Does It Always Have to Be Conservatorship? Not Anymore!
In California, conservatorship is generally required when an adult cannot manage their personal or financial affairs due to incapacity, and no less restrictive alternatives can meet their needs. The Probate Code Section 1801 outlines the circumstances under which a conservatorship may be necessary. Specifically, it states that a conservator may be appointed for a person who is unable to provide properly for their personal needs for physical health, food, clothing, or shelter, or for a person who is substantially unable to manage their own financial resources or resist fraud or undue influence.
Supported Decision Making – With a Little Help from My Friends
The #FreeBritney campaign brought shortcomings of California’s conservatorship law into sharp focus resulting in Assembly Bill No. 1663. The bill took effect January 1, 2023. In addition to reforming the current conservatorship law, it establishes a supported decision making process, and a process for entering into a supported decision making agreement.
Supported Decision Making: People You Trust Help You Decide
Supported decision making is not new. Most people consult others before they make major decisions. The key concept here is that the final decision is theirs, a cornerstone of personal autonomy. Supported decision making can be formalized, and this is what the new law is about.
Conservatorship and Powers of Attorney Are Substituted Decision Making
In surrogate decision making others have the final say whether they consult with the person the decision is being made for or not. A subtype of surrogate decision making is called substituted decision making. Here the external decision makers try to understand what the disabled person would want for herself. This is, of course, fraught with problems. For a very illuminating discussion of the topic area see this bioethics paper: Supported Decision Making With People at the Margins of Autonomy.
Our legal system has created solutions for substituted decision making. These solutions range from court appointed guardianship or conservatorship to private agreements, such as financial powers of attorney and healthcare powers of attorney.
It has long been understood that these solutions may, in many cases, be too restrictive. Indeed, many states have introduced supported decision making as an alternative. Texas was the first state to pass a Supported Decision Making (SDM) Act.
California Supported Decision Making Law – The Main Provisions
· A petition for conservatorship needs to include detailed information why alternatives to conservatorship, including SDM, have not worked out or are unsuitable
· A conservatorship alternatives program (CAP Program) located within the Superior Courts will be established
· ‘Adult with disability’ is expansively defined and includes those with Alzheimer’s disease or any ‘chronic illness or condition’.
· ‘Supported decision making’ means an individualized process of supporting and accommodating an adult with a disability to enable them to make life decisions without impeding their self-determination.
· ‘Supported decision making agreement’ is a voluntary, written agreement, written in plain language accessible to the adult and may be revoked orally or in writing at any time by the supporters or the supported.
· The SDM agreement does not give the supporters a license for undue influence or other abuse: “A supporter is bound by all existing obligations and prohibitions otherwise applicable by law that protect adults with disabilities and the elderly from fraud, abuse, neglect, coercion, or mistreatment.” An SDM agreement also does not limit a supporter’s civil or criminal liability for prohibited conduct against the adult with a disability.
How Would the SDM Agreement be Used in Practice?
The medical informed consent process may be a representative example. Previously, a health care provider who discovered that a patient had marginal capacity to consent to an intervention, would look to a surrogate to make that decision for the patient. An SDM agreement would instead allow the provider to discuss the intervention in sufficient detail with the patient and her supporters and accept the patient’s final decision as ethically and legally binding.
SDM agreements would also be relevant for other major life decisions and would, at least in theory, allow parties to a contract to have a degree of reassurance that the agreement cannot be voided because it was executed by a person who lacked capacity.
How Should a Supported Decision-Making Article Be Drafted?
The law establishing SDM and SDM documents has only been in effect in California since January 2023 and experience has been limited. In other words, attorneys in California do not have much help when drafting these documents. However, consider the following advice:
1. Use Plain Language: Ensure the agreement is written in simple, clear language that the person with a disability can easily understand.
2. Specify Support Areas: Clearly list the areas where support is needed and the specific types of support that will be provided.
3. Commitments of Supporters: Ensure that supporters commit to acting in good faith, without self-interest, and avoiding conflicts of interest.
4. Inform of Rights: Include information about the individual’s rights and protections, especially concerning potential abuse or exploitation.
5. Witnesses or Notary: Have the agreement signed in the presence of either two impartial witnesses or a notary public to verify that it is entered into voluntarily.
6. Regular Reviews: Plan to review and update the agreement regularly, ideally every two years, to ensure it remains effective and relevant.
7. Communication and Understanding: Encourage supporters to help the individual obtain and understand relevant information, communicate their decisions, and ensure their preferences are respected.
Ellen Cookman Esq. has put together a helpful collection of documents, amongst others, examples of SDM documents from other states: Supported Decision Making: An Alternative to Limited Conservatorship [Direct Link] [PermaLink].
Addendum: Main reforms regarding existing conservatorship laws
These are reform provisions in the new law that address conservatorship issues rather than supported decision making.
· New is that when choosing among equally qualified conservators the conservatee’s, i.e., the disabled person’s preference, and the prior conservator’s preference should prevail
· On a procedural side: Regional centers can no longer act independently as a conservator, but may be designated by the Director of Developmental Services
· As previously mentioned, alternatives to conservatorship need to have been explored
· Conservatees will be informed about the rights of the conservator and the rights they retain (e.g., in case of limited conservatorship) when conservatorship is established and annually thereafter
· The court will appoint an attorney for conservatees who communicate to the court that they wish to terminate conservatorship as long as there has been no prior hearing in the last 12 months, and the court believes that there is good cause for such a hearing.
· The bill expands the reporting requirements of court investigators
· A CAP (Conservatorship Alternatives Program) will be established once the legislature has appropriated funds
· The law also requires the Director of Developmental Services and the Judicial Council to develop guidelines.
Many changes to current procedural rules need to be made, new forms developed, the educational programs established, and so forth. The Director of Developmental Services and the Judicial Council will be leading this effort involving many stakeholders. Local court rules need to be updated, new hiring may be required, staff retrained, etc. Expect the implementation of AB 1663 to be rocky.
Further Reading
K. Gottlieb, Esq. Assembly Bill 1663 “Protective Proceedings”: Less-Restrictive Alternatives to Conservatorship. Trusts & Estates Quarterly, Vol 29, Issue 1
