Matthew D. Kanin

Of Counsel Greenspoon Marder LLP

MCLE

Recent events have drawn attention to California’s conservatorship law with an intensity not seen in many years. The state’s conservatorship statutes give both government entities (the Public Guardian) and private actors (relatives and friends) the power to petition a civil court to deprive another individual of rights and freedoms. When is this power appropriately used, and what procedural safeguards exist to ensure it is not misused?

The objective of this article and self-study test is to review the rules applicable to appointment of conservators and the procedural safeguards in place to establish due process for the accused subject (the “proposed conservatee”) as well as some of the common conflicts that may arise within conservatorship cases.

Does a person have to be incompetent to be the subject of a conservatorship?

Prior to 1957, adult guardianship was the sole proceeding available under California law to appoint a surrogate decision maker. (See Board of Regents v. Davis, 14 Cal.3d 33 (1975) [explaining the legislative history of the conservatorship statute].) Adult guardianship was predicated upon a finding that the subject was incompetent. (Id. p. 38). However, lawyers and lawmakers came to realize that a finding of incompetence had two undesirable consequences. First, it prevented protection from being given to people who had some form of incapacity, but one that was less than full incompetence. Second, it saddled those who were adjudicated as incompetent (or who did not object) with a sweeping deprivation of rights, and an extreme stigma. (Ibid.) In 1957, the conservatorship was introduced as an alternative. California Supreme Court Justice Matthew Tobriner described the conservatorship as a “modern legal mechanism conceived to meet a realistic human desire to avoid the stigma of incompetency,” and the preferred protective proceeding for adults. (Id. at p. 44.) By 1993, nearly all remaining references to adult guardianship had been removed from the codes. (1992 Cal. AB 2650.)

Current conservatorship law neither implies nor requires a finding that a person is wholly incompetent. Eligibility for conservatorship of the person, or estate, is based upon a finding of incapacity to perform specific tasks or make specific decisions. (Probate Code, §§ 1872, 1880, 1881(d)–(e), 1890(c) (all further statutory references are to this Code unless otherwise specified.) Section 1801(a)–(c) uses the phrase “substantial inability” to provide for personal needs, manage affairs, or resist fraud and undue influence, but when read together with sections 1872 and 1880, et seq., “substantial inability” is essentially synonymous with the various kinds of functional incapacity spelled out in the code.

What standards are applied to determine substantial inability?

The legislature enacted the Due Process in Competence Determinations Act (the “DPCDA”) 1995 Cal. SB 730, Ch. 842, Amended 1998 Cal. AB 2801, Ch. 581, codified as Part 17 of Division 2 of the Code (§§ 810–813) to provide substantive guidance. This law begins by providing for a rebuttable presumption that all persons have capacity, and that a person who has a mental or physical disorder may still be capable of contracting, conveying property, marrying, making medical decisions, donative transfers, and “other actions.” (§810(a)–(b)). It also provides that judicial determination of incapacity should be based upon evidence of a deficit in mental function, rather than a diagnosis of a disorder alone. (§ 810(c).)

When a court is deciding whether to order a conservatorship, “[a] determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract . . . shall be supported by evidence of a deficit in at least one of the following mental functions . . ., and evidence of a correlation between the deficit or deficits and the decision or acts in question. . . .” Four categories of assessments are listed: (1) Alertness and attention; (2) Information processing; (3) Thought processes; and (4) Ability to modulate mood and affect. (§ 811(a)(1)–(4).)

Each of these four categories are broken down into a number of assessments. Alertness and attention is assessed by: (a) level of consciousness; (b) orientation to time, place, person, and situation; and (c) ability to attend and concentrate. (§ 811(a)(1).) Information processing is assessed by: (a) short- and long-term memory, including immediate recall; (b) ability to understand or communicate with others, either verbally or otherwise; (c) recognition of familiar objects and familiar persons; (d) ability to understand and appreciate quantities; (e) ability to reason using abstract concepts; (f) ability to plan, organize, and carry out actions in one’s own rational self-interest; and (g) ability to reason logically. (§ 811(a)(2).)

Deficits in thought processes may be demonstrated by the presence of the following: (a) severely disorganized thinking; (b) hallucinations; (c) delusions; and (d) uncontrollable, repetitive, or intrusive thoughts. (§ 811(a)(3).) Finally, deficits in the ability to modulate mood and affect ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual’s circumstances. (§ 811(a)(4).)

The Judicial Council has adopted form GC–335, the Capacity Declaration, to streamline presentation of these assessments; its filing is mandatory when a petitioner seeks to have the proposed conservatee excused from attending the hearing that is conducted to determine if a conservatorship should be ordered (§ 1825(b)), or to support allegations of incapacity to make healthcare decisions (§§ 1881, 1910, 2356.5). It is difficult for a conservatorship case to proceed without the filing of a Capacity Declaration.

Importantly, a deficit in the mental functions listed above may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, 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. (§ 811(b).) The court may take into consideration the frequency, severity, and duration of periods of impairment. (§ 811(c).) The mere diagnosis of a mental or physical disorder is not sufficient, in and of itself, to support a determination that a person is of unsound mind or lacks the capacity to do a certain act. (§ 811(d).) Moreover, “[s]ubstantial inability may not be proved solely by isolated incidents of negligence or improvidence.” (§ 1801(b).)

Taken together with the other applicable provisions of law, in any conservatorship case to which the proposed conservatee does not consent, the petitioner (the party seeking the conservatorship) must show more than just a diagnosis, or isolated acts. The petitioner must demonstrate by clear and convincing evidence (§ 1801(e)) that conservatorship is the least restrictive means (§ 1800.3(b)) of preventing harm to the personal or financial interests of the proposed conservatee arising out of the proposed conservatee’s incapacity.

What are the rights of a person who faces a conservatorship proceeding?

The proposed conservatee has the right to: (1) written notice of the proceedings; (2) appear in all court proceedings; (3) object to the conservatorship; and (4) have a jury decide whether there will be a conservatorship. (§ 1823(b).) In addition, the proposed conservatee has a right to counsel of his or her choice, or by appointment of the court. (§§ 1471, 1823(b)(6).) When the petitioner is anyone other than the proposed conservatee, the conservatee must be served with, among other things, a written citation notifying the conservatee of these and other important rights, and the consequences of the petition. (§ 1823(a).) The Judicial Council has adopted form GC–320 for this purpose.

When and how do courts appoint counsel for a proposed conservatee?

The Code provides that a court “shall” appoint either the public defender, or private counsel, to represent a proposed conservatee who is unable to retain counsel, or who has not and does not plan to retain counsel, prior to appointment of a conservatorship. (§ 1471(a)(1).) This applies equally to limited conservatorships. (§ 1471(c).) It is also mandated for the court to appoint legal counsel for a conservatee on a proceeding to transfer, terminate, remove the conservator, any proceeding affecting the legal capacity of the conservatee, and any petition by a temporary conservator to change residence. (§ 1471 (a).) In addition, though not mandatory, the court may appoint counsel at any time after the initial appointment, if it finds that it would be helpful, and the conservatee does not otherwise have counsel. (§ 1470.) The California Rules of Court set forth the minimum training and experience requirements for attorney eligibility to be appointed under sections 1470–1471. (Cal. Rules of Court, rule 7.1101.) Appointed counsel may be compensated from the assets of the conservatee or proposed conservatee, if able, but if not, the Court may order compensation by the county in which the case is being heard. (§§ 1470(c)(1), 1472.)

Because the language of section 1471(a)(1) is open-ended as to procedure, there is considerable room for variation in its implementation. Trial courts could appoint counsel immediately upon filing of the case or wait until the hearing; they could appoint the public defender, or appoint private counsel. Because of the room for variation, some courts have adopted local rules, or internal procedures, while others are silent. Also, while appointment of counsel is mandated by state law, it should not be assumed that it is required by the U.S. Constitution. (Conservatorship of Ben C., 40 Cal. 4th 529 (2007) [discussing Kansas v. Hendricks, 527 U.S. 346 (1997), and the imperfect analogy between conservatorship and criminal proceedings].)

What are the ethical duties of court appointed counsel, and how do they differ from those of other attorneys?

The ethical duties of an attorney do not vary based upon whether the attorney was retained by the conservatee or proposed conservatee, or appointed by the court. (See Conservatorship of John L., 48 Cal.4th 131 (2010) 151 [“like all lawyers,” appointed counsel have a duty to “vigorously advocate”].) However, the statutes and rules governing appointment of counsel may place counsel in unusual situations, such as representing a person who is too incapacitated, or perhaps even entirely unconscious or uncommunicative, to retain counsel, consistent with the California Rules of Professional Conduct. (Rudolph & Hughes, “A Lawyer is a Lawyer is a Lawyer”, Cal. Trusts & Estates Quarterly, Vol. 25, No. 1 (Cal. Lawyers Ass’n 2019), pp. 28, 37–38.) Additionally, a combination of tradition and practice invite appointed counsel to stray into the role of a Guardian Ad Litem (“GAL”) or an investigating witness, rather than an advocate. (Id. at p. 29, 36; see also id. at p. 32 [A GAL is an agent who steps into the shoes of an incompetent party, and exercises his or her independent judgment, subject to the oversight of the Court itself, as to the best interests of that party].) GAL appointment is governed by section 1003 and in civil cases, Code of Civil Procedure section 372, et seq.

Effective January 1, 2022, the Code has been amended in an attempt to clarify the role of appointed counsel, by stating that “[t]he role of legal counsel . . . is that of a zealous, independent advocate representing the wishes of their client, consistent with . . . [Business and Professions Code section 6068] and the California Rules of Professional Conduct.” (§ 1471(e).)

However, many courts will continue to appoint attorneys as counsel, rather than expressly appointing them as GALs, for unconscious or wholly uncommunicative conservatees and proposed conservatees, which is not contemplated by the California Rules of Professional Conduct. (Rudolph & Hughes, at p. 28.) As long as this continues to be the case, it appears that court appointments will put attorneys in the position of being quasi-GALs.

May a proposed conservatee choose his or her own attorney and/or conservator?

The 2021 amendment to section 1471, codifying the proposed conservatee’s right to counsel of his or her choosing, has now gone into effect. Under current law, “[i]f a conservatee, proposed conservatee, or person alleged to lack legal capacity expresses a preference for a particular attorney to represent them, the court shall allow representation by the preferred attorney, even if the attorney is not on the court’s list of a court-appointed attorneys.” (§ 1471(d).) Under prior law, there was considerable variation, with some courts suggesting that they were at liberty to disregard the proposed conservatee’s choice of their own counsel. (See Wilson v. Tedesco (In re Estate of Tedesco), Cal. App. Unpub. LEXIS 6244, 2019 WL 4508965 (2019).)

Even with the amendments, proposed conservatees may still have difficulty finding private counsel to retain, because the California Rules of Professional Conduct do not make any provision for representing a client with diminished capacity. (See State Bar of California, Standing Committee on Professional Responsibility and Conduct of the State Bar (COPRAC) Formal Opinion 2021-207, https://www.calbar.ca.gov/Portals/0/documents/publicComment/2021/COPRAC-Formal-Opinion-No.2021-207.pdf [discussing the Supreme Court’s rejection of ABA M.R. 1.14, a proposed rule that was intended to reconcile the approach of an ABA Model Rule on the topic with California law, and providing guidance on attorney duties when representing a client with diminished capacity].) Also, section 1471(d) does not deprive the court of its supervisory role, stating that “an attorney who cannot provide zealous advocacy or who has any conflict of interest with respect to the representation of the conservatee, proposed conservatee, or person alleged to lack legal capacity shall be disqualified.”

Section 1810 provides that: “If the proposed conservatee has sufficient capacity at the time to form an intelligent preference, the proposed conservatee may nominate a conservator in the petition or in a writing signed either before or after the petition is filed. The court shall appoint the nominee as conservator unless the court finds that the appointment of the nominee is not in the best interests of the proposed conservatee.” When the only dispute is not whether there will be a conservator, but who will be the conservator, or what powers the conservator will have, there is no right to trial by jury. (§§ 1452, 1810–1813.1; see also Law Rev. Comm’n Comment to § 1827 (1990).)