Does the Proposed Conservatee Lack Capacity

The Due Process in Competence Determinations Act (DPCDA) (Prob C §§810–813, 1801, 1881, 3201, 3204, 3208) sets forth guidelines for assessing the proposed conservatee’s legal competence. Probate Code §810 begins by codifying the presumption that all persons have the capacity to make their own decisions and take responsibility for their own actions. This presumption affects the burden of proof. Prob C §810(a). To overcome the presumption and obtain an order establishing a conservatorship, the petitioner must prove by clear and convincing evidence that the proposed conservatee either cannot provide for his or her own personal needs (conservator of the person; Prob C §1801(a)) or cannot manage his or her financial resources or resist fraud or undue influence (conservator of the estate; Prob C §1801(b)). Prob C §1801(e).

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