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SB-1016 Limited conservatorship.(2019-2020)

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Date Published: 02/14/2020 09:00 PM
SB1016:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 1016


Introduced by Senator Wieckowski

February 14, 2020


An act to amend Sections 1471, 1801, and 1828.5 of the Probate Code, relating to conservatorship.


LEGISLATIVE COUNSEL'S DIGEST


SB 1016, as introduced, Wieckowski. Limited conservatorship.
Existing law establishes procedures for the establishment of conservatorships of the person or of the estate, or both, as specified, or a limited conservatorship of the person or of the estate, or both, of an adult with a developmental disability. In any proceeding to establish a limited conservatorship, existing law requires the court to appoint the public defender or private counsel to represent a proposed limited conservatee if that person has not retained legal counsel and does not plan to retain legal counsel.
This bill would require appointed counsel for a proposed limited conservatee to advocate for the expressed interests, as defined, of the proposed limited conservatee, and would authorize counsel to consult with any other person knowledgeable regarding the proposed limited conservatee to assist in interpreting the expressed interests of the proposed limited conservatee. The bill would restrict the appointment of a conservator of the person for a person with a developmental disability to a limited conservatorship.
Existing law requires the court, at the hearing on the petition for appointment of a limited conservator for an adult alleged to have a developmental disability, to, among other things, inquire into the nature and extent of the general intellectual functioning of the individual alleged to be developmentally disabled and ascertain their capacity to care for themselves and their property.
The bill would also require the court to inquire as to what alternatives to conservatorship have been tried and for how long, and have counsel state on the record any reasons why those alternatives are not appropriate.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1471 of the Probate Code is amended to read:

1471.
 (a) If a conservatee, proposed conservatee, or person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the interest of that person in the following proceedings under this division:
(1) A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.
(2) A proceeding to terminate the conservatorship.
(3) A proceeding to remove the conservator.
(4) A proceeding for a court order affecting the legal capacity of the conservatee.
(5) A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence.
(b) If a conservatee or proposed conservatee does not plan to retain legal counsel and has not requested the court to appoint legal counsel, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the interests of that person in any proceeding listed in subdivision (a) if, based on information contained in the court investigator’s report or obtained from any other source, the court determines that the appointment would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee or proposed conservatee.
(c) (1) In any proceeding to establish a limited conservatorship, if the proposed limited conservatee has not retained legal counsel and does not plan to retain legal counsel, the court shall immediately appoint the public defender or private counsel to represent the proposed limited conservatee. The
(2) Counsel representing the proposed limited conservatee for limited conservatorship shall advocate for the expressed interests of the proposed limited conservatee. “Expressed interests” includes the stated interests or preferences of the proposed conservatee that are expressed through augmentative and alternative communication, assistive technology, gestures, pictures, pointing, signing, speech, writing, or other means of communication. Counsel may also consult with the family of the proposed conservatee, clinicians, professionals, and others who are familiar with, and knowledgeable regarding, the proposed limited conservatee to assist in interpreting the expressed interests of the proposed limited conservatee.
(3) The proposed limited conservatee shall pay the cost for that legal service if he or she is able. able to do so. This subdivision applies irrespective of any without regard to the proposed limited conservatee’s medical or psychological inability to attend the hearing on the part of the proposed limited conservatee as allowed in Section 1825.

SEC. 2.

 Section 1801 of the Probate Code is amended to read:

1801.
 Subject to Section 1800.3:
(a) A conservator of the person may be appointed for a person who is unable to provide properly for his or her their personal needs for physical health, food, clothing, or shelter, except as provided for the person as described in subdivision (b) or (c) of Section 1828.5. A conservator of the person may be appointed for a person with a developmental disability only as provided in subdivision (d).
(b) A conservator of the estate may be appointed for a person who is substantially unable to manage his or her their own financial resources or resist fraud or undue influence, except as provided for that person as described in subdivision (b) or (c) of Section 1828.5. Substantial inability may not be proved solely by isolated incidents of negligence or improvidence.
(c) A conservator of the person and estate may be appointed for a person described in subdivisions (a) and (b).
(d) A limited conservator of the person or of the estate, or both, may be appointed for a developmentally disabled adult. an adult with a developmental disability. A limited conservatorship may be utilized only as necessary to promote and protect the well-being of the individual, shall be designed to encourage the development of maximum self-reliance and independence of the individual, and shall be ordered only to the extent necessitated by the individual’s proven mental and adaptive limitations. The conservatee of the limited conservator shall not be presumed to be incompetent and shall retain all legal and civil rights except those which by court order that, by court order, have been designated as legal disabilities and have been specifically granted to the limited conservator. The intent of the Legislature, as expressed in Section 4501 of the Welfare and Institutions Code, that developmentally disabled citizens of this state persons with developmental disabilities receive services resulting in more independent, productive, and normal lives is the underlying mandate of this division in its application to adults alleged to be developmentally disabled. to have developmental disabilities.
(e) The standard of proof for the appointment of a conservator pursuant to this section shall be clear and convincing evidence.

SEC. 3.

 Section 1828.5 of the Probate Code is amended to read:

1828.5.
 (a) At the hearing on the petition for appointment of a limited conservator for an allegedly developmentally disabled adult, an adult alleged to have a developmental disability, the court shall do each all of the following:
(1) Inquire into the nature and extent of the general intellectual functioning of the individual person alleged to be developmentally disabled. have developmental disabilities.
(2) Evaluate the extent of the impairment of his or her the person’s adaptive behavior.
(3) Ascertain his or her the person’s capacity to care for himself or herself and his or her themselves and their property.
(4) (A) Inquire as to what alternatives to conservatorship have been tried and for how long. Alternatives shall include the use of supported decisionmaking. Counsel shall state on the record any reasons why the alternatives are not appropriate.
(B) For purposes of this paragraph, “supported decisionmaking” means a process of supporting and accommodating the person with a developmental disability to enable the person to make and communicate life decisions, including, but not limited to, decisions about where to live, what services, supports, and medical care to receive, whom to live with, and where to work, without impeding the self-determination of the person.

(4)

(5) Inquire into the qualifications, abilities, and capabilities of the person seeking appointment as limited conservator.

(5)

(6) If a report by the regional center, in accordance with Section 1827.5, has not been filed in court because the proposed limited conservatee withheld his or her consent to assessment by the regional center, the court shall determine the reason for withholding such consent. consent was withheld.
(b) If the court finds that the proposed limited conservatee possesses the capacity to care for himself or herself and to manage his or her their property as a reasonably prudent person, the court shall dismiss the petition for appointment of a limited conservator.
(c) If the court finds that the proposed limited conservatee lacks the capacity to perform some, but not all, of the tasks necessary to provide properly for his or her their own personal needs for physical health, food, clothing, or shelter, or to manage his or her their own financial resources, the court shall appoint a limited conservator for the person or the estate or the person and the estate.
(d) If the court finds that the proposed limited conservatee lacks the capacity to perform all of the tasks necessary to provide properly for his or her their own personal needs for physical health, food, clothing, or shelter, or to manage his or her their own financial resources, the court shall appoint either a conservator or a limited conservator for the person or the estate, or the person and the estate.
(e) The court shall define the powers and duties of the limited conservator so as to permit the developmentally disabled adult to care for himself or herself adult with a developmental disability to provide self-care or to manage his or her their financial resources commensurate with his or her their ability to do so.
(f) Prior to the appointment of a limited conservator for the person or estate or person and estate of a developmentally disabled adult, an adult with a developmental disability, the court shall inform the proposed limited conservatee of the nature and purpose of the limited conservatorship proceeding, that the appointment of a limited conservator for his or her their person or estate or person and estate will result in the transfer of certain rights set forth in the petition and the effect of such that transfer, the identity of the person who has been nominated as his or her the limited conservator, that he or she the person has a right to oppose such the proceeding, and that he or she the person has a right to have the matter tried by jury. After communicating such that information to the person and prior to the appointment of a limited conservator, the court shall consult the person to determine his or her their opinion concerning the appointment.