WORLD CONGRESS ON ADULT GUARDIANSHIP

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1 Session Date: May 29, 2014 Session Time: 11:45am to 12:45pm WORLD CONGRESS ON ADULT GUARDIANSHIP ALTERNATIVES TO GUARDIANSHIP FOR YOUNG ADULTS WITH DISABILITIES Presenter Notes for: BERTHA SANCHEZ HAYDEN, ESQ BET TZEDEK LEGAL SERVICES 1 P age

2 Innovative Approach to Client Services Bet Tzedek Legal Services has developed two signature projects to address the legal and social needs of developmentally disabled adults and their family members/caregivers at vastly different stages in their lives. Family Matters Project: Families with developmentally disabled minor children spend 17 years learning to navigate the complicated systems of healthcare, education, and public benefits for their children. Many parents assume their child s disability will entitle them to continue to make decisions in these areas beyond their child reaching the age of majority. Unfortunately, families are often unaware or misinformed of the legal implications of their child reaching the age of majority. Family Matters aims to eliminate confusion and empower families through educational outreach in the areas of supported decision- making (i.e. Durable Power Of Attorneys, Power of Attorneys for Health Care) and surrogate decision making (i.e. Conservatorship). Educational outreach is conducted at Los Angeles Unified District Special Education High Schools and local Children s Hospitals. The Transitions Project: The Transitions Project is an initiative of Bet Tzedek Legal Services to address the complex legal and social needs of aging developmentally disabled adults and their aging caregivers. To address the legal needs of these families Bet Tzedek educates families on how to plan for the future and provides direct legal services in the areas of: Durable Power of Attorney; Durable Power of Attorney for Health Care; Conservatorship; Public Benefits; and HealthCare Rights. To address social service needs of families Bet Tzedek has convened the Transitions Coalition. The Coalition brings together a group of professionals, government agencies, parents, and stakeholders to create a coordinated system of care that address aging and disability issues. 2 P age

3 California s Conservatorship (Adult Guardianship System): Conservatorships are established under the statutory requirements of the California Probate Code, or the under the Lanterman- Petris- Short Act. Conservatorships based upon the California Probate Code fall under the category of Probate Conservatorships. Conservatorships established under the Lanterman- Petris- Short Act are called LPS Conservatorships, and are governed by the California Welfare and Institutions Code. Probate Conservatorships: Probate Conservatorships may be initiated by a family member, friend, or a professional conservator/the Department of Developmental Services. The two (2) conservatorships found in the California Probate Code are: General Conservatorship and Limited Conservatorship. i. General Conservatorship is established for an adult whose impairment is caused by aging, illness, or injury. The typical conservatee in a general conservatorship is either an elderly person suffering from dementia or Alzheimer s disease or a young adult who suffered a debilitating impairment (i.e., a traumatic brain injury). Establishing General Conservatorship: The court may establish either a conservatorship of the person or the estate, or both if necessary for the adult s protection. A Conservator of the Person will be appointed if the court finds the adult is unable to properly provide for his or her personal needs for physical health, food, clothing, or shelter. A Conservator of the Estate may be established if there is a showing that the adult is substantially unable to manage his or her own financial resources or resist fraud or undue influence. (See Cal. Prob. Code 1801). Powers Granted to Conservator: In general an individual appointed conservator of the person has the care, custody, control, and charge of education of the conservatee. (See Prob. Code 2351). Other powers may be granted or withheld as necessary for the protection and benefit of the conservatee. For example, a conservator will only have the ability to consent or withhold consent for medical treatment if the court finds the conservatee lacks the capacity to give informed consent to medical treatment (Se e Cal Prob. Code 2354). To the extent specifically ordered by the court, the conservator of the estate has the management and control of the estate. (See Cal Prob. Code 2401). Standard of Proof: The appointment of the conservatorship of the person and/or estate is based on clear and convincing evidence. (See Cal. Prob. Code 1801 (c)). ii. Limited Conservatorship is designed to support the needs of a developmentally disabled adult whose disability originated before their 18 th birthday, is expected to continue indefinitely, and constitutes a substantial handicap. In a limited conservatorship the person seeking to be appointed is referred to as limited 3 P age

4 conservator, and the individual needing protection is known as limited conservatee (See Below for a Detailed Discussion). LPS Conservatorships are designed to serve the needs of an adult who is unable to provide for himself or herself as a result of a mental illness or addiction, and is governed by the California Welfare and Institutions Code. LPS conservatorships may only be initiated by a local government agency (Office of the Public Guardian) and brought in mental health court. Limited Conservatorship Legislative Background: The California legislature created the limited conservatorship system to promote and encourage maximum self- reliance for the developmentally disabled individual who is conserved. The conservator appointed under the limited conservatorship system has an affirmative duty to help the conservatee receive services that will result in a more, independent, productive, and normal li[f]e. (See Cal. Prob. Code 1801(d).) Developmental Disability Defined: A developmental disability is a disability that originates before an individual attains the age of 18, continues, or can be expected to continue, indefinitely, and constitutes a substantial handicap for such individual. (See Cal. Prob. Code 1420). Limited Conservatorship of the Person Establishing Limited Conservatorship The court will establish a limited conservatorship if the court finds the proposed limited conservatee lacks the capacity to perform some, but not all, of the tasks necessary to provide properly for his or her own personal needs for physical health, food, clothing, or shelter. ( See Cal. Prob. Code (c)). Standard of Proof: Probate Code Section 1801(e) provides the appointment of a conservator is based on a showing of clear and convincing evidence. At hearing the court will inquire and evaluate: (1) the extent and nature of the proposed conservatee s disability; (2) the extent of the impairment of proposed cosnervatee s adaptive behavior; (3) ascertain proposed cosnervatee s ability to take care of their person and/or estate; and (4) inquire into the qualifications and abilities of the proposed limited conseravtors. (See Cal. Prob. Code (a)). 4 P age

5 Powers Granted to Limited Conservators of the Person: General Appointment Powers: Subject to the discussion below, a person appointed limited conservator of the person has the care, custody, and control of the limited conservatee. Additionally the limited conservator has a responsibility to secure for the limited conservatee habilitation or treatment, training, education, medical and psychological services, and social and vocational opportunities, which will benefit the limited conservatee in the development of maximum self- reliance and independence. (See Cal. Prob. Code (1)- (2)). The Seven Powers: Pursuant to California ProbateCode (e) the court: shall define the powers and duties of the limited conservator so as to permit the developmentally disabled adult to care for himself or herself or to manage his or her financial resources commensurate with his or her ability to do so. As such, in a petition for limited conservatorship of the person the petitioner must specify the areas where they believe the developmentally disabled person needs protection. Cal. Prob. Code (b) enumerates the powers that may be requested: (1) The power to decide where the limited Conservatee will live; (2) The power to gain access to the confidential records and papers of the limited Conservatee; (3) The power to consent or withhold consent to the marriage of, or the entrance into a registered domestic partnership by, the limited conservatee; (4) The power to control the right of the limited Conservatee to contract; (5) The power to provide or withhold consent to medical treatment for the limited conservatee; (6) The power to control the limited conservatee s social and sexual contacts and relationships; and (7) The power to make all decisions regarding the limited conservatee s education. 5 P age

6 Disqualification from Voting: Pursuant to Cal. Prob. Code 1910 the court may make a determination to disqualify the proposed limited conservatee from voting. Other Professionals Involved in Limited Conservatorship Matters: Court Appointed Attorneys, Regional Centers, and Probate Investigators The filing of a Limited Conservatorship matter triggers the involvement of: (1) a court appointed attorney for the proposed conservatee (PVP); a Regional Center; and the court s office of Probate Investigator. The Role of the Court Appointed Attorney (PVP) Mandatory Appointment: Pursuant to Cal. Prob. Code 1471, the court will appoint an attorney (a PVP ) from the Probate Volunteer Panel to represent the interests of the proposed conservatee in the limited conservatorship proceeding. The Probate Volunteer Panel consists of attorneys who satisfied qualification requirements of the court and are highly experienced in the area of limited conservatorships. The primary role of the PVP is to represent the proposed conservatee and to inform the court of the proposed conservatee s interests. (See Los Angeles Superior Local Court Rule 4.125). The PVP submits a report with recommendations to the court. The Role of the Regional Center: Regional Centers are non- profit corporations who contract with the California Department of Developmental Services to provide services and resources to developmentally disabled persons residing in the state of California. The Regional Center must assess the proposed Conservatee within thirty [30] calendar days after conservatorship petition has been filed (and notice has been received). Regional Centers refer to their clients as consumers. Each consumer is assigned to a Regional Center based on their zip code. Consumers have assigned service coordinators who assist with services and the preparation of the regional center report. Regional Centers operate independently herefore each center employs different procedures for preparing reports. Certain Regional Centers set up a meeting called an Interdisciplinary Team (IDT) meeting. At an IDT meeting the proposed limited conservatee, proposed limited conservator(s), medical professionals, and additional Regional Center staff meet to assess the proposed Conservatee and discuss the impact of conservatorship. Other Regional Centers will base their Regional Center reports on the proposed conservatee s file. 6 P age

7 In either case the reports prepared by the Regional Center must include a description of the disability and recommendations of the Regional Center as to whether the powers enumerated in Cal. Prob. Code (b) should be granted to the petitioner. The Role of the Probate Investigator Pre Appointment: The filing of a probate conservatorship requires the court to appoint a court investigator. (See Cal. Prob. Code 1826.) In a general conservatorship matter the probate investigator is charged with: (1) interviewing the parties; (2) explaining the nature of the proceeding to the proposed conservatee; and (3) submitting a report to the court with the investigator s findings and recommendations. In limited conservatorships the court accepts the Regional Center's report in lieu of an investigator's report. In either a limited or a general conservatorship the office of probate court investigator will still conduct a background check on each person seeking to be appointed as conservator prior to hearing. Post Appointment: Pursuant to Cal. Prob. Code the court reviews newly established conservatorship one year after the initial appointment. These reviews are typically conducted by the office of probate investigator (See Cal. Prob. Code 1851) that dispatches investigators to the home or school of the conservatee. During a review the investigator is evaluating if the conservatorship is still appropriate and working for the benefit of the conservatee and conservator. After the first year review the court will typically set reviews on a biennial basis. Presenter Information: Bertha Sanchez Hayden, ESQ Family Matters Program Manager Contact Information: 7 P age

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