Is the Person Subject to Fraud or Undue Influence?

Probate Code §1801(b) describes two types of people for whom a conservator of the estate may be appointed:
One who is “substantially unable to manage his or her own financial resources,” and
One who is “substantially unable to … resist fraud or undue influence.”
The distinction makes sense because one who is substantially able to manage his affairs may nevertheless lack the resilience to resist fraud or undue influence, or, after the fact, the stamina necessary to rectify the wrong he has suffered. As a result, when the proposed conservatee is subject to fraud or undue influence, the evidence of lack of capacity probably need not be as convincing. If the petitioner can present clear and convincing evidence of the fraud or undue influence and can show that the proposed conservatee’s mental function deficits prevent him from resisting further wrongdoing, the court should appoint a conservator to protect the proposed conservatee and, if necessary, to redress the wrong already committed.Prob C §1801.
When the proposed conservatee is subject to fraud or undue influence, the alternatives to a conservatorship are rarely sufficient to protect the conservatee. Nevertheless, the petitioner must consider each alternative and explain to the court why it will not work. Prob C §1821(a)(3).

Does the Proposed Conservatee Lack Capacity to Give Informed Consent to Medical Treatment?

A proposed conservatee is presumed to have the capacity to make health care decisions. See Prob C §2354(a). A determination of lack of capacity may be sought under the following statutes:
Prob C §1881 (determination of whether conservatee lacks capacity to give informed consent to any form of medical treatment) and §2355 (conservator’s power to consent to health care for conservatee when conservatee lacks capacity) (seechap 13);
Prob C §2356.5 (conservatorship for person with dementia) (see §§13.58–13.68); and
Prob C §§3200–3212 (capacity determinations and health care decisions for persons without a conservator) (see §2.30).
Probate Code §1881 requires an analysis very similar to that of Probate Code §§813–814, but focuses on the criteria for a judicial determination of incapacity for medical decisions. To request a court order that the proposed conservatee lacks the capacity to give informed consent to medical treatment, it is necessary to submit a doctor’s opinion (Prob C §1890(c)); the opinion must be provided on the Capacity Declaration—Conservatorship (Judicial Council Form GC-335).
Although a doctor’s opinion is not necessary to establish a conservatorship, a doctor’s opinion is necessary to obtain powers under Prob C §2356.5. These powers, called “dementia powers,” include authority for the conservator to consent to the administration of psychotropic medications or to place the conservatee in a “secured perimeter residential care facility” or a “locked and secured nursing facility which specializes in the care and treatment of people with dementia.” Prob C §2356.5(b)–(c). The designation “dementia powers” is misleading because “psychotropic medications” include selective serotonin reuptake inhibitors and other classes of drugs routinely prescribed for people who do not have dementia.

Doctor’s Diagnosis and Opinion to determine incapacity

A doctor’s opinion is not necessary to establish lack of capacity. Indeed, a diagnosis of a mental or physical disorder is not, by itself, sufficient evidence for a finding that one lacks the legal capacity to contract, convey, marry, make medical decisions, and so forth. Prob C §810. Nevertheless, a doctor’s opinion is persuasive evidence, especially if the petitioner can correlate it with the proposed conservatee’s behavior. For example, if the proposed conservatee is diagnosed with anxiety and depression (see Prob C §811(a)(4)), the petitioner should illustrate the effect of the disorder on the proposed conservatee’s ability to make decisions.

Deficits Must Impair Ability to Act; Isolated Incidents Are Not Enough for Conservatorship

The court may consider a deficit in mental functioning as evidence that the proposed conservatee lacks capacity only if the deficit “significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.” Prob C §811(b). For example, to establish a deficit in alertness and attention, it would not be sufficient to allege that the proposed conservatee is drowsy all day and inattentive to his or her surroundings. Instead, the petition must show that the proposed conservatee fails to bathe and eat for days at a time or that, due to lack of attention, he or she routinely wanders into unfamiliar neighborhoods and becomes lost or disoriented.
Incapacity cannot be established by evidence of isolated incidents of negligence or improvidence. Prob C §1801(b). For instance, if the proposed conservatee fails to pay her utility bills for several months, but pays them when the utility company sends a notice of nonpayment, the evidence is insufficient to establish incapacity. By contrast, if several utility companies terminate service for nonpayment, the petitioner seeking a conservatorship of the estate may use this to prove that the proposed conservatee is substantially unable to manage his or her financial resources.
It is important to note that the test is whether the person can handle his or her own financial resources. In some cases, the proposed conservatee may be able to handle simple financial matters but has significant assets and a complicated financial picture. The court cannot rule out a conservatorship of the estate in such cases.

Deficits in Mental Function Required for a conservatorship

Probate Code §811 lists four mental functions: (1) alertness and attention, (2) information processing, (3) thought processes, and (4) ability to modulate mood and affect. The petitioner must present evidence that the proposed conservatee has a deficit in one or more mental functions and that there is a correlation between the deficit or deficits and the acts or decisions of the proposed conservatee. In other words, the deficits must render the proposed conservatee unable to make and communicate decisions or to understand and appreciate the consequences of those decisions, with the effect that a conservatorship is necessary. Prob C §§811–812, 1801.
For each of the mental functions in Prob C §811, the statute identifies factors to consider. For example, alertness and attention includes, but is not limited to, level of arousal or consciousness; orientation to time, place, person, and situation; and ability to attend and concentrate. Prob C §811(a)(1). Similarly, deficits in thought processes may be demonstrated by severely disorganized thinking; hallucinations; delusions; or uncontrollable, repetitive, or intrusive thoughts. Prob C §811(a)(3).

How do I prove capacity or lack thereof for conversatorship?

That proof is made by applying the analytical structure of Prob C §811 to the facts of the proposed conservatee’s life. The best practice is to do this in the initial conservatorship pleadings. A verified Petition for Appointment of Probate Conservator (Judicial Council Form GC-310) and the accompanying Confidential Supplemental Information declaration (Judicial Council Form GC-312), if uncontested, will be accepted as evidence. See Prob C §1022. Thus, if the initial pleadings present clear and convincing evidence of the need for a conservatorship and are uncontroverted, the court may order the conservatorship without hearing further evidence. Prob C §§1022, 1801(e).

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).

What are conservatee’s rights

Because the establishment of a conservatorship significantly curtails the conservatee’s rights, the court may not appoint a conservator unless the need for one is established by clear and convincing evidence. Prob C §1801(e). The court must review the conservatorship periodically to ensure that it remains in the best interests of the conservatee; the court investigator must report to the court at the following times (Prob C §§1800(e), 1850—but see Caveat below):
Six months after the appointment, to report whether the conservatorship is appropriate and whether the conservator is acting in the best interests of the conservatee; and
One year after the appointment of the conservator and annually thereafter, unless the court sets a different review period.
These provisions, like most of the law of conservatorships in the Probate Code, reflect the stated public policy of protecting the interests of the conservatee.

What power does the conservator have?

Under a conservatorship of the person, the conservator has the “care, custody and control” of the conservatee, which includes the power to determine where the conservatee will live. The conservatee, however, is presumed to have the capacity to make medical decisions (Prob C §2354) unless the court finds, pursuant to a petition requesting that the conservator have exclusive medical powers under Prob C §2355, that the conservatee lacks the capacity to give informed consent to any form of health care.

Effect of Establishment of a Conservatorship

The establishment of a conservatorship shifts the responsibility for making financial and personal care decisions from the conservatee to the conservator; the relationship of conservator and conservatee is a fiduciary relationship. P

A conservatorship imposes significant limitations on the conservatee’s ability to act on his or her own behalf. Under a conservatorship of the estate, a conservatee is presumed to lack capacity to contract; to sell, transfer, or convey property; to make gifts; to incur debts (except in limited circumstances); to delegate powers; to waive any rights; or to serve as a fiduciary.