Bill Text: CA AB2034 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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Status: (Engrossed - Dead) 2014-08-27 - Withdrawn from committee.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

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BILL NUMBER: AB 2034	AMENDED
	BILL TEXT

	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   add
Section 2361 to the Probate Code, and to add Section 15657.035 to
 the Welfare and Institutions Code, relating to 
protective orders   elder and dependent adults  .


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2034, as amended, Gatto.  Family relations: family
visitation: protective orders.   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 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 additionally allow a petition to be brought
 by an adult child of an abused   for a
protective order by a relative of an  elder or dependent adult
to enjoin a  party from interfering with visitation between
the adult child and the abused elder or dependent adult when an elder
or dependent adult has suffered abuse in the form of isolation, as
defined, and   person from keeping the elder or
dependent adult in isolation from contact with the relative. The bill
 would allow a court to make an order  enjoining a
party from isolating or otherwise interfering with the visitation of
the abused elder or dependent adult  to restrain any
person for the purpose of preventing a recurrence of abuse upon proof
of a past act or acts of isolation and upon a showing that the elder
or dependent adult desires contact with the relative  .
   The bill would require the court to appoint counsel for the
 abused  elder or dependent adult and would 
require the appointed counsel to be paid for by the adult child who
brings the petition   allow the court to award court
costs and attorney's fees to the prevailing party. The bill would
require information on any protective order issued pursuant to these
provisions to be transmitted to the Department of Justice, as
provided  . The bill would require  the appointed
counsel to submit a report to the court regarding whether the abused
elder or adult desires the proposed visitation, among other things.
The bill would require this report to be confidential, except as
provided, and would make legislative findings and declarations
regarding the privacy interests affected by the reports that are
protected by the bill.   the county adult protective
services or local law enforcement agency in the county where the
proposed visitee resides to investigate a complaint of isolation and
to prepare a report to be provided to the court stating, among other
things, whether the proposed visitee desires contact from the
relative. The bill would require, on request of the relative, any law
enforcement officer who is present at the scene of reported abuse to
serve a protective order issued pursuant to these provisions on the
restrained person. By increasing the duties of county adult
protective services and local law enforcement agencies, this bill
would impose a state-mandated local program. 
   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. 
   This bill would make a legislative finding that declares every
adult in this state has the right to visit with, and receive mail and
telephone or electronic communication from, whomever he or she so
chooses, unless a court has specifically ordered otherwise. 

   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 no reimbursement is required by this
act for a specified reason.  
   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   , 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.    Section 15657.035 i   s added to
the   Welfare and Institutions Code   , to read:
 
   15657.035.  (a) A petition may be brought for a protective order
to enjoin a respondent from keeping a proposed visitee in isolation
from contact with the petitioner.
   (b) For the purposes of this section:
   (1) "Isolation" has the same meaning as defined in Section
15610.43.
   (2) "Petitioner" means a person who is a relative in the first
degree of the proposed visitee.
   (3) "Proposed visitee" means the elder or dependent adult, who is
under the care or custody of the respondent, to be protected by the
protective order and, if the court grants the petition, the protected
person.
   (4) "Protective order" means an order enjoining a party from
keeping the proposed visitee in isolation from contact with the
petitioner that is issued after notice and hearing, or in a judgment,
and may include terms of visitation.
   (5) "Respondent" means the person against whom the protective
order is sought and, if the petition is granted, the restrained
person.
   (c) (1) An order may be issued under this section 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 isolation of the proposed visitee from
contact with the petitioner, and upon a showing that the proposed
visitee desires contact with the petitioner or that visitation is in
the best interests of the proposed visitee.
   (2) Proof of the proposed visitee's desire for contact with the
petitioner may be shown by a report issued by the county adult
protective services agency or law enforcement, pursuant to
subdivision (e), in the county where the proposed visitee resides.
   (3) If the proposed visitee resides in a long-term care facility,
as defined in Section 9701 of this 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.
   (4) The order may specify the frequency, time, place, and location
of visitation.
   (5) In deciding whether visitation with the petitioner is in the
best interest of the proposed visitee, the court may consider whether
the best interest of the proposed visitee requires that any
visitation by the petitioner 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.
   (6) In deciding whether visitation with the petitioner is in the
best interest of the proposed visitee, the court shall consider any
prior protective orders issued against the petitioner to protect the
proposed visitee.
   (d) The court may require the proposed visitee, or the proposed
visitee's attorney, to appear at the hearing. If the proposed visitee
does not have an attorney, the court shall appoint an attorney to
represent the proposed visitee's interests.
   (e) Upon receipt of a complaint of isolation from a petitioner or
upon court order, and within 20 days of receipt of the complaint or
court order, the county adult protective services or local law
enforcement agency, pursuant to subdivision (b) of Section 15650, in
the county where the proposed visitee resides, shall investigate the
complaint. The county adult protective services or local law
enforcement agency shall prepare a report, to be provided to the
petitioner and court that states, along with any findings pursuant to
paragraphs (1) through (3), inclusive, of subdivision (d) of Section
15763, whether the proposed visitee is under the care or control of
the respondent or otherwise unable to provide for his or her own
physical care, and whether the proposed visitee desires contact from
the petitioner.
   (f) Within 21 days, or, if good cause appears to the court, 25
days from the date that the petition is filed, a hearing shall be
held on the petition.
   (g) The respondent may file a response that explains or denies the
alleged abuse.
   (h) 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.
   (i) 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 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.
   (j) Upon the filing of a petition for a protective order under
this section, the respondent shall be personally served with a copy
of the petition, notice of the hearing, any declarations in support
of the petition, and any report submitted to the petitioner pursuant
to subdivision (e). Service shall be made at least five days before
the hearing.
   (k) 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.
   (l) The Judicial Council form for protective orders issued
pursuant to this section shall contain a statement in substantially
the following form:

   "If you have been personally served with a notice of hearing, but
you do not appear at the hearing either in person or by a lawyer, a
copy of the restraining order will be served on you by mail at the
following address: ____.
   If that address is not correct or you wish to verify the issuance
of a restraining order at the hearing and to find out the duration of
that order, contact the clerk of the court."

   (m) (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 petitioner 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.
   (n) 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.
   (o) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any. The
nonprevailing party may also be required to pay the fees of the
proposed visitee's attorney, whether or not court-appointed, and
court costs. 
  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.  All matter omitted in this
version of the bill appears in the bill as amended in the Senate,
June 11, 2014. (JR11)