Lanterman-Petris-Short Act: conservatorships., the official text

An act to amend Sections 5114, 5350, 5354, and 5358 of the Welfare and Institutions Code, relating to behavioral health.

LEGISLATIVE COUNSEL'S DIGEST

(1) Existing law, the Lanterman-Petris-Short (LPS) Act, authorizes the involuntary commitment and treatment of a person, when the person, as a result of a mental health disorder, is a danger to themselves or others, or is gravely disabled. For the purposes of these provisions, existing law defines “gravely disabled” as a condition in which a person, as a result of a mental health disorder, a severe substance use disorder, or a co-occurring mental health disorder and a severe substance use disorder, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care.
Existing law also authorizes a conservator of a person, estate, or person and the estate to be appointed for a person who is gravely disabled or impaired by chronic alcoholism, subject to specified procedures. Existing law provides the person for whom conservatorship is sought to have the right to demand a court or jury trial on the issue of whether the person is gravely disabled.
Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent, and establishes a process by which a defendant’s mental competency is evaluated.
This bill would prohibit a court, for purposes of LPS conservatorship, from determining a person’s ability to provide for their basic personal needs based solely on the fact that the person has temporary access to those basic personal needs while incarcerated. The bill would also authorize a district attorney to be present and represent public safety interests at any hearing to determine whether an individual is gravely disabled for purposes of the LPS Act.
Existing law requires the court to determine the most appropriate placement for a conservatee who is gravely disabled, as defined. Existing law requires the officer providing conservatorship investigation to investigate all available alternatives to conservatorship, as applicable, and to render to the court a comprehensive, written report of the investigation prior to the hearing, as specified.
This bill would authorize the district attorney to review all filed documents regarding the investigation, initiation, termination, or modification of, and to be present and represent public safety interests at all hearings that consider, a conservatorship of a person who is gravely disabled, as defined by being found mentally incompetent and meeting the above-described conditions, to provide input to the court about appropriate placement or interim placement by the public conservator. The bill would require a copy of the conservatorship investigation report to be transmitted to the district attorney if the investigation was initiated as part of a determination of mental competence for trial. The bill would authorize the district attorney, if the individual has been appointed a conservator under specified provisions, to challenge the recommendation of the public conservator after the conservatorship investigation for an abuse of discretion in a contested hearing before a judge. The bill would prohibit the district attorney from using the information contained in these reports in subsequent criminal proceedings, except as specified. To the extent the bill imposes a higher level of service on county agencies that prepare and transmit conservatorship investigation reports and on a district attorney to receive those reports, the bill would impose a state-mandated local program.
This bill would authorize a county with a population size of 750,000 or greater to consider prioritizing the placement of specified conservatees in a state hospital run by the State Department of State Hospitals if at least 40 of those conservatees are waiting for placement in a state hospital. The bill would also authorize the placement to be on an interim basis at a county detention facility pending acceptance into a facility that achieves the purposes of treatment of the conservatee and protection of the public. The bill would require the conservatee to receive treatment services in accordance with the conservatorship plan within the detention facility pending permanent placement and would require the court to review the conservator’s placement efforts every 60 calendar days.
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 the statutory provisions noted above.

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

SECTION 1.
Section 5114 of the Welfare and Institutions Code is amended to read:
5114.
(a) At any judicial proceeding under the provisions of this division, allegations that the person is a danger to others, or to themselves, or gravely disabled as a result of mental disorder or impairment by chronic alcoholism, shall be presented by the district attorney for the county, unless the board of supervisors, by ordinance or resolution, delegates such duty to the county counsel.
(b) Notwithstanding any ordinance or resolution, the district attorney may be present and represent public safety interests at any hearing to determine whether an individual satisfies the requirements set forth in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008.

SEC. 2.
Section 5350 of the Welfare and Institutions Code is amended to read:
5350.
A conservator of the person, of the estate, or of the person and the estate may be appointed for a person who is gravely disabled or impaired by chronic alcoholism.
The procedure for establishing, administering, and terminating a conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code, except as follows:
(a) A conservator may be appointed for a gravely disabled minor.
(b) (1) Appointment of a conservator under this part, including the appointment of a conservator for a person who is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008, shall be subject to the list of priorities in Section 1812 of the Probate Code unless the officer providing conservatorship investigation recommends otherwise to the superior court.
(2) In appointing a conservator for a person who is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008, the court shall consider the purposes of protection of the public and the treatment of the conservatee. Notwithstanding any other provision of this section, the court shall not appoint the proposed conservator if it determines that appointment of the proposed conservator will not result in adequate protection of the public.
(c) A conservatorship of the estate pursuant to this chapter shall not be established if a conservatorship or guardianship of the estate exists under the Probate Code. When a gravely disabled person already has a guardian or conservator of the person appointed under the Probate Code, the proceedings under this chapter shall not terminate the prior proceedings but shall be concurrent with and superior thereto. The superior court may appoint the existing guardian or conservator of the person or another person as conservator of the person under this chapter.
(d) (1) The person for whom conservatorship is sought shall have the right to demand a court or jury trial on the issue of whether the person is gravely disabled. Demand for court or jury trial shall be made within five days following the hearing on the conservatorship petition. If the proposed conservatee demands a court or jury trial before the date of the hearing as provided for in Section 5365, the demand shall constitute a waiver of the hearing.
(2) The court or jury trial shall commence within 10 days of the date of the demand, except that the court shall continue the trial date for a period not to exceed 15 days upon the request of counsel for the proposed conservatee. Failure to commence the trial within that period of time is grounds for dismissal of the conservatorship proceedings.
(3) A court shall not determine a person’s ability to provide for their basic personal needs outlined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 based solely on the fact that the person has temporary access to those basic personal needs while incarcerated.
(4) This right shall also apply in subsequent proceedings to reestablish conservatorship.
(e) (1) Notwithstanding subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008, a person is not “gravely disabled” if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the person’s basic personal needs.
(2) However, unless they specifically indicate in writing their willingness and ability to help, family, friends, or others shall not be considered willing or able to provide this help.
(3) The purpose of this subdivision is to avoid the necessity for, and the harmful effects of, requiring family, friends, and others to publicly state, and requiring the court to publicly find, that no one is willing or able to assist a person with a grave disability.
(4) This subdivision does not apply to a person who is gravely disabled as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008.
(f) Conservatorship investigation shall be conducted pursuant to this part and is not subject to Section 1826 of the Probate Code or Chapter 2 (commencing with Section 1850) of Part 3 of Division 4 of the Probate Code.
(g) Notice of proceedings under this chapter shall be given to a guardian or conservator of the person or estate of the proposed conservatee appointed under the Probate Code.
(h) As otherwise provided in this chapter.

SEC. 3.
Section 5354 of the Welfare and Institutions Code is amended to read:
5354.
(a) The officer providing conservatorship investigation shall investigate all available alternatives to conservatorship, including, but not limited to, assisted outpatient treatment pursuant to Section 5346 and the Community Assistance, Recovery, and Empowerment (CARE) Act program pursuant to Section 5978, as applicable, and shall recommend conservatorship to the court only if no suitable alternatives are available. This officer shall render to the court a written report of investigation prior to the hearing. The report to the court shall be comprehensive and shall contain 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, social worker, or principal therapist. The report shall also contain all available information concerning the person’s real and personal property. The facilities providing intensive treatment or comprehensive evaluation shall disclose any records or information that may facilitate the investigation. If the officer providing conservatorship investigation recommends either for or against conservatorship, the officer shall set forth all alternatives available, including conservatorship, assisted outpatient treatment pursuant to Section 5346 and the CARE Act program pursuant to Section 5978, as applicable, and all other less restrictive alternatives.
(1) A copy of the report shall be transmitted to all of the following:
(A) The individual who originally recommended conservatorship.
(B) The person or agency, if any, recommended to serve as conservator.
(C) If the investigation was initiated pursuant to paragraph (3) of subdivision (c) of Section 1370 of the Penal Code, the district attorney.
(D) The person recommended for conservatorship.
(2) The district attorney shall not use information contained in the report in any subsequent criminal proceedings, except as provided in paragraph (3).
(3) The court may receive the report in evidence and may read and consider the contents thereof in rendering its judgment. If the individual has been appointed a conservator under paragraph (2) of subdivision (b) of Section 5350, the court may alternatively set a new competency hearing pursuant to Section 1369 of the Penal Code if the investigation includes competency findings by a psychiatrist or psychologist that the person is competent.
(b) Notwithstanding Section 5328, when a court with jurisdiction over a person in a criminal case orders an evaluation of the person’s mental condition pursuant to Section 5200, and that evaluation leads to a conservatorship investigation, the officer providing the conservatorship investigation shall serve a copy of the report required under subdivision (a) upon the defendant or the defendant’s counsel. Upon the prior written request of the defendant or the defendant’s counsel, the officer providing the conservatorship investigation shall also submit a copy of the report to the court hearing the criminal case, the district attorney, and the county probation department. The conservatorship investigation report and the information contained in that report, shall be kept confidential and shall not be further disclosed to anyone without the prior written consent of the defendant. After disposition of the criminal case, the court shall place all copies of the report in a sealed file, except as follows:
(1) The defendant and the defendant’s counsel may retain their copy.
(2) If the defendant is placed on probation status, the county probation department may retain a copy of the report for the purpose of supervision of the defendant until the probation is terminated, at which time the probation department shall return its copy of the report to the court for placement into the sealed file.
(c) If the individual has been appointed a conservator under paragraph (2) of subdivision (b) of Section 5350, the district attorney may challenge the recommendation of the public conservator after the conservatorship investigation for an abuse of discretion in a contested hearing before a judge. The district attorney shall have the burden of proof.

SEC. 4.
Section 5358 of the Welfare and Institutions Code is amended to read:
5358.
(a) (1) When ordered by the court after the hearing required by this section, a conservator appointed pursuant to this chapter shall place their conservatee as follows:
(A) For a conservatee who is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008, in the least restrictive alternative placement, as designated by the court.
(B) For a conservatee who is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008, in a placement that achieves the purposes of treatment of the conservatee and protection of the public.
(2) The placement may include a medical, psychiatric, nursing, or other state-licensed facility, or a state hospital, county hospital, hospital operated by the Regents of the University of California, a United States government hospital, or other nonmedical facility approved by the State Department of Health Care Services or an agency accredited by the State Department of Health Care Services, or in addition to any of the foregoing, in cases of chronic alcoholism, to a county alcoholic treatment center.
(b) A conservator shall also have the right, if specified in the court order, to require their conservatee to receive treatment related specifically to remedying or preventing the recurrence of the conservatee’s being gravely disabled, or to require their conservatee to receive routine medical treatment unrelated to remedying or preventing the recurrence of the conservatee’s being gravely disabled. Except in emergency cases in which the conservatee faces loss of life or serious bodily injury, no surgery shall be performed upon the conservatee without the conservatee’s prior consent or a court order obtained pursuant to Section 5358.2 specifically authorizing that surgery.
(c) (1) For a conservatee who is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008, if the conservatee is not to be placed in the conservatee’s own home or the home of a relative, first priority shall be to placement in a suitable facility as close as possible to the conservatee’s home or the home of a relative. For the purposes of this section, suitable facility means the least restrictive residential placement available and necessary to achieve the purpose of treatment. At the time that the court considers the report of the officer providing conservatorship investigation specified in Section 5356, the court shall consider available placement alternatives. After considering all the evidence the court shall determine the least restrictive and most appropriate alternative placement for the conservatee. The court shall also determine those persons to be notified of a change of placement. The fact that a person for whom conservatorship is recommended is not an inpatient shall not be construed by the court as an indication that the person does not meet the criteria of grave disability.
(2) (A) For a conservatee who is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008, first priority shall be placement in a facility that achieves the purposes of treatment of the conservatee and protection of the public. The court shall determine the most appropriate placement for the conservatee. In a county with a population greater than 750,000, a county may consider prioritizing the placement of conservatees pursuant to this subparagraph in a state hospital run by the State Department of State Hospitals if at least 40 of those conservatees are waiting for placement in a state hospital. Placement may also include an interim placement at a county detention facility pending acceptance into a facility that achieves the purposes of treatment of the conservatee and protection of the public. A conservatee shall receive treatment services in accordance with the conservatorship plan within the detention facility pending permanent placement. The court shall review the conservator’s placement efforts every 60 calendar days. The court shall also determine those persons to be notified of a change of placement, and additionally require the conservator to notify the district attorney or attorney representing the originating county prior to any change of placement.
(B) The district attorney may review all filed documents regarding the investigation, initiation, termination, or modification of, and may be present and represent public safety interests at all hearings that consider, a conservatorship of a person who is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008, to provide input to the court about appropriate placement or interim placement by the public conservator, without regard to whether any conservatorship is initiated. The district attorney shall not use documents or information obtained from their review in any subsequent criminal proceedings.
(3) For any conservatee, if requested, the local mental health director shall assist the conservator or the court in selecting a placement facility for the conservatee. When a conservatee who is receiving services from the local mental health program is placed, the conservator shall inform the local mental health director of the facility’s location and any movement of the conservatee to another facility.
(d) (1) Except for a conservatee who is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008, the conservator may transfer their conservatee to a less restrictive alternative placement without a further hearing and court approval. In any case in which a conservator has reasonable cause to believe that their conservatee is in need of immediate more restrictive placement because the condition of the conservatee has so changed that the conservatee poses an immediate and substantial danger to themself or others, the conservator shall have the right to place their conservatee in a more restrictive facility or hospital. Notwithstanding Section 5328, if the change of placement is to a placement more restrictive than the court-determined placement, the conservator shall provide written notice of the change of placement and the reason therefor to the court, the conservatee’s attorney, the county patient’s rights advocate and any other persons designated by the court pursuant to subdivision (c).
(2) (A) For a conservatee who is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008, the conservator shall not transfer their conservatee without providing written notice of the proposed change of placement and the reason therefor to the court, the conservatee’s attorney, the county patient’s rights advocate, the district attorney of the county that made the commitment, and any other persons designated by the court to receive notice. If any person designated to receive notice objects to the proposed transfer within 10 days after receiving notice, the matter shall be set for a further hearing and court approval. The notification and hearing is not required for the transfer of persons between state hospitals.
(B) The district attorney of the county that made the commitment may be present at a hearing to transfer a conservatee who is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008, to an alternative placement.
(3) At a hearing where the conservator is seeking placement to a less restrictive alternative placement pursuant to paragraph (2), the placement shall not be approved where it is determined by a preponderance of the evidence that the placement poses a threat to the safety of the public, the conservatee, or any other individual.
(4) A hearing as to placement to a less restrictive alternative placement, whether requested pursuant to paragraph (2) or pursuant to Section 5358.3, shall be granted no more frequently than is provided for in Section 5358.3.

SEC. 5.
If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.