Conservatorship Dementia Medical Treatment & Placement in California
California courts are more closely scrutinizing conservatorship requests for authority to administer dementia medications, and to place a conservatee in a secured or locked facility. The Probate Code contains specific pleading and evidentiary requirements when these issues are present. Although the specific requirements add complexity to conservatorship proceedings, the provisions are designed to protect the conservatee’s constitutional and personal rights. In some cases these provisions can present the Judge with a “tough call” scenario.
As with all of my blog posts, this post does not provide legal or other professional advice, is only a summary of a complicated topic area, and cannot be relied upon for your situation. You need to separately obtain legal or professional advice for your situation.
In summary, California Probate Code §2356.5 provides that the court can grant authority to place a conservatee in a secured parameter residential care facility if the court finds, by clear and convincing evidence, all of the following:
-The conservatee has dementia;
-The conservatee lacks the capacity to give informed consent to placement;
-The conservatee needs or would benefit from a restricted or secure environment as demonstrated by evidence presented by a physician or psychologist; and
-The proposed placement in a locked facility is the least restrictive placement appropriate.
Probate Code §2356.5 further provides that the court can grant authority for the administration of medications for the care and treatment of dementia if the court finds, by clear and convincing evidence, all of the following:
-The conservatee has dementia;
-The conservatee lacks the capacity to give informed consent to the administration of medications appropriate to the care of dementia; and
-The conservatee needs or would benefit from that medication as demonstrated by evidence presented by a physician or psychologist.
Section 2356.5 further provides that the petition shall be supported by a sufficient declaration by an appropriate licensed physician or psychologist, and that the provisions of §2357, which is discussed below, shall govern the petition for authority to act under §2356.5. In other words, pursuant to statute, in some circumstances the court is authorized to determine the petition and the issues presented based on hearsay affidavit or declaration evidence by a licensed physician or psychologist, without cross-examination. Whether or not such a provision should be lawful is a topic for other discussions – the fact is that the statute provides as it does. Also consider whether personal attendance of the physician or psychologist at trial is required if there is an objection to his or her declaration or affidavit, or if the physician or psychologist is subpoenaed for trial, or simply if an evidentiary trial is requested. See also my blog post below about K. G. v. Meredith, a 2012 California Court of Appeal LPS conservatorship decision mandating requirements for serving notice and supporting papers (i.e., the notice, the petition and declarations or affidavits).
California Probate Code §2357 provides in pertinent part that with respect to medical treatment issues, the petition shall state or set forth by medical affidavit all of the following so far as known to the petitioner at the time the petition is filed:
-The nature of the medical condition which requires treatment;
-The recommended course of medical treatment which is considered to be medically appropriate;
-The threat to the health of the conservatee if authorization to the consent of the recommended course of treatment is delayed or denied by the court;
-The predictable or probable outcome of the recommended course of treatment;
-The medically available alternatives, if any, to the course of treatment recommended; and
-Efforts made to obtain an informed consent from the conservatee.
Pursuant to statute, the conservatee is entitled to be represented by an attorney, and is entitled to have the issues set for an evidentiary hearing unless the attorney for the conservatee decides to stipulate that there remains no issue or fact to be determined, and that the matter may be submitted to the court upon proper and sufficient medical declarations. In other words, in cases where the issues are not clear, it may very well be appropriate to have the evidence, including the testimony of the physician or psychologist presented in court, with the opportunity for cross-examination.
We are seeing more cases where courts are rightfully requiring added careful analysis of the issues and the evidence, and conservators are expected to provide clear and convincing evidence, meeting statutory requirements, that dementia medications and secured parameter facilities are necessary and in the best interests of the conservatee. See also my recent blog posts about In re Gregory holding that a mother of an adult conservatee lacked standing to appeal that the decisions of the trial court violated her adult son’s rights because violation of her son’s rights did not constitute injuries to the mother herself – be careful in conservatorship cases to consider possible appellate issues and standing questions at both the trial court and appellate stages.
Dave Tate, Esq. (San Francisco)
Contact me if you need assistance with a court case or proceeding, a dispute, or a contentious administration.