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.

What Is a Conservatorship

A conservatorship is a protective court proceeding. In a conservatorship of the person, a court-appointed fiduciary, the conservator, manages the personal care of a person who cannot properly provide for his or her personal needs for physical health, medical care, food, clothing, or shelter.

The conservator decides where the conservatee lives and may be required to decide whether the conservatee should live at home or in an institution. The conservator must make sure that the place selected is the “least restrictive” appropriate alternative that is available and necessary to meet the individual’s needs  but does not control the conservatee’s right to receive visitors, telephone calls and personal mail, nor other “personal rights,” unless personally limited by court order.

Setting Aside a Will or Trust for Lack of Capacity

Will contests and attacks on trusts often involve the question of whether the testator or settlor had the requisite mental capacity at the time the instrument was executed. In most cases, the analysis of capacity to execute wills and trusts is the same. More stringent tests for capacity may apply to trusts, however, when they are irrevocable or when property is transferred to an independent trustee.


To make a valid will, the testator must be at least 18 years of age and of sound mind. More specifically, a person is not mentally competent to make a will if at the time of making the will he or she either:

  • Does not have sufficient mental capacity to (1) understand the nature of the testamentary act, (2) understand and recollect the nature and situation of his or her property, or (3) remember and understand his or her relations to living descendants, spouse, parents, and others whose interests are affected by the will; or
  • Suffers from a mental disorder with symptoms including delusions or hallucinations that result in his or her devising property in a way that, except for the delusions or hallucinations, he or she would not have done.

A testator’s beliefs may be inaccurate without being delusional. A mere unfounded belief does not justify overturning a will when there is any evidence supporting the belief. To destroy testamentary capacity, a delusion must be one so irrational that no normal person could have it.

To justify setting aside a will, the alleged delusions or hallucinations must cause the testator to devise his or her property in a way that he or she would not have done in their absence. It is not sufficient merely to establish that a testator was the victim of delusions or hallucinations.

Advance Healthcare Directive

There are three main options for the drafting of documents in planning for health care decisions:

A statutory advance health care directive form ;
Preprinted forms, including the California Medical Association (CMA) , the California Hospital Association (CHA) form, a simply worded form from the Institute for Healthcare Advancement , and a form designed for persons with developmental disabilities from the Coalition for CompassionateCare of California; and
An attorney-drafted custom form, complying with statutory requirements.

Selecting the appropriate option will depend greatly on the health care choices the client wishes to make. The CMA form is the most widely used because hospital staff, hospice workers, doctors, and other health care providers accept it as a legally binding document. Using the CHA form may be prudent if the person signing it wants additional protection for not prolonging his or her life in situations not covered in the CMA form. The CHA form follows the statutory language exactly, while the CMA form  The easily understood form is useful for a client who may have trouble reading or comprehending legal documents. The form from theCoalition for Compassionate Care is an excellent choice for clients with developmental disabilities. An attorney-drafted form may be questioned by an inexperienced health care facility employee who is familiar only with the preprinted forms. Such questions may cause delays in treatment while the document is being approved by a hospital’s legal department. Attorney-drafted forms may occasionally be appropriate for a client with an unusual health condition or specific health care wishes that can be effectively communicated only in a custom document. In addition to the primary documents for health care decisions, there are several related documents that should be considered:

Release of protected health care information under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the California Confidentiality of Medical Information Act (CMIA);
Request regarding resuscitative measures;
Anatomical gift of body or organs; and
Nomination of conservator of the person