Bill Text: CA AB2034 | 2013-2014 | Regular Session | Amended
Bill Title: Elder and dependent adults.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2014-08-27 - Withdrawn from committee. Re-referred to Com. on RLS. [AB2034 Detail]
Download: California-2013-AB2034-Amended.html
BILL NUMBER: AB 2034 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 22, 2014
AMENDED IN SENATE AUGUST 20, 2014
AMENDED IN SENATE JULY 1, 2014
AMENDED IN SENATE JUNE 11, 2014
AMENDED IN ASSEMBLY MAY 23, 2014
AMENDED IN ASSEMBLY MARCH 28, 2014
AMENDED IN ASSEMBLY MARCH 19, 2014
AMENDED IN ASSEMBLY MARCH 11, 2014
INTRODUCED BY Assembly Member Gatto
FEBRUARY 20, 2014
An act to amend Section 15657.03 of the Welfare and
Institutions Code add Section 2361 to, and to add and
repeal Chapter 7 (commencing with Section 3820) to Part 8 of Division
4 of the Probate Code , relating to elder and dependent adults.
LEGISLATIVE COUNSEL'S DIGEST
AB 2034, as amended, Gatto. Elder and dependent adults.
Existing law requires the conservator of a person to be
responsible for the care, custody, control, and education of the
conservatee, except when the court, in its discretion, limits the
powers and duties of the conservator, as specified.
This bill would require the conservator of an elder or dependent
adult to inform the relatives of the conservatee whenever the
conservatee dies or is admitted to a medical facility for acute care
for a period of 3 days or more and would require the conservator, in
the event of the death of the conservatee, to inform the relatives of
any funeral arrangements and the location of the conservatee's final
resting place.
Existing law authorizes a conservator or a trustee of an elder or
dependent adult, an attorney-in-fact of an elder or dependent adult,
a person appointed as a guardian ad litem for an elder or dependent
adult, or another person legally authorized to seek a protective
order on behalf of an elder or dependent adult who has suffered
physical abuse, neglect, financial abuse, abandonment, isolation,
abduction, or other treatment with resulting physical harm or pain or
mental suffering, or the deprivation by a care custodian of goods or
services that are necessary to avoid physical harm or mental
suffering.
This bill would allow a relative of the first degree to bring a
petition for a visitation order to enjoin a respondent from keeping
an elder or dependent adult in isolation from contact with the
petitioner.
This bill would, for purposes of a petition alleging abuse in the
form of isolation, as defined, allow the petition to be brought on
behalf of an abused elder or dependent adult by a relative of the
first degree of the elder or dependent adult who seeks visitation
with the isolated elder or dependent adult.
The bill would require the court to determine whether the
elder or dependent adult on whose behalf the petition was filed has
retained or intends to retain an attorney, and if the elder or
dependent adult has not retained an attorney and does not plan to
retain one, allow the court to appoint an attorney.
The bill would allow the court to appoint counsel to represent the
proposed visitee if the proposed visitee has not retained an attorney
or is unable to retain an attorney and requests the appointment of
counsel. If an attorney is appointed, the bill would require
the court to fix a reasonable sum for the reasonable costs
and fees compensation and expenses of the
elder or dependent adult's attorney proposed
visitee's counsel . The bill would allow the court to order the
respondent, if the petition is granted, or the relative of
the first degree, if the petition is denied, to pay the reasonable
fees and costs of the elder or dependent adult's attorney. The bill
would require the court to determine the ability of the person to pay
these fees and costs nonprevailing party to pay the
fees and costs of the proposed visitee's counsel and would
require the county to pay to the extent the person is unable to pay.
By requiring the county to pay these costs, this bill would impose a
state-mandated local program.
The bill would make these provisions operative on January 1, 2016,
and would repeal these provisions on January 1, 2019.
Because a violation of a court order issued pursuant to the above
provisions would be punishable as contempt, a misdemeanor, this bill
would create a new crime and would thereby 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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2361 is added to the
Probate Code , immediately following Section 2360
, to read:
2361. A conservator of an elder or dependent adult shall inform
the relatives of the conservatee, as listed in subdivision (b) of
Section 1821, whenever the conservatee dies or is admitted to a
medical facility for acute care for a period of three days or more.
In the case of death, the conservator shall inform the relatives of
any funeral arrangements and the location of the conservatee's final
resting place.
SEC. 2. Chapter 7 (commencing with Section 3820)
is added to Part 8 of Division 4 of the Probate Code
, to read:
CHAPTER 7. VISITATION OF ELDER OR DEPENDENT ADULT WITHOUT
CONSERVATOR
3820. (a) A petition may be brought for a visitation order
seeking to enjoin a respondent from keeping a proposed visitee in
isolation from contact with the petitioner.
(b) For the purposes of this section:
(1) "Elder" has the same meaning as defined in Section 15610.27 of
the Welfare and Institutions Code.
(2) "Dependent adult" has the same meaning as defined in Section
15610.23 of the Welfare and Institutions Code.
(3) "Isolation" has the same meaning as defined in Section
15610.43 of the Welfare and Institutions Code.
(4) "Petitioner" means a person who is an adult relative in the
first degree of the proposed visitee.
(5) "Proposed visitee" means the elder or dependent adult who is
under the care or control of the respondent.
(6) "Respondent" means the person who is alleged to be isolating
the proposed visitee and, if the petition is granted, the restrained
person.
(7) "Visitation" means any in-person meeting between a proposed
visitee and the petitioner.
(8) "Visitation order" means an order enjoining a party from
keeping the proposed visitee in isolation from contact with the
petitioner that is issued by a court after notice and hearing.
(c) (1) If the proposed visitee resides in a long-term care
facility, as defined in Section 9701 of the Welfare and Institutions
Code, or a residential facility, as defined in Section 1502 of the
Health and Safety Code, then an order shall not be issued under this
section, and Section 483.10 of Title 42 of the Code of Federal
Regulations shall apply.
(2) If the elder or dependent adult is a patient of a health
facility as defined in subdivision (a), (b), or (f) of Section 1250
of the Health and Safety Code, then an order shall not be issued
under this section, and Sections 482.13 and 485.635 of Title 42 of
the Code of Federal Regulations, Section 1261 of the Health and
Safety Code, and subdivision (b) of Section 70707 of Title 22 of the
California Code of Regulations shall apply.
(d) A petition may not be filed pursuant to subdivision (a) if the
proposed visitee is a conservatee or subject to a conservatorship.
(e) The petition may be filed in the superior court of either of
the following counties:
(1) The county in which the proposed visitee resides.
(2) The county in which the proposed visitee is temporarily
living.
(f) The court may require the proposed visitee to appear at the
hearing.
(g) (1) If the proposed visitee has not retained an attorney or is
unable to retain legal counsel and requests the appointment of
counsel to assist in the particular matter, the court may, at or
before the time of the hearing, appoint counsel to represent the
proposed visitee at the hearing on the petition if the court
determines that the appointment would be helpful to the resolution of
the matter or is necessary to protect the interests of the proposed
visitee.
(2) If the proposed visitee is provided legal counsel pursuant to
subparagraph (1), all of the following shall apply:
(A) The nonprevailing party may be required to pay the fees and
costs of the proposed visitee's legal counsel.
(B) The court shall, upon conclusion of the matter, fix a
reasonable sum for compensation and expenses of counsel and shall
make a determination of the nonprevailing party's ability to pay all
or a portion of that sum. The sum may, in the discretion of the
court, include compensation for services rendered, and expenses
incurred, before the date of the order appointing counsel.
(C) If the court determines that the nonprevailing party has the
ability to pay all or a portion of the sum, the court shall order the
nonprevailing party to pay in any installments and in any manner the
court determines to be reasonable and compatible with the
nonprevailing party's financial ability.
(D) If the court determines that the nonprevailing party lacks the
ability to pay all or a portion of the sum determined under
subparagraph (B), the county shall pay the sum to the private counsel
to the extent the court determines the person is unable to pay.
(h) The court shall schedule an evidentiary hearing within 60 days
from the date that the petition is filed. The court may grant a
continuance of the hearing for good cause.
(i) The respondent and the proposed visitee shall each be
personally served with a copy of the petition for visitation order
and notice of the hearing at least 21 days before the hearing date.
(j) The notice of the hearing shall notify the proposed visitee
and the respondent that following the hearing the court may make
orders not to exceed five years from the hearing date. The notice of
the hearing shall also notify the proposed visitee whether the court
requires that the proposed visitee appear at the hearing, and how to
request that counsel be appointed if the proposed visitee is unable
to retain counsel.
(k) Respondent may file and serve a response that explains or
denies the alleged isolation at least 10 days before the hearing
date.
(l) The court shall issue an order only after notice and a hearing
under this section, and the court shall not issue an ex parte order
under this section.
(m) An order may be issued under this section to restrain the
respondent for the purpose of preventing a recurrence of isolation if
the petitioner has shown by a preponderance of the evidence, to the
satisfaction of the court, the following: (1) the respondent's past
act or acts of isolation of the proposed visitee prevented contact
with the petitioner, and (2) that the proposed visitee desires
contact with the petitioner. The order may specify the frequency,
time, place, location, and any other terms or conditions of
visitation.
(n) In deciding whether to issue or modify a visitation order
under this section, the court shall consider any prior protective
orders issued against the petitioner to protect the proposed visitee.
(o) In deciding whether to issue or modify a visitation order
under this section, the court may consider whether visitation by the
petitioner should be limited to situations in which a third person,
specified by the court, is present, or whether visitation shall be
suspended or denied. The petitioner, proposed visitee, or respondent
may submit to the court the name of a person who may be suitable to
be present during visitation.
(p) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
five years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or on
the motion of a party. These orders may be renewed, upon the request
of a party, either for five years or permanently, without a showing
of any further isolation since the issuance of the original order,
subject to termination or modification by further order of the court
either on written stipulation filed with the court or on the motion
of a party. The request for renewal may be brought at any time within
the three months before the expiration of the orders. The failure to
state the expiration date on the face of the form creates an order
with a duration of three years from the date of issuance.
(q) Nothing in this section shall preclude any party, including
the proposed visitee, from representation by private counsel or from
appearing on the party's own behalf.
(r) The court may, in its discretion, award the prevailing party
in any action brought under this section court costs and attorney's
fees, if any. In no event shall the proposed visitee be required to
pay the court costs or attorney's fees of either the prevailing or
nonprevailing party.
(s) The court shall not issue an order unless the proposed visitee
has expressed a desire for visitation. The court may appoint a court
investigator to determine whether the proposed visitee has expressed
a desire for visitation.
(t) A proposed visitee who appears in an action on a petition for
visitation order shall not be subject to any fees listed in Title 8
(commencing with Section 68070) of the Government Code.
(u) The Judicial Council shall, on or before January 1, 2016,
adopt implementing rules and forms, as necessary.
(v) This section shall become operative on January 1, 2016.
(w) This section shall remain in effect only until January 1,
2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2019, deletes or extends
that date.
SECTION 1. Section 15657.03 of the Welfare and
Institutions Code is amended to read:
15657.03. (a) (1) An elder or dependent adult who has suffered
abuse as defined in Section 15610.07 may seek protective orders as
provided in this section.
(2) (A) A petition may be brought on behalf of an abused elder or
dependent adult by a conservator or a trustee of the elder or
dependent adult, an attorney-in-fact of an elder or dependent adult
who acts within the authority of the power of attorney, a person
appointed as a guardian ad litem for the elder or dependent adult, or
other person legally authorized to seek such relief.
(B) If the petition alleges abuse of an elder or dependent adult
in the form of isolation, as defined in Section 15610.43, the term
"other person legally authorized to seek such relief" as used in
paragraph (2) includes a relative within the first degree of the
abused elder or dependent adult who seeks visitation with the
isolated elder or dependent adult.
(b) For the purposes of this section:
(1) "Conservator" means the legally appointed conservator of the
person or estate of the petitioner, or both.
(2) "Petitioner" means the elder or dependent adult to be
protected by the protective orders and, if the court grants the
petition, the protected person.
(3) "Protective order" means an order that includes any of the
following restraining orders, whether issued ex parte, after notice
and hearing, or in a judgment:
(A) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting,
either directly or indirectly, by mail or otherwise, or coming within
a specified distance of, or disturbing the peace of, the petitioner,
and, in the discretion of the court, on a showing of good cause, of
other named family or household members or a conservator, if any, of
the petitioner.
(B) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(C) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
subparagraph (A) or (B).
(4) "Respondent" means the person against whom the protective
orders are sought and, if the petition is granted, the restrained
person.
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if a declaration shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in paragraph (3) of subdivision (b). However, the court may
issue an ex parte order excluding a party from the petitioner's
residence or dwelling only on a showing of all of the following:
(1) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(2) That the party to be excluded has assaulted or threatens to
assault the petitioner, other named family or household member of the
petitioner, or a conservator of the petitioner.
(3) That physical or emotional harm would otherwise result to the
petitioner, other named family or household member of the petitioner,
or a conservator of the petitioner.
(e) A request for the issuance of a temporary restraining order
without notice under this section shall be granted or denied on the
same day that the petition is submitted to the court, unless the
petition is filed too late in the day to permit effective review, in
which case the order shall be granted or denied on the next day of
judicial business in sufficient time for the order to be filed that
day with the clerk of the court.
(f) Within 21 days, or, if good cause appears to the court, 25
days, from the date that a request for a temporary restraining order
is granted or denied, a hearing shall be held on the petition. If no
request for temporary orders is made, the hearing shall be held
within 21 days, or, if good cause appears to the court, 25 days, from
the date that the petition is filed.
(g) The respondent may file a response that explains or denies the
alleged abuse.
(h) (1) Upon the filing of a petition by a relative of the first
degree pursuant to paragraph (2) of subdivision (a), the court shall
determine whether the elder or dependent adult on whose behalf the
petition was filed has retained or intends to retain an attorney. If
the elder or dependent adult has not retained an attorney and does
not plan to retain one, the court may appoint an attorney to
represent the elder or dependent adult.
(2) If the court appoints an attorney to represent the elder or
dependent adult, the court may order the respondent, if the petition
is granted, or the relative of the first degree, if the petition is
denied, to pay the reasonable fees and costs of the elder or
dependent adult's attorney.
(3) If the court appoints an attorney to represent the elder or
dependent adult, the court shall, upon conclusion of the matter, fix
a reasonable sum for the reasonable costs and fees of the elder or
dependent adult's attorney and shall make a determination of the
paying person's ability to pay all or a portion of that sum. The sum
may, in the discretion of the court, include compensation for
services rendered, and expenses incurred, before the date of the
order appointing counsel.
(4) If the court determines that the person ordered to pay the
reasonable fees and costs of the elder or dependent adult's attorney
has the ability to pay all or a portion of the sum, the court shall
order that person to pay in any installments and in any manner the
court determines to be reasonable and compatible with the person's
financial ability.
(5) If the court determines that the person who is ordered to pay
the reasonable fees and costs of the elder or dependent adult's
attorney in the amount determined pursuant to paragraph (3) is unable
to pay, the county shall pay the sum to the counsel to the extent
the court determines the person is unable to pay.
(6) If the elder or dependent adult fails to participate in the
proceeding in any meaningful way, the court shall appoint a guardian
ad litem for the elder or dependent adult to determine the ability of
the elder or dependent adult to participate.
(i) The court may issue, upon notice and a hearing, any of the
orders set forth in paragraph (3) of subdivision (b). The court may
issue, after notice and hearing, an order excluding a person from a
residence or dwelling if the court finds that physical or emotional
harm would otherwise result to the petitioner, other named family or
household member of the petitioner, or conservator of the petitioner.
(j) (1) In the discretion of the court, an order issued after
notice and a hearing under this section may have a duration of not
more than five years, subject to termination or modification by
further order of the court either on written stipulation filed with
the court or on the motion of a party. These orders may be renewed
upon the request of a party, either for five years or permanently,
without a showing of any further abuse since the issuance of the
original order, subject to termination or modification by further
order of the court either on written stipulation filed with the court
or on the motion of a party. The request for renewal may be brought
at any time within the three months before the expiration of the
order.
(2) The failure to state the expiration date on the face of the
form creates an order with a duration of three years from the date of
issuance.
(3) If an action is filed for the purpose of terminating or
modifying a protective order prior to the expiration date specified
in the order by a party other than the protected party, the party who
is protected by the order shall be given notice, pursuant to
subdivision (b) of Section 1005 of the Code of Civil Procedure, of
the proceeding by personal service or, if the protected party has
satisfied the requirements of Chapter 3.1 (commencing with Section
6205) of Division 7 of Title 1 of the Government Code, by service on
the Secretary of State. If the party who is protected by the order
cannot be notified prior to the hearing for modification or
termination of the protective order, the court shall deny the motion
to modify or terminate the order without prejudice or continue the
hearing until the party who is protected can be properly noticed and
may, upon a showing of good cause, specify another method for service
of process that is reasonably designed to afford actual notice to
the protected party. The protected party may waive his or her right
to notice if he or she is physically present in court and does not
challenge the sufficiency of the notice.
(k) In a proceeding under this section, a support person may
accompany a party in court and, if the party is not represented by an
attorney, may sit with the party at the table that is generally
reserved for the party and the party's attorney. The support person
is present to provide moral and emotional support for a person who
alleges he or she is a victim of abuse. The support person is not
present as a legal adviser and may not provide legal advice. The
support person may assist the person who alleges he or she is a
victim of abuse in feeling more confident that he or she will not be
injured or threatened by the other party during the proceedings if
the person who alleges he or she is a victim of abuse and the other
party are required to be present in close proximity. This subdivision
does not preclude the court from exercising its discretion to remove
the support person from the courtroom if the court believes the
support person is prompting, swaying, or influencing the party
assisted by the support person.
(l) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any declarations in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent. If a petition
is filed by a relative of the first degree, the isolated elder or
dependent adult shall be notified of the hearing and any declarations
in support of the petition.
(m) A notice of hearing under this section shall notify the
respondent that if he or she does not attend the hearing, the court
may make orders against him or her that could last up to five years.
If a petition is filed by a relative of the first degree, the
isolated elder or dependent adult shall be notified that if he or she
does not attend the hearing, the court may issue a protective order
that facilitates visitation with him or her that could last up to
five years.
(n) (1) The court may, upon the filing of a declaration by the
petitioner that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall remain in effect until the date set for the hearing.
(2) The reissued order shall state on its face the date of
expiration of the order.
(o) (1) If a respondent, named in an order issued under this
section after a hearing, has not been served personally with the
order but has received actual notice of the existence and substance
of the order through personal appearance in court to hear the terms
of the order from the court, no additional proof of service is
required for enforcement of the order.
(2) If the respondent named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based on the temporary
restraining order, but the respondent does not appear at the hearing,
either personally or by an attorney, and the terms and conditions of
the restraining order or protective order issued at the hearing are
identical to the temporary restraining order, except for the duration
of the order, then the restraining order or protective order issued
at the hearing may be served on the respondent by first-class mail
sent to the respondent at the most current address for the respondent
that is available to the court.
(3) The Judicial Council form for temporary orders issued pursuant
to this subdivision shall contain a statement in substantially the
following form:
"If you have been personally served with a temporary restraining
order and notice of hearing, but you do not appear at the hearing
either in person or by a lawyer, and a restraining order that is the
same as this temporary restraining order except for the expiration
date is issued at the hearing, a copy of the order will be served on
you by mail at the
following address: ____.
If that address is not correct or you wish to verify that the
temporary restraining order was converted to a restraining order at
the hearing without substantive change and to find out the duration
of that order, contact the clerk of the court."
(p) (1) Information on any protective order relating to elder or
dependent adult abuse issued by a court pursuant to this section
shall be transmitted to the Department of Justice in accordance with
either paragraph (2) or (3).
(2) The court shall order the petitioner or the attorney for the
petitioner to deliver a copy of an order issued under this section,
or a reissuance, extension, modification, or termination of the
order, and any subsequent proof of service, by the close of the
business day on which the order, reissuance, extension, modification,
or termination was made, to each law enforcement agency having
jurisdiction over the residence of the petitioner, and to any
additional law enforcement agencies within the court's discretion as
are requested by the petitioner.
(3) Alternatively, the court or its designee shall transmit,
within one business day, to law enforcement personnel all information
required under subdivision (b) of Section 6380 of the Family Code
regarding any order issued under this section, or a reissuance,
extension, modification, or termination of the order, and any
subsequent proof of service, by either one of the following methods:
(A) Transmitting a physical copy of the order or proof of service
to a local law enforcement agency authorized by the Department of
Justice to enter orders into the California Law Enforcement
Telecommunications System (CLETS).
(B) With the approval of the Department of Justice, entering the
order or proof of service into CLETS directly.
(4) Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(5) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(6) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(7) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(q) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(r) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(s) Pursuant to paragraph (4) of subdivision (b) of Section 6103.2
of the Government Code, a petitioner shall not be required to pay a
fee for law enforcement to serve an order issued under this section.
(t) Except as provided in subdivision (h), the prevailing party in
any action brought under this section may be awarded court costs and
attorney's fees, if any.
(u) (1) A person subject to a protective order under this section
shall not own, possess, purchase, receive, or attempt to receive a
firearm or ammunition while the protective order is in effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm or ammunition while subject
to a protective order issued under this section is punishable
pursuant to Section 29825 of the Penal Code.
(4) This subdivision shall not apply in a case in which the
protective order issued under this section was made solely on the
basis of financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(v) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(w) This section does not apply to any action or proceeding
governed by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(x) When a petition is filed by a relative of the first degree
pursuant to paragraph (2) of subdivision (a), both of the following
shall apply:
(1) The court shall not issue a protective order without the
knowledge and agreement of the elder or dependent person on whose
behalf the petition is filed.
(2) If the isolated elder or dependent adult is so incapacitated
that he or she cannot express an opinion concerning visitation with
the petitioner, a petition for temporary conservatorship or
guardianship may be initiated in accordance with Section 2250 of the
Probate Code.
(y) The Judicial Council shall develop forms, instructions, and
rules relating to matters governed by this section. The petition and
response forms shall be simple and concise, and their use by parties
in actions brought pursuant to this section shall be mandatory.
SEC. 2. SEC. 3. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution for certain costs that may be incurred by a
local agency or school district because, in that regard, this act
creates a new crime or infraction, eliminates a crime or infraction,
or changes the penalty for a crime or infraction, within the meaning
of Section 17556 of the Government Code, or changes the definition of
a crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
However, if the Commission on State Mandates determines that this
act contains other 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.
