Transcript CONSERVATORSHIP - Disability Rights California

CONSERVATORSHIPS
AND ALTERNATIVES
What is a Conservatorship?
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An individual or agency is appointed by the court
to be responsible for a person.
The court-ordered conservatorship takes
fundamental rights away from an individual.
Conservatorships apply to people over the age
of 18.
The conservatorship will last until terminated by
a court or statutory occurrence.
Who can be a Conservator?
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The Conservator must be an adult.
A conservatorship may have joint conservators.
Private professional conservators must file
background statement annually.
There is an order of preference for a General
Conservatorship:
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Nominee of the proposed conservatee
Spouse of the proposed conservatee
Adult child of the proposed conservatee
Parents of the proposed conservatee
Sibling of the proposed conservatee
Type of Conservatorships
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Probate Code
General, Of the Estate:
http://www.pai-ca.org/pubs/523001.pdf
 Limited (Specific to persons w/developmental
disabilities) :
http://www.pai-ca.org/pubs/500501.pdf
 Dementia (Probate Code 2356.5):
http://www.pai-ca.org/pubs/522601.pdf
Lanterman-Petris-Short (LPS) (WIC 5350):
http://www.pai-ca.org/pubs/508201.htm
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Powers available in a Limited
Conservatorship
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To
To
To
To
To
To
To
determine residence
have access to confidential records
control the right to marry
control the right to contract
give consent for medical treatment
control social and sexual contacts
make educational decisions
Powers not available in a Limited or
a General Conservatorship
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Sterilization
Involuntary commitment
Electro-convulsive shock therapy
psychotherapy
Determining if a conservatorship is
appropriate
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California law recognizes a rebuttable
presumption of capacity (Probate Code
810), which inquires into the following:
Is the person able to provide for his own
personal needs?
Is the person able to consent to medical
procedures?
Is the person able to make decisions?
Responsibilities of the Conservator
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To assess the needs and how to meet
them.
To choose the least restrictive, appropriate
living arrangement.
To ensure that appropriate health care is
available.
To respond to crises as they arise.
Rights of the Conservatee
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To control his own salary.
To make or change a will.
To marry unless specifically taken away by the
judge.
To receive personal mail.
Vote unless specifically taken away by the judge.
To be represented by an attorney.
To ask for a new conservator.
To ask for the conservatorship to end.
Alternatives to Conservatorship
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Communication
Self Advocacy Training
Facilitators to assist in decision-making
More alternatives
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Authorized representation and advocacy
(WIC § 4648(b)(2))
Family input into regional center programs
(WIC § 4501)
Service coordinator as an advocate
(WIC § 4647 ( c))
Area Board as advocate
(WIC § 4590 and 4705(e))
OCRA
(WIC § 4433 and 4900 et seq.)
Advocacy Assistance
(WIC § 4512(b))
More Alternatives
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Guardian ad Litem (CCP § 372)
Transfer of Educational Decision Making
Authority (ED Code § 56041.5)
Representative payeeship (20 CFR § 416.601)
Power of Attorney for finances is revocable and
must be notarized (Probate Code § 4400-4409)
Contract law of Rescission (Civil Code § 38, 39,
1688, and 1689)
Non-Garnishment of SSI and SSDI (42 USC §
407 and 1383(d)(1))
More Alternatives
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Durable Power of Attorney for Health Care
requires 2 witness’ signatures or notarized and is
revocable (Probate Code § 4600-4753)
Regional Center authorization for medical,
surgical, or dental care (WIC § 4655)
Court authorization for specific operations
(Probate Code § 1950 and 3200)
Emergency medical procedures (B & P Code
§2397 and 1627.7 for dentists)
ICF/SNF interdisciplinary requirements for
authorization ( H & S Code § 1418.8)
How a Conservatorship is
established
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A petition is filed with the court,
Copies of the petition are sent to specified
relatives and agencies,
Court investigator interviews the proposed
conservatee,
Regional Center submits a report for a
limited, and
A hearing takes place.
Role of the Regional Center
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Under Probate Code § 1827.5 Regional Center
must file a report with the court in a limited
conservatorship proceeding. This report must
contain information relating to;
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The nature and degree of the disability
Information on the person’s physical condition
Information on the person’s mental condition and
social adjustment
Information on the areas of which the person requires
assistance
Terminating a Conservatorship
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General
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Death of the conservatee
Order of the court
Limited
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Death of the conservator
Death of the conservatee
Order appointing a general conservator
Order stating that it is no longer necessary
Cost of Obtaining a
Conservatorship
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Legal costs vary per hour or flat rate
Court costs
Report costs
Copies of Letters
Do It Yourself?
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In Pro Per filings
LPS Conservatorship
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The purpose of this type of
conservatorship is to provide individualized
treatment, supervision, and placement for
a person who is gravely disabled as a
result of a mental disorder.
Initiation of an LPS
Conservatorship
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A mental health professional refers the
case to the public guardians office
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Private and public psychiatric hospitals
officially designated by the Los Angeles
County Board of Supervisors, and
The Los Angeles County Department of
Mental Health and its service area offices are
also designated professionals.
Responsibilities of the LPS
Conservator
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Take reasonable steps to obtain authorized
mental health treatment.
Obtain other services as needed:
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Food,
Shelter,
Clothing,
Placement in the least restrictive setting
Rights retained by the Conservatee
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All not specified by the court order.
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Examples
Medical Consent
 Financial duties
 Voting
 Driving a car
 Possessing a firearm
 Entering into contracts
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Termination of the LPS
Conservatorship
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It must be renewed annually as it
automatically expires after one year.
Dementia Conservatorship
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The purpose of this type of
conservatorship is to give another person
authority to chose a placement for the
person with dementia.
Initiation of a Dementia
Conservatorship
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A petition is filed with the court.
The petition must be supported by a
declaration of a physician or psychologist.
A court investigator is appointed and
conducts an investigation.
A hearing is held.
Criteria for a Dementia
Conservatorship
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Must have all of these characteristics;
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Diagnosed with dementia,
Lack capacity to give informed consent to placement,
At least one mental functioning deficit which impairs
your ability to understand consequences,
You need or would benefit from placement, and ,
The court finds that the placement is the least
restrictive.
Termination of a dementia
Conservatorship
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Terminates the same way as a probate
Conservatorship