SENIOR ASSEMBLY PROPOSAL NO. 1

INTRODUCED BY SENIOR ASSEMBLY MEMBER EDGAR

LEGISLATIVE COUNSEL'S DIGEST

AP 1:  EMERGENCY FINANCIAL PROTECTION:  MENTALLY IMPAIRED ELDERS.

UNDER EXISTING LAW, THE PUBLIC GUARDIAN IS AUTHORIZED TO PROTECT THE ASSETS OF MENTALLY IMPAIRED ELDER ADULTS BY TAKING POSSESSION OF ANY AND ALL PROPERTY BELONGING TO THE ELDER ADULT IN ORDER TO PREVENT FINANCIAL ABUSE PERPETRATED AGAINST THOSE ADULTS.

THIS MEASURE WOULD MEMORIALIZE THE LEGISLATURE AND THE GOVERNOR TO ENACT LEGISLATION THAT WOULD ENHANCE PROVISIONS ADDRESSING THE FINANCIAL ABUSE OF MENTALLY IMPAIRED ELDERS.

VOTE: MAJORITY.

AP 1: RELATING TO EMERGENCY FINANCIAL PROTECTION: MENTALLY IMPAIRED ELDERS

WHEREAS, CHAPTER 4 OF PART 5 OF DIVISION 4 OF THE PROBATE CODE (HEREAFTER CHAPTER 4), ENTITLED "FINANCIAL ABUSE OF MENTALLY IMPAIRED ELDERS," WAS ENACTED TO REDUCE THE INCIDENCE OF FINANCIAL ABUSE PERPETRATED AGAINST MENTALLY IMPAIRED ELDER ADULTS. CHAPTER 4 GENERALLY PROVIDES THAT THE PUBLIC GUARDIAN MAY TAKE POSSESSION OF ANY AND ALL PROPERTY BELONGING TO THE MENTALLY IMPAIRED ELDER IF A PEACE OFFICER ISSUES A DECLARATION THAT THERE IS PROBABLE CAUSE TO BELIEVE THE ELDER IS SUBSTANTIALLY UNABLE TO MANAGE HIS OR HER FINANCIAL RESOURCES OR TO RESIST FRAUD OR UNDUE INFLUENCE; AND

WHEREAS, CHAPTER 4 DOES NOT ADDRESS CERTAIN PRACTICAL LIMITATIONS, AND CONSEQUENTLY HAS NOT BEEN ENFORCED FOR THE LAST THREE YEARS.  FOR EXAMPLE, SECTION 2951 OF THE PROBATE CODE DEFINES "DECLARATION" AS A DOCUMENT THAT IS SIGNED BY BOTH A PEACE OFFICER AND A SUPERVISOR FROM THE COUNTY'S ADULT PROTECTIVE SERVICES AGENCY AND PROVIDED TO THE PUBLIC GUARDIAN.  SECTION 2952 OF THE PROBATE CODE REQUIRES THE SIGNED DECLARATION TO BE TRANSMITTED TO THE PUBLIC GUARDIAN WITHIN 24 HOURS OF THE SIGNING OF THE DECLARATION.  HOWEVER, A SUPERVISOR FROM ADULT PROTECTIVE SERVICES IS UNABLE, BY MANDATE, TO EXECUTE THE DECLARATION UNTIL A FULL INVESTIGATION HAS BEEN CONDUCTED, WHICH REQUIRES A GREAT AMOUNT OF TIME.  THUS, THE PERPETRATOR WHO IS PROCEEDING TO DEPLETE THE ELDER'S ASSETS HAS MORE THAN SUFFICIENT TIME TO ACCOMPLISH HIS OR HER PURPOSE; AND

WHEREAS, CHAPTER 4 ALSO DOES NOT PROVIDE FOR TRANSMISSION OF THE DECLARATION TO ANY FINANCIAL INSTITUTION, AND THE ASSETS OF THE ELDER CAN BE TRANSFERRED OR DEPLETED BY A PERPETRATOR WITHIN A SHORT PERIOD OF TIME; AND

WHEREAS, CHAPTER 4 CONTAINS VAGUE, AMBIGUOUS, AND CONFUSING TERMS.  FOR INSTANCE, SECTION 2952 OF THE PROBATE CODE BROADLY ALLOWS THE PUBLIC GUARDIAN TO DENY USE OF, ACCESS TO, OR PROHIBIT RESIDENCY IN THE HOME OF THE ELDER, BY ANYONE WHO DOES NOT HAVE A WRITTEN RENTAL AGREEMENT OR OTHER LEGAL RIGHT TO THE USE OF, OR ACCESS TO, THE RESIDENCE.  THE PUBLIC GUARDIAN IS ALSO BROADLY AUTHORIZED TO TERMINATE THE OCCUPANCY OF ANYONE LIVING IN THE HOME OF THE ELDER, AND REMOVE THAT OCCUPANT; AND

WHEREAS, SECTION 2952 OF THE PROBATE CODE ALSO  CONTAINS PRACTICAL LIMITATIONS. IT PROVIDES THAT THE CERTIFICATE OF AUTHORITY ISSUED TO THE PUBLIC GUARDIAN IS VALID FOR 15 DAYS AFTER THE DATE OF ISSUANCE, AND IS RENEWABLE BY EX PARTE PETITION FOR ANOTHER 15 DAYS.  HOWEVER, THE PUBLIC GUARDIAN HAS BEEN AFFECTED ADVERSELY  BY BUDGET CUTS AND IS, THEREFORE, UNABLE TO MAKE AN APPROPRIATE ASSESSMENT WITHIN A 15-DAY PERIOD; AND

WHEREAS, SECTION 2954 OF THE PROBATE CODE PROVIDES FOR A MENTAL STATUS EXAM, SET FORTH IN SECTIONS 810 TO 813, INCLUSIVE, OF THE PROBATE CODE TO BE ADMINISTERED TO THE ELDER BY A PEACE OFFICER.  THE MENTAL STATUS EXAM REQUIRES A LEVEL OF TRAINING AND EXPERTISE THAT IS OVERLY COMPLEX AND UNNECESSARY FOR A PEACE OFFICER RESPONDING TO AN EMERGENCY SITUATION.  OTHER TESTING METHODS THAT REQUIRE LESS TRAINING BY THE PEACE OFFICER ARE AVAILABLE TO PROVIDE RESULTS SUFFICIENT FOR THE PEACE OFFICER TO ISSUE AN EMERGENCY DECLARATION; AND

WHEREAS, CHAPTER 4 SHOULD BE AMENDED IN ORDER TO ADDRESS PRACTICAL ISSUES AND VAGUE AND CONFUSING TERMINOLOGY; NOW, THEREFORE, BE IT

RESOLVED, BY THE SENIOR ASSEMBLY AND THE SENIOR SENATE, JOINTLY, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA AT ITS 2004 REGULAR SESSION, A MAJORITY OF THE MEMBERS VOTING THEREFOR, HEREBY PROPOSES THAT THE FINANCIAL ABUSE OF MENTALLY IMPAIRED ELDERS STATUTES BE AMENDED TO: (1) REDEFINE "DECLARATION" AS A DOCUMENT SIGNED BY BOTH A PEACE OFFICER AND A JUDICIAL OFFICER; (2) PROVIDE THAT, UPON TRANSMISSION OF THE DECLARATION TO THE PUBLIC GUARDIAN, THE PEACE OFFICER ALSO TRANSMIT A SUMMARY OF THE ELDER'S FINANCIAL INFORMATION, INCLUDING NAMES OF INSTITUTIONS AND ACCOUNT NUMBERS, AND THE DECLARATION, TO THE ELDER'S FINANCIAL INSTITUTIONS; (3) PROVIDE THAT UPON RECEIPT OF THE DECLARATION, THE FINANCIAL INSTITUTION SHALL FREEZE THE ACCOUNTS AND ASSETS LISTED IN THE DECLARATION FOR A PERIOD OF 72 HOURS; (4) PROVIDE THAT THE PUBLIC GUARDIAN MAY DENY THE USE OF, ACCESS TO, OR PROHIBIT THE RESIDENCY IN THE HOME OF AN ELDER BY ANYONE WHO DOES NOT HAVE AN OWNERSHIP INTEREST IN THE PROPERTY, A WRITTEN RENTAL AGREEMENT, OR A PERIODIC TENANCY INTEREST IN THE RESIDENCE; (5) PROVIDE THAT A CERTIFICATE ISSUED BY THE PUBLIC GUARDIAN IS VALID FOR 30 DAYS AND MAY BE RENEWED FOR ANOTHER 30 DAYS; AND (6) PROVIDE THAT THE MENTAL STATUS EXAM SET FORTH IN THE DECLARATION BE REPLACED WITH THE MACNIELL-LICHTENBERG DECISION TREE FOR OLDER ADULTS AND THE CLOCK DRAWING TASK; AND BE IT FURTHER

RESOLVED, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA RESPECTFULLY MEMORIALIZES THE LEGISLATURE AND THE GOVERNOR OF THE STATE OF CALIFORNIA TO ENACT APPROPRIATE LEGISLATION THAT WOULD ADDRESS THE CONCERNS SET FORTH IN THIS MEASURE; AND BE IT FURTHER RESOLVED, 

THAT A COPY OF THIS MEASURE BE TRANSMITTED TO THE SPEAKER OF THE ASSEMBLY, THE PRESIDENT PRO TEMPORE OF THE SENATE, AND THE GOVERNOR OF THE STATE OF CALIFORNIA.