Limited Conservatorship  Workshop   Welcome ABOARD

Limited Conservatorship Workshop Welcome ABOARD PowerPoint PPT Presentation


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Limited Conservatorship Workshop Welcome ABOARD

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1. Limited Conservatorship Workshop Welcome ABOARD!

2. Please Fill Out Your Blue Sheets If you indicate that you do not want to be contacted – we will not contact you.

4. HOW IS THIS PRESENTATION ORGANIZED? Workshop “Chapters” Introduction and History Medical Decisions Powers of Attorney Lanterman Act and IPPs Conservatorship Basics Intake Process Process Fees

5. Limited Conservatorships for Persons with Developmental Disabilities The Dale Law Firm, PC 1670 Riviera Ave, Suite 101 Walnut Creek, California 94596 Serving the needs of persons with disabilities and their families

6. Things to Think About One of the many difficult decisions that a parent of a developmentally disabled child must make is whether or not to conserve their child when the child turns 18. Must balance between allowing your child to make choices for themselves, and authorizing someone to make decisions for them.

7. Age 18 Legal decision making authority of the parents ends regardless of the circumstances A person is not presumed incompetent merely because of a diagnosis of a developmental disability

8. Does Every Developmentally Disabled Person Need A Limited Conservatorship? NO! All alternatives should be considered A conservatorship is limiting the conservatee’s civil rights

9. History of Limited Conservatorships Prior law allowed a person with a developmental disability to be conserved with very little due process Limited Conservatorships were heavily influenced by the practice of systematically sterilizing persons with developmental disabilities in State Hospitals

10. History of Limited Conservatorships Under California law, people with "mental disease" could be sterilized if doctors believed the condition could be passed to descendants. The superintendents of state institutions had broad authority to decide how often to use the procedure.

11. History of Limited Conservatorships Sterilizations remained legal until 1979. Today, a court-appointed conservator must petition a judge for permission.

12. Concept of the Limited Conservatorship Limited Conservatorships are intended to give the Conservator just the right amount of powers tailored to your loved one’s needs Think of it like a smorgasbord – you can select among 7 items according to the situation

13. Process of Determining Whether a Conservatorship is Appropriate Consider all alternatives – is there a less intrusive or costly alternative Financial Power of Attorney Health Care Directives An authorized representative may be designated by the local Area Board, a state advocacy agency, for Regional Center IPP meetings Regional Center for Health Care Decisions Special Needs Trust

14. End of Section “Introduction and History” Next Section: “Medical Decision Making”

15. Limited Conservatorships for Persons with Developmental Disabilities The Dale Law Firm, PC 1670 Riviera Ave, suite 101 Walnut Creek, California 94596 Serving the needs of persons with disabilities and their families

16. Establishing Actual Incapacity The “mere diagnosis of a mental or physical disorder” is not enough to establish “unsound mind” or lack of capacity to do a certain act. Prob.C. § 811(d). Once again, for limited conservatorships, the mere diagnosis of somebody that is developmentally disabled does not necessarily make them conservatable. Look for facts that the conservatee is not paying bills. So the conservatee is not paying bills, they are unable to remember whether they have paid bills, can’t balance checkbook. Those are facts that you link to the deficit of short term memory loss.. That shows that they are unable to manage their financial affairs, to resist fraud of undue influence, or to properly provide for food, clothing and shelter. Other things to look for are leaving the stove turned on, inability to use sound judgment - looking strangers in the door.Once again, for limited conservatorships, the mere diagnosis of somebody that is developmentally disabled does not necessarily make them conservatable. Look for facts that the conservatee is not paying bills. So the conservatee is not paying bills, they are unable to remember whether they have paid bills, can’t balance checkbook. Those are facts that you link to the deficit of short term memory loss.. That shows that they are unable to manage their financial affairs, to resist fraud of undue influence, or to properly provide for food, clothing and shelter. Other things to look for are leaving the stove turned on, inability to use sound judgment - looking strangers in the door.

17. Capacity for Medical Treatment There is a rebuttable presumption that an individual has the capacity to give informed medical consent. Prob.C. §810(a).

18. Capacity for Medical Treatment 3 Part Test A person has capacity to give or refuse informed consent if that person can do all of the following (Prob.C. §813(a)-(c)):

19. Capacity for Medical Treatment 3 Part Test (1) Respond knowingly and intelligently to queries about that medical treatment.

20. Capacity for Medical Treatment 3 Part Test (2) Participate in that treatment decision by means of a rational thought process.

21. Capacity for Medical Treatment 3 Part Test 3 Understand all of the following items of minimum basic medical treatment information with respect to that treatment: (a) The nature and seriousness of the illness. (b) The nature of the recommended medical treatment. c) The probable degree and duration of any benefits, risks and the consequences of lack of treatment. (d) The nature, risks, and benefits of any reasonable alternatives.

22. The director of a regional center or the director’s designee may give consent to medical, dental, and surgical treatment of a regional center client and provide for such treatment if the developmentally disabled person has no parent, guardian, or conservator legally authorized to consent . Regional Center’s Authority to Authorize Medical Treatment under the Lanterman Act

23. Although the Lanterman Act does not specify or limit who might be qualified to be designated to make medical decisions, the designee is almost always a regional center staff member.

24. Advance Health Care Directives The Advance Health Care Directive, appoints an agent to make health care decisions for the individual who can no longer do so. Enables the principal to express his or her wishes about life-sustaining treatment, anatomical gifts, and other health care issues. It is quick and inexpensive. It can be undone as quickly if the individual objects Prior to the change in the legislation to allow for the advance health care directives, it allows them to make personal decisions for the conservatee; e.g., where the conservatee will reside. A lot of conservatorships have been done is because although there was a DPOA for finances or for health care, there was no authority to place the principal. The principal may be objecting so even though all this planning end up with a conservatorship because all the issues that have arisen subsequent to executing a power of attorney.Prior to the change in the legislation to allow for the advance health care directives, it allows them to make personal decisions for the conservatee; e.g., where the conservatee will reside. A lot of conservatorships have been done is because although there was a DPOA for finances or for health care, there was no authority to place the principal. The principal may be objecting so even though all this planning end up with a conservatorship because all the issues that have arisen subsequent to executing a power of attorney.

25. Presumption of Capacity A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate.

26. Presumption of Capacity Unless otherwise specified in a written advance health care directive, a determination that a person lacks or has recovered capacity shall be made by the primary physician.

27. Limitations California law does not allow an agent to authorize Commitment to or placement in a mental health treatment facility. Convulsive treatment Psychosurgery Sterilization. Abortion. Mercy killing, assisted suicide, or euthanasia.

28. Who Cannot be an Agent The supervising health care provider or an employee of the health care institution where the patient is receiving care. An operator or employee of a community care facility or residential care facility where the patient is receiving care unless the agent is related by blood, marriage, or adoption, or is a registered domestic partner of the patient.

29. Originals and Copies A copy of a written advance health care directive, revocation of an advance directive, or designation or disqualification of a surrogate has the same effect as the original.

30. End of Section “Medical Decision Making” Next Section: “Powers of Attorney”

31. Limited Conservatorships for Persons with Developmental Disabilities The Dale Law Firm, PC 1670 Riviera Ave, suite 101 Walnut Creek, California 94596 Serving the needs of persons with disabilities and their families

32. Powers of Attorney A Power of Attorney, in California, is a written instrument where a person designates to someone else to act on the principal's behalf. The powers granted to an agent may be extremely broad or for a specific transaction.

33. Durable and Springing Powers of Attorney A Durable Power of Attorney (DPA) indicates in the document that the agent will retain legal authority even if the principal becomes mentally incompetent. A Springing DPA becomes effective only upon a designated time, such as when a physician certifies that the principal has lost capacity.

34. Durable Power of Attorney A DPA is a relatively easy, inexpensive way to give someone the ability to manage your financial affairs. DPA does not give the agent legal access to the principal’s assets for the agent’s own use, and DPAs terminate upon the principal’s death.

35. A DPA can also help a caregiver plan for government benefits such as Medi-Cal by allowing the agent to transfer the principal’s property.

36. The main disadvantage of the DPA is that it can be subject to abuse because the court does not actively supervise the agent. This is why it is extremely important to choose an agent you trust to capably handle your affairs.

37. End of Section “Powers of Attorney” Next Section: “The Lanterman Act and IPP”

38. Limited Conservatorships for Persons with Developmental Disabilities The Dale Law Firm, PC 1670 Riviera Ave, suite 101 Walnut Creek, California 94596 Serving the needs of persons with disabilities and their families

39. Where to get a copy of the Lanterman Act Regional Centers Area Boards www.dds.ca.gov/ConsumerCorner/LantermanActGuide.cfm

40. IPP Participation On occasion, a parent will initiate a conservatorship of the person because they are being excluded from the regional center process. This in most cases is just plain wrong and violates the Lanterman Act

41. What is the Lanterman Act? The Lanterman Act is California’s civil rights act for persons with developmental disabilities.

42. What is the Lanterman Act? Was instituted by families and consumers with developmental disabilities to: move consumers from State Hospitals (now called Developmental Centers) into the community allow consumers to have greater control over their lives. Gave consumers specific rights

43. The Lanterman Act In 1969 Assemblyman Frank D. Lanterman the "Lanterman Mental Retardation Services Act." This act created a regional center network of services through the State of California.

44. The Lanterman Act In 1973 Assemblyman Lanterman authored a bill which extended the regional center mandate to include persons with cerebral palsy, epilepsy, autism and other conditions similar to mental retardation.

45. The Lanterman Act In 1976 the Lanterman Developmental Disabilities Services Act was amended to establish the right to treatment and habilitation services for person with developmental disabilities.

46. Lanterman Act and IPPs The Lanterman Act Established a Regional Center system to provide the resources that consumers and families need to live in the community a system called Individual Program Plans (IPPs) to determine what services are needed by each consumer a system that is designed to empower consumers and family members.

47. Lanterman Act and IPPs 4646. (a) It is the intent of the Legislature to ensure that the individual program plan and provision of services and supports by the regional center system is centered on the individual and the family of the individual with developmental disabilities and takes into account the needs and preferences of the individual and the family, where appropriate, as well as promoting community integration, independent, productive, and normal lives, and stable and healthy environments. It is the further intent of the Legislature to ensure that the provision of services to consumers and their families be effective in meeting the goals stated in the individual program plan, reflect the preferences and choices of the consumer, and reflect the cost-effective use of public resources.

48. Lanterman Act and IPPs (b) The individual program plan is developed through a process of individualized needs determination. The individual with developmental disabilities and, where appropriate, his or her parents, legal guardian or conservator, or authorized representative, shall have the opportunity to actively participate in the development of the plan.

49. Lanterman Act and IPPs d) Individual program plans shall be prepared jointly by the planning team. Decisions concerning the consumer's goals, objectives, and services and supports that will be included in the consumer's individual program plan and purchased by the regional center or obtained from generic agencies shall be made by agreement between the regional center representative and the consumer or, where appropriate, the parents, legal guardian, conservator, or authorized representative at the program plan meeting.

50. Authorized Representative Assigned by Area Board If the rights or interests of a consumer is not properly protected or advocated, the local area board may appoint a person or agency as the Authorized Representative. The Authorized Representative may participate in IPPs and Fair Hearings

51. What If Your Regional Center Not Honoring your Rights under the Lanterman Act? The Regional Center system is your system. The Centers are governed by boards made up primarily of consumers and family members The board only knows what is presented to them

52. Regional Center Board Meetings 4660. All meetings of the board of directors of each regional center shall be scheduled, open, and public, and all persons shall be permitted to attend any meeting, except as otherwise provided in this section. Regional center board meetings shall be held in accordance with all of the following provisions: Each regional center shall provide a copy of this article to each member of the regional center governing board upon his or her assumption of board membership. As used in this article, board meetings include meetings conducted by any committee of the governing board which exercises authority delegated to it by that governing board. However, board meetings shall not be deemed to include board retreats planned solely for educational purposes. At each regional center board meeting, time shall be allowed for public input on all properly noticed agenda items prior to board action on that item. Time shall be allowed for public input on any issue not included on the agenda.

53. Conclusion The Lanterman Act and system it established was accomplished because of the advocacy of consumers, families and civil rights advocates. To serve your loved-one participation is a must. Attend your Regional Center Board Meetings Tell them when you see a problem (or if something is going well). Educate your neighbors and legislators about the importance of the Regional Center Service System

54. End of Section “The Lantermann Act and IPPS” Next Section: “Conservatorship Basics”

55. Limited Conservatorships for Persons with Developmental Disabilities The Dale Law Firm, PC 1670 Riviera Ave, suite 101 Walnut Creek, California 94596 Serving the needs of persons with disabilities and their families

56. Limited Conservatorships for Persons with Developmental Disabilities The Dale Law Firm, PC 1670 Riviera Ave, Suite 101 Walnut Creek, California 94596 Serving the needs of persons with disabilities and their families

57. Omnibus Conservatorship & Guardianship Reform Act The cost of a limited conservatorship has drastically increased due to the Omnibus Conservatorship and Guardianship Reform Act of 2006 Much of this legislation was prompted by a series of articles in 2005 by the Los Angeles Times

59. Omnibus Conservatorship & Guardianship Reform Act The introduction to the Omnibus Act declares that "the conservatorship system in California is fundamentally flawed and in need of reform.”

60. The legislature responded by: Increasing the involvement of the court in investigating conservatorships Making the process of temporary emergency conservatorships prohibitively burdensome Increasing the number of people that must be noticed Increasing the frequency of court accounting Making the accounting process more intent Omnibus Conservatorship & Guardianship Reform Act

61. The California Legislature is Fundamentally Flawed Of course they did not adequately fund these mandates The result is: Chaos for many courts struggling to comply Many attorneys no longer accept conservatorship cases Cost of conservatorships has increased dramatically

62. Families with Developmentally Disabled Loved-ones are Caught in a Bind The necessity for conservatorships has increased over the past few years because of HIPPA requirements The cost of obtaining a conservatorship has doubled over the last decade

63. Court Fees (Fees can vary depending on County) Filing Fees - $355 Conservatorship Handbook - $20 Ex Parte Petition for Court Appointed Attorney - $40 Certified copies of Letters - $27 and up Court Investigator $800 and up Court Appointed Attorney - $250 - $300

64. Our Fees Attorney and paralegal fees are based on an hourly rate Our office is making every attempt to reduce fees by being efficient Attorneys make legal decisions Paralegals focus on the legal process At the initial meeting the attorney and the paralegal will address potential problems

65. How Can You Help? Enter into this process based on knowledge Be thorough in gathering information Hand deliver the capacity declaration to your physician Identify anyone that might contest the conservatorship Keep co-conservators at a minimum

66. Last Thoughts Consider all alternatives Most conservatorships go very smoothly Both the courts and the Regional Center System are facing staggering financial challenges – your advocacy has never been more important

67. For more information, please check out our websites at: www.achievingindependence.com www.dalelawfirm.com www.gspt.org

68. Limited Conservatorships for Persons with Developmental Disabilities The Dale Law Firm, PC 1670 Riviera Ave, Suite 101 Walnut Creek, California 94596 Serving the needs of persons with disabilities and their families

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