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CONSERVATORSHIPS AND ALTERNATIVES

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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CONSERVATORSHIPS AND ALTERNATIVES

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  1. CONSERVATORSHIPSAND ALTERNATIVES

  2. 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.

  3. 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

  4. 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

  5. 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

  6. Powers not available in a Limited or a General Conservatorship • Sterilization • Involuntary commitment • Electro-convulsive shock therapy • psychotherapy

  7. Determining if a conservatorship is appropriate • 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?

  8. Responsibilities of the Conservator • 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.

  9. Rights of the Conservatee • 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.

  10. Alternatives to Conservatorship • Communication • Self Advocacy Training • Facilitators to assist in decision-making

  11. More alternatives • 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))

  12. More Alternatives • 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))

  13. More Alternatives • 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)

  14. How a Conservatorship is established • 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.

  15. Role of the Regional Center • 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

  16. Terminating a 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

  17. Cost of Obtaining a Conservatorship • Legal costs vary per hour or flat rate • Court costs • Report costs • Copies of Letters

  18. Do It Yourself? • In Pro Per filings

  19. LPS 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.

  20. Initiation of an LPS 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.

  21. Responsibilities of the LPS Conservator • Take reasonable steps to obtain authorized mental health treatment. • Obtain other services as needed: • Food, • Shelter, • Clothing, • Placement in the least restrictive setting

  22. Rights retained by the Conservatee • All not specified by the court order. • Examples • Medical Consent • Financial duties • Voting • Driving a car • Possessing a firearm • Entering into contracts

  23. Termination of the LPS Conservatorship • It must be renewed annually as it automatically expires after one year.

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

  25. Initiation of a Dementia 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.

  26. Criteria for a Dementia 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.

  27. Termination of a dementia Conservatorship • Terminates the same way as a probate Conservatorship

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