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CHAPTER_____ of Statutes of 2003
The People of the State of California do enact as follows:
This act shall be known and may be cited as the "Survey Act to Develop Informed Legislative Approaches To Enhance Access to Justice for Elders and Dependent Adults."
The Legislature finds and declares all of the following:
(a) There is a controversy about whether the protections which the law purports to provide to elders and dependent adults are ephemeral to a significant extent, because professional conservators, trustees and lawyers are unwilling to take meritorious cases and because, responding to financial pressures, they tend to enter into settlements which are not in the best interests of the elder or dependent adult.
(b) There is a controversy about whether professional conservators, trustees and lawyers do those things because of their perception that the courts:
interests of victimized elders and dependent adults, the less the champions will be paid per hour.
(1) Lack the resources to read the file enough to properly supervise elder abuse litigation, and the courts therefore are therefore reluctant and unable to adequately address discovery disputes which are the heart of elder abuse litigation, and
(2) Encourage settlements and discourage litigation to an extent that sometimes is not in the best interests of victimized elders and dependent adults, and
(3) Provide inadequate compensation to professional conservators, trustees and lawyers, in cases of substantial litigation involving modest and small estates, creating the perception that the more hours the champions devote to protecting the
(c) There is a controversy about whether professional conservators, trustees and lawyers refrain from speaking out to protest dysfunctional practices and injustice in the judicial system, and to propose changes, for fear of offending judges and retribution.
(d) There is a controversy about whether courts may do those things because:
(1) Judges have inadequate support staff,
(2) There are too few probate judicial officers to handle the litigation caseload, and
(3) The allure of matters involving substantial estates or amounts in controversy, may be adversely affecting the willingness of bench officers to devote enough time to cases involving smaller estates or amounts in controversy, even where criminal-level malice and proof are readily demonstrable, and
(4) Judge perceive themselves as being on a battlefield doing triage, handling the biggest emergencies (largest sums in controversy) first, and forcing the smaller emergency cases (smaller estates, psychological abuse and seemingly mild neglect cases) to settle by:  warning the parties that the fees are becoming excessive,  failing to adequately address discovery disputes and violations of restraining orders, and  failing to have evidentiary hearings when appropriate.
(e) The legal system, with respect to elder abuse matters:
(1) Needs to continue to develop a means to address these problems without, on the one hand, encouraging excessive litigation, or on the other hand, creating pressures that lead to settlement where settlement is inappropriate or inequitable;
(2) Needs a means to encourage trustees, professional conservators and lawyers, to handle cases of substantial litigation involving modest and small estates, and
(3) Needs to provide training to judicial officers in the recognition and identification of mental function deficits, in understanding the impact those deficits may have on the ability to perform instrumental activities of daily living and the susceptibility to undue influence, and in how to evaluate and make optimal use of forensic mental health assessments.
(f) It is the intent of the Legislature to determine the extent to which these problems exist, and whether any legislative reforms are indicated to address these problems.
The Legislature therefore hereby appoints the Judicial Council to:
(a) Conduct a survey, in collaboration with a qualified institute and a qualified outside university research fellow-methodologist, to determine whether interested persons believe that the foregoing problems exist, and to determine what such interested persons believe would be an appropriate response to those problems. The survey shall be directed to the following categories of individuals, and such other categories as the surveyors may deem appropriate: judges, probate commissioners, probate attorneys, legal services lawyers, probate examiners, probate court investigators, professional trustees including banks, professional conservators, attorneys, adult protective services workers, long term care ombudsmen, hospital discharge planners, law-enforcement officers, prosecutors and public defenders and their respective staffs, geriatric case managers, social workers at senior centers, and physicians, nurses and psychologists who serve the elderly.
(b) Recommend to the California Center for Judicial Education and Research to add as part of its California Continuing Judicial Studies Program, a comprehensive program for judicial officers to enhance their ability to identify, evaluate and resolve issues concerning elder capacity and abuse.
State funds shall not be appropriated for the purposes of this Bill. Neither the Judicial Council nor any other agency is required to undertake any new task described in this Bill (because of the enactment of this Bill) unless the designated agency receives federal or private funds for the purposes of this Bill. The appointment of the Judicial Council to perform the survey described in this Act shall be effective only if and when sufficient funding contributions to fund the survey are received by the Judicial Council, within three years after this bill is Chaptered. It is the intent of the Legislature that the Judicial Council and the California Center for Judicial Education Research shall jointly use the funds for necessary and reasonable expenses and costs incurred to conduct the survey and to develop a California Continuing Judicial Studies Program.
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