Currrent as of February 4, 2022
Senate Bill No. 1254
Introduced by Senator Moorlach
An act to add Part 7.5 (commencing with Section 3250) to Division 4 of the Probate Code, and to add Section 5014 to the Welfare and Institutions Code, relating to guardians ad litem.
LEGISLATIVE COUNSEL’S DIGEST
SB 1254, as amended, Moorlach. Guardians ad litem: mental illnesses.
Existing law authorizes a court, on its own motion or on request of certain specified persons, to appoint a guardian ad litem in any probate proceeding, as specified, to represent the interests of certain persons, including a minor or an incapacitated person. Existing law prohibits the appointment of a public guardian as a guardian ad litem in a probate proceeding, unless the court finds that no other qualified person is willing to act as a guardian ad litem.
Existing law, the Lanterman-Petris-Short Act, provides for the involuntary commitment and treatment of a person who is a danger to themselves or others or who is gravely disabled. Existing law also provides for a conservator of the person or estate to be appointed for a person who is gravely disabled. Existing law, for the purposes of involuntary commitment and conservatorship, defines “gravely disabled,” among other things, as a condition in which a person, as a result of a mental health disorder, is unable to provide for the person’s basic personal needs for food, clothing, or shelter.
This bill would establish an additional procedure for the appointment of a guardian ad litem for a person who lacks the capacity to make rational informed decisions regarding medical care, mental health care, safety, hygiene, shelter, food, or clothing with a rational thought process due to a mental illness, defect, or deficiency. The bill would authorize certain persons to petition the court for the appointment of a guardian ad litem under these provisions, and would establish the procedures that would govern the filing of a petition, its notice provisions, and court procedures. Under certain circumstances, the bill would require the court to appoint the public defender or private counsel to represent a person who is the subject of a petition.
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: no
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
Part 7.5 (commencing with Section 3250) is added to Division 4 of the Probate Code, to read:
PART 7.5. Capacity Determinations and Appointments of Guardians Ad Litem for Mentally Ill Adults Without a Conservator
(a) A petition may be filed under this part to determine that a person lacks the capacity to make rational informed decisions regarding medical care, mental health care, safety, hygiene, shelter, food, or clothing with a rational thought process due to a mental illness, defect, or deficiency, and for an order authorizing a designated person to act as a guardian ad litem to make medical care, mental health care, safety, hygiene, shelter, food, or clothing decisions on behalf of the person lacking capacity.
(b) This part may apply to any person who meets the criteria set forth in subdivision (a), including, but not limited to, under the circumstances set forth in Section 5014 of the Welfare and Institutions Code.
(a) The petition under this part may be filed in the superior court of any of the following counties:
(1) The county in which the person resides.
(2) The county in which the person is temporarily living.
(3) Any other county as may be in the best interests of the person.
(b) The petition shall be expedited and heard and adjudicated within 15 days of the filing and may be heard concurrently with or in the same manner as expedited hearings conducted pursuant to Article 4 (commencing with Section 5250) of Chapter 2 of Part 1 of Division 5 of the Welfare and Institutions Code, including, but not limited to, certification hearings, or writ hearings under Article 5 (commencing with Section 5275) of Chapter 2 of Part 1 of Division 5 of the Welfare and Institutions Code, capacity hearings under Sections 5332 to 5334, inclusive, of the Welfare and Institutions Code, or other expedited mental health hearings.
A petition may be filed under this part by any of the following:
(a) The person for whom the petition is being filed.
(b) The person’s spouse.
(c) A relative or friend of the person, or other interested person, including the person’s agent under a power of attorney for health care.
(d) The person’s physician.
(e) A person acting on behalf of the health care institution in which the person is located if the person is in a health care institution.
(f) The public guardian or other county officer designated by the board of supervisors of the county in which the person is located or resides or is temporarily living.
The petition shall set forth, by a declaration attached to the petition by a mental health professional, all of the following known to the petitioner at the time the petition is filed:
(a) The condition of the person’s mental health that shows that the person who is the subject of the petition lacks the capacity to make rational decisions regarding any one or more of the following with a rational thought process: medical care, mental health care, safety, hygiene, shelter, food, or clothing.
(b) The recommended care that is considered to be appropriate.
(c) The threat to the person’s condition if authorization for the recommended care is delayed or denied by the court.
(d) The predictable or probable outcome of the recommended care.
(e) The alternatives, if any, to the recommended care.
(f) The efforts made to obtain consent from the person.
(g) The name of the proposed guardian ad litem designated to give consent to the recommended care.
(h) The deficit or deficits in the person’s mental functions that causes the person to be incapable of knowingly and intelligently making decisions about medical care, mental health care, safety, hygiene, shelter, food, or clothing, or to participate in a decision about recommended care by means of a rational thought process.
Upon the filing of the petition, the court shall, within four judicial days, determine the name of the attorney the person has retained to represent the person in the proceeding under this part or the name of the attorney the person plans to retain for that purpose. If the person has not retained an attorney and does not plan to retain one, the court shall appoint the public defender or private counsel under Section 1471 to consult with and represent the person at the hearing on the petition and, if that appointment is made, Section 1472 shall apply.
(a) Not less than 10 days before the hearing, notice of the time and place of the hearing and a copy of the petition shall be personally served on the respondent, the respondent’s attorney, and the agent under the respondent’s power of attorney for health care, if any.
(b) Not less than 10 days before the hearing, notice of the time and place of the hearing and a copy of the petition shall be delivered pursuant to Section 1215 to the following persons:
(1) The respondent’s spouse, if any, at the address stated in the petition.
(2) The proposed guardian ad litem named in the petition at their address or addresses stated in the petition if that person is different than the petitioner.
(c) For good cause, the court may shorten or waive notice of the hearing as provided by this section. In determining the period of notice to be required, the court shall take into account the existing personal needs and circumstances of the respondent set forth in the petition or in the declarations attached to the petition or in oral declarations presented to the court.
The matter presented by the petition may be submitted for the determination of the court upon proper and sufficient declarations supporting the petition if the petitioner or attorney for the petitioner and the attorney for the respondent so stipulate and further stipulate that there remains no issue of fact to be determined.
(a) After a hearing or submission of the petition to the court, the court may authorize the appointment of a guardian ad litem and grant the requested or limited powers of the guardian ad litem to act on behalf of the respondent.
(b) The appointment and authority of the guardian ad litem shall not supersede the appointment of a conservator of the person or the estate pursuant to this code or the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code). If a conservatorship is established, the guardian ad litem powers will be suspended until the conservatorship is terminated.
The court in which the petition is filed has continuing jurisdiction to revoke or modify an order made under this part upon a petition filed, noticed, and heard in the same manner as an original petition filed under this part.
(a) A person may not be placed in a secure mental health treatment facility under this part. This does not limit the guardian ad litem from making a referral under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) for evaluation and treatment or seeking mental health treatment for a person through the act, which would then take priority over the authority of the guardian ad litem.
(b) Experimental drugs, as defined in Section 111515 of the Health and Safety Code, may not be prescribed for, or administered to, any person under this part.
(c) Convulsive treatment, as defined in Section 5325 of the Welfare and Institutions Code, may not be performed on any person under this part.
(d) A person may not be sterilized under this part.
(e) The provisions of this part are subject to a valid advance health care directive under the Health Care Decisions Law (Division 4.7 (commencing with Section 4600)).
Section 5014 is added to the Welfare and Institutions Code, to read:
Notwithstanding any other law, a person who is released from an evaluation and treatment hold or a conservatorship under this part, including, but not limited to, pursuant to Section 5150, 5250, or 5350, may have a guardian ad litem appointed for them pursuant to the procedures set forth in Part 7.5 (commencing with Section 3250) of Division 4 of the Probate Code, if the requisite criteria are met.