Conservatorship Dementia Medical Treatment & Placement

California courts are or should be 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.

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.

California 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.

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.

The conservatee is entitled to be represented by an attorney, and is entitled to have the issues set for an evidentiary hearing (i.e., a trial) 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 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.

Dave Tate, Esq. (San Francisco)

The Conservatorship of Maria B. is an important new conservatorship case on several different issues. <em><strong>Conservatorship of the Person and Estate of Maria B., from the California Court of Appeal, Fourth Appellate District, Case Number G047889, July 31, 2013</strong></em>.

Maria is a developmentally disabled adult. Maria’s doctors recommended a hysterectomy and oophorectomy to treat Maria’s condition. Maria’s mother is the limited conservator who filed a petition with the court for an order authorizing the surgery. The court in part discussed different burdens of proof and which one applied in this circumstance. In pertinent part the court held that since the surgery would impact a fundamental right, i.e., Maria’s ability to bear children, on her petition for court authorization to have the surgery performed, as conservator Maria’s mother had to satisfy a clear and convincing burden of proof.

The court held that the default standard is the preponderance of the evidence, but that courts nonetheless apply the heightened clear and convincing evidence standard in a variety of cases when important or fundamental rights are at stake.

The court concluded that the clear and convincing evidence standard was required because the surgery would have a substantial and irreversible impact on Maria’s fundamental opportunity to bear children.

Specifically the court held that the conservator of Maria must present clear and convincing evidence to show that the surgery is medically necessary under section 2357 because the medical treatment impacts a fundamental right.

The court clarified that the clear and convincing standard is the exception rather than the norm under section 2357 but left the determination of the appropriate burden to be made on a case by case basis.

You might also be aware that the standard burden of proof for the establishment of a conservatorship also is clear and convincing evidence and a proposed conservatee has the right to have a petition for conservatorship determined by a jury.

The court in Maria B. discussed different burdens of proof:

The preponderance of the evidence burden is essentially more likely than not.

The beyond a reasonable doubt burden is designed to exclude as nearly as possible the likelihood of an erroneous judgment and imposes almost the entire risk of error upon the party bearing the burden of proof.

The clear and convincing burden is an intermediate standard that increases the burden on the party seeking relief requiring a finding of 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 court did not describe or attempt to list the universe of fundamental rights that could arise in conservatorship cases. Those issues will undoubtedly arise in other cases. It was also not an issue in the case whether or not Maria was entitled to a jury trial on the petition for authorization to have the surgery performed which would have a substantial and irreversible impact on Maria’s fundamental opportunity or right to bear children.

Issues and holdings in Maria B. clearly will be important in other conservatorship and care-related cases.

Dave Tate, Esq. (San Francisco)

Here is another interesting article from Norman, What is your risk appetite? | Norman Marks.

I acknowledge that terms such as risk appetite and risk tolerance are or are becoming standard in risk or uncertainty management. But I have also previously written that I have difficulties with those terms as follows: “One additional comment – about terminology issues – I can generally say that in certain circumstances I have issues with some of the risk and uncertainty terms that appear in some of the resources, depending on how those terms are used or described including in some circumstances, for example, risk appetite, risk tolerance, assessment, and similar terms. My issue relates to situations where the terminology or its use might imply that a specific level or quantity of risk is acceptable particularly when the possible resulting impact or harm could be significant. Even if developed through legal counsel, I would certainly assume and act as if risk management identification, evaluation and processes are discoverable in litigation. Additional discussion and consideration is needed.”

You can also view: Risk & Uncertainty Management Form – Processes & Oversight, Risk & Uncertainty Management Form – Processes & Oversight Dave Tate Esq 03282013

Dave Tate, Esq.

A lot is going on, but no time today to blog. I’ll be working on a motion for summary judgment (statute of limitations and causation arguments), deposition preparation (deposition with an interpreter, many issues of pre-existing and post accident injuries), and evaluation of insurer subrogation rights in a significant environmental case.

Also, I don’t care if Senator Cruz wants to talk for 24 or more hours. That’s his right. More legislators should visibly speak-up and not as the usual work only on party lines or behind the scenes. He will either appear to be a fool or help himself, accomplish something or not, or be a non-event in history. He has had a lot of pressure to not talk including from his own party. I respect his individualism (i.e., standing up and stating his opinion or vote), for whatever reason. Other decision makers, legislators, board directors, etc., should take note.

Dave Tate

The following are two interesting/worthwhile discussions about the HIPAA final rule effective today, September 23, 2013, and some of what you should do about it:

1. Click here re 4 steps for business associates to comply; and

2. Click here for additional compliance discussion.

Lots of work for everyone.

Dave Tate, Esq. (San Francisco)

My board and board committee self-evaluations video, .

I have previously written 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;

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;

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.

* * * * *

McClintock v. West (California Court of Appeal, Fourth Appellate District, Case No. G046483, September 9, 2013)

I’m not going to discuss the facts and holding in McClintock v. West in detail; however, the case and the citations in the case could be important to court appointed or approved fiduciaries (guardian ad litems, conservators, and possibly trustees and attorneys) if they are sued for breach of duty or malpractice. McClintock v. West holds that a guardian ad litem appointed by the court (and subject to court review) enjoys the advantages and defenses of quasi-judicial immunity and the litigation privilege. McClintock v. West also discusses in dicta, with case citations, that the same or similar protections may also be enjoyed by other court appointed or approved fiduciaries including conservators and possibly trustees and attorneys. McClintock v. West is a good defense case to keep in mind.

Dave Tate, Esq. (San Francisco)

I was watching Ben Bernanke, Federal Reserve Chairman, on C-Span this morning – a video of his last Wednesday economy & monetary policy talk. Several thoughts that came to mind:

1. As he was reading his entire speech, just hand it out and skip the oral presentation. Give a summary, tell people where the entire speech can be found on the internet, and go to the questions which are more interesting.

2. Should also provide the individual votes or opinions of the individual Federal Reserve members, not just the majority view.

3. The information is too broad and lacks specifics. Example, don’t say unemployment is doing better than he expected without discussing specifics including full-time v. part-time, less than 30 hours per week, less than 25 hours per week, etc., pay and benefits.

4. Should also provide assumptions, estimates and the background information upon which the opinions are based.

5. Why does he only give opinions for 2013, 2014 and 2016?

6. Overall, what does he think it all means – talking plain English? Doesn’t the US public deserve better information? Transparency? He keeps saying he cannot be more specific about this and that – really?

7. As I am a lawyer, I would like to see a similar discussion about the legal market – so that law students and current lawyers can perhaps better plan their careers. What is the market for legal services in different practice areas expected to be in 1, 2, 3, 5, 10, more years by geographic region?

8. Same for healthcare, for example – as healthcare and changes to healthcare are so much in the news, and healthcare is such a significant part of the economy, and healthcare is so expensive for individuals and families and their budgets and long-term planning, and since the government, both federal and state, is so involved in healthcare, mandates and penalties or punishments, I would like and would expect to see similar discussions about healthcare now, and expectations in 1, 2, 3, 5, 10, and more years.

Have a great Sunday.
Dave Tate

An interesting blog post by Norman Marks, Board governance depends on where you sit.

Dave Tate, Esq.