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SB-1016 Limited conservatorship.(2019-2020)

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Date Published: 04/06/2020 09:00 PM
SB1016:v98#DOCUMENT

Amended  IN  Senate  April 06, 2020

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 amended, 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 whether less restrictive alternatives to conservatorship have been tried and considered or attempted, and if attempted, for how long, and have counsel petitioner state on the record any reasons why those less restrictive alternatives have not been considered or attempted or 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.
(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 able to do so. This subdivision applies without regard to the proposed limited conservatee’s medical or psychological inability to attend the hearing 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 their personal needs for physical health, food, clothing, or shelter, except as provided 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). (d) of Section 1828.5.
(b) A conservator of the estate may be appointed for a person who is substantially unable to manage their own financial resources or resist fraud or undue influence, except as provided in subdivision (b) or (c) of Section 1828.5. A conservator of the estate may be appointed for a person with a developmental disability only as provided in subdivision (d) 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 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 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 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 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 adult alleged to have a developmental disability, the court shall do all of the following:
(1) Inquire into the nature and extent of the general intellectual functioning of the person alleged to have developmental disabilities.
(2) Evaluate the extent of the impairment of the person’s adaptive behavior.
(3) Ascertain the person’s capacity to care for themselves and their property.
(4) (A) Inquire as to what whether less restrictive alternatives to conservatorship have been tried and considered or attempted and, if attempted, for how long. Alternatives shall include Less restrictive alternatives shall include, but not be limited to, the use of supported decisionmaking. Counsel decisionmaking or the appointment of an authorized representative. Petitioner shall state on the record any reasons why the alternatives less restrictive alternatives have not been considered or attempted or 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.
(5) Inquire into the qualifications, abilities, and capabilities of the person seeking appointment as limited conservator.
(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 consent to assessment by the regional center, the court shall determine the reason consent was withheld.
(b) If the court finds that the proposed limited conservatee possesses the capacity to manage 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 their own personal needs for physical health, food, clothing, or shelter, or to manage 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 their own personal needs for physical health, food, clothing, or shelter, or to manage 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 adult with a developmental disability to provide self-care or to manage their financial resources commensurate with their ability to do so.
(f) Prior to the appointment of a limited conservator for the person or estate or person and estate of 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 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 that transfer, the identity of the person who has been nominated as the limited conservator, that the person has a right to oppose the proceeding, and that the person has a right to have the matter tried by jury. After communicating that information to the person and prior to the appointment of a limited conservator, the court shall consult the person to determine their opinion concerning the appointment.