Proposed Jury Instruction – Probate Conservatorship

In my September 8, 2013, blog post I wrote that there are no California judicial council jury instructions for standard Probate Code conservatorships, which I find somewhat amazing considering the issues and freedoms that are involved in conservatorship actions. So . . . based on statutory and case law . . . below is one attempt at a proposed jury instruction on a petition for conservatorship (note, the following proposed jury instruction only is on the issue whether the petition for conservatorship should or should not be granted and is not for an LPS conservatorship – there are also several other issues that would need to be evaluated and determined if the conservatorship is in fact granted, and in all cases the burden of proof and jury trial possibilities should be evaluated on a case by case and issue by issue basis).

Dave Tate, Esq. (San Francisco)

Proposed Jury Instruction – Probate Conservatorship

There exists a rebuttable presumption affecting the burden of proof that all people including [proposed conservatee] have the capacity to make decisions and to be responsible for their acts and decisions.

The fact that [person who filed the petition for conservatorship] has filed a petition claiming that [proposed conservatee] should be conserved is not evidence that this claim is true.

Clear and convincing evidence is evidence of such high probability, based on evidence so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.

The petition of [person who filed the petition for conservatorship] for the conservatorship of the person/estate of [proposed conservatee] must be denied unless [person who filed the petition for conservatorship] proves each of the following by clear and convincing evidence:

1. That [proposed conservatee] has a deficit in mental function as established by the evidence of the actions or inactions of [proposed conservatee] not based on a mere diagnosis of a mental or physical disorder;

2. That the evidence of the deficit in mental function is more than isolated incidents of negligence or improvidence;

3. That the deficit in mental function significantly impairs [proposed conservatee’s] ability to understand and appreciate the consequences of his/her actions and make decisions;

4. That as a direct result and cause of the deficit in mental function [proposed conservatee] is substantially unable to provide properly for his/her personal needs for physical health, food, clothing, or shelter [for conservatorship of the person];

5. That as a direct result and cause of the deficit in mental function [proposed conservatee] is substantially unable to manage his/her own financial resources or resist fraud or undue influence [for conservatorship of the estate];

6. That the granting of the conservatorship is the least restrictive alternative means available for the protection of the [proposed conservatee]; and

7. There is no means of third party assistance that is available as an alternative to the conservatorship.

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