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.

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).