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CONSERVATORSHIPS AND ALTERNATIVES. What is a Conservatorship?. 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.

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CONSERVATORSHIPSAND ALTERNATIVES


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What is a Conservatorship?

  • 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.


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Who can be a Conservator?

  • 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:

    • 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


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Type of Conservatorships

  • 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

  • To determine residence

  • To have access to confidential records

  • To control the right to marry

  • To control the right to contract

  • To give consent for medical treatment

  • To control social and sexual contacts

  • To make educational decisions


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Powers not available in a Limited or a General Conservatorship

  • Sterilization

  • Involuntary commitment

  • Electro-convulsive shock therapy

  • psychotherapy


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Determining if a conservatorship is appropriate Conservatorship

  • 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?


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Responsibilities of the Conservator Conservatorship

  • 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.


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Rights of the Conservatee Conservatorship

  • 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.


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Alternatives to Conservatorship Conservatorship

  • Communication

  • Self Advocacy Training

  • Facilitators to assist in decision-making


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More alternatives Conservatorship

  • 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))


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More Alternatives Conservatorship

  • 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))


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More Alternatives Conservatorship

  • 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)


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How a Conservatorship is established Conservatorship

  • 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.


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Role of the Regional Center Conservatorship

  • 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;

    • 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


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Terminating a Conservatorship Conservatorship

  • General

    • Death of the conservatee

    • Order of the court

  • Limited

    • Death of the conservator

    • Death of the conservatee

    • Order appointing a general conservator

    • Order stating that it is no longer necessary


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Cost of Obtaining a Conservatorship Conservatorship

  • Legal costs vary per hour or flat rate

  • Court costs

  • Report costs

  • Copies of Letters


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Do It Yourself? Conservatorship

  • In Pro Per filings


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LPS Conservatorship Conservatorship

  • 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.


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Initiation of an LPS Conservatorship Conservatorship

  • A mental health professional refers the case to the public guardians office

    • 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.


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Responsibilities of the LPS Conservator Conservatorship

  • Take reasonable steps to obtain authorized mental health treatment.

  • Obtain other services as needed:

    • Food,

    • Shelter,

    • Clothing,

    • Placement in the least restrictive setting


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Rights retained by the Conservatee Conservatorship

  • All not specified by the court order.

    • Examples

      • Medical Consent

      • Financial duties

      • Voting

      • Driving a car

      • Possessing a firearm

      • Entering into contracts


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Termination of the LPS Conservatorship Conservatorship

  • It must be renewed annually as it automatically expires after one year.


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Dementia Conservatorship Conservatorship

  • The purpose of this type of conservatorship is to give another person authority to chose a placement for the person with dementia.


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Initiation of a Dementia Conservatorship Conservatorship

  • 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.


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Criteria for a Dementia Conservatorship Conservatorship

  • Must have all of these characteristics;

    • 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.


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Termination of a dementia Conservatorship Conservatorship

  • Terminates the same way as a probate Conservatorship


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