that
authority to a conservator, to either discharge the attorney or
order continuation of the representation.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated 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 
shall be   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 denial of authority to a conservator under subdivisions
(b) or (c), the court shall discharge the attorney or order the
continuation of the legal representation. 
   (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.