1	Limited Conservatorships for Persons with Developmental Disabilities The Dale Law Firm 1670 Riviera Ave, suite 101 Walnut Creek, California 94596 235 Montgomery St San Francisco, California
2	"What we will cover today" What we will cover today Introduction Defining objectives Lanterman Act Role of Regional Centers IPPs What to do if your regional center is out of line The Regional Center and Making Medical Decisions Limited Conservatorships Basics Alternatives The seven powers The process Conservator Succession Cost
3	Things to Think About One of the many difficult decisions that a parent of a developmentally disabled child must make is whether or not to conserve their child when the child turns 18. You may find it hard to achieve balance between allowing your child to make choices for themselves, and authorizing someone to make decisions for them. Conserving a person is limiting their civil rights.
4	Age 18 Deeming of parents’ assets to the disabled child ends and child becomes eligible for public benefits based upon sufficient evidence of disability and the child’s low income and resources; and Legal decision making authority of the parents ends regardless of the circumstances
5	Does Every Developmentally Disabled Person Need A Limited Conservatorship? NO! Depends upon the individuals functional abilities and needs capacity to care for himself or herself as a “reasonably prudent” person. Must promote and protect the well being of the individual Must encourage maximum self-reliance and independence
6	The Lanterman Act, Regional Centers and IPPS
7	Lanterman Act and IPPs The Lanterman Act is California’s civil rights act for persons with developmental disabilities. Was instituted by families and consumers with developmental disabilities to move consumers from State Hospitals (now called Developmental Centers) into the community allow consumers to have greater control over their lives.
8	Lanterman Act and IPPs The Lanterman Act Established a Regional Center system to provide the resources that consumers and families to live in the community a system called Individual Program Plans (IPPs) to determine what services are needed by each consumer A system that is designed to empower consumers and family members.
9	Lanterman Act and IPPs 4646. (a) It is the intent of the Legislature to ensure that the individual program plan and provision of services and supports by the regional center system is centered on the individual and the family of the individual with developmental disabilities and takes into account the needs and preferences of the individual and the family, where appropriate, as well as promoting community integration, independent, productive, and normal lives, and stable and healthy environments. It is the further intent of the Legislature to ensure that the provision of services to consumers and their families be effective in meeting the goals stated in the individual program plan, reflect the preferences and choices of the consumer, and reflect the cost-effective use of public resources.
10	Lanterman Act and IPPs (b) The individual program plan is developed through a process of individualized needs determination. The individual with developmental disabilities and, where appropriate, his or her parents, legal guardian or conservator, or authorized representative, shall have the opportunity to actively participate in the development of the plan.
11	Lanterman Act and IPPs d) Individual program plans shall be prepared jointly by the planning team. Decisions concerning the consumer's goals, objectives, and services and supports that will be included in the consumer's individual program plan and purchased by the regional center or obtained from generic agencies shall be made by agreement between the regional center representative and the consumer or, where appropriate, the parents, legal guardian, conservator, or authorized representative at the program plan meeting.
12	What If Your Regional Center Not Meeting The Intent Of The Lanterman Act? The Regional Center system is your system. The Centers are governed by boards made up primarily of consumers and family members The board only knows what is presented to them
13	Regional Center Board Meetings 4660. All meetings of the board of directors of each regional center shall be scheduled, open, and public, and all persons shall be permitted to attend any meeting, except as otherwise provided in this section. Regional center board meetings shall be held in accordance with all of the following provisions: Each regional center shall provide a copy of this article to each member of the regional center governing board upon his or her assumption of board membership. As used in this article, board meetings include meetings conducted by any committee of the governing board which exercises authority delegated to it by that governing board. However, board meetings shall not be deemed to include board retreats planned solely for educational purposes. At each regional center board meeting, time shall be allowed for public input on all properly noticed agenda items prior to board action on that item. Time shall be allowed for public input on any issue not included on the agenda.
14	Lanterman Act and IPPs Example Thomas is a 51 year old man with a significant developmental disability and is a client of the Regional Center. Thomas’s mother – Georgia – has always been very involved in Thomas’ life and regularly attends all of his IPP meetings. Thomas needs assistance in significant decisions.
15	Lanterman Act and IPPs Georgia has two concerns. Thomas’s family has a history of heart disease and high blood pressure Georgia is concerned that in the event that she becomes incapacitated or dies, Thomas will not receive proper medical care. Georgia would like Thomas’s brother, Michael to oversee be Thomas’s advocate when she can no longer do so.
16	Lanterman Act and IPPs Georgia could conserve Thomas and name Michael as co-conservator Georgia could instead make sure the IPP addresses Thomas’s medical needs and have Michael begin attending IPP meetings, and have the IPP reflect Michael as a successor in IPPs especial upon Georgia's death or incapacity, or Georgia could do both options.
17	"Special Issues" Special Issues Concerning Medical Decision Making
18	Establishing Actual Incapacity The “mere diagnosis of a mental or physical disorder” is not enough to establish “unsound mind” or lack of capacity to do a certain act. Prob.C. § 811(d).
19	Capacity for Medical Treatment There is a rebuttable presumption that an individual has the capacity to give informed medical consent. Prob.C. §810(a).
20	Capacity for Medical Treatment A person has capacity to give or refuse informed consent if that person can do all of the following (Prob.C. §813(a)-(c)): (1) Respond knowingly and intelligently to queries about that medical treatment.
21	Capacity for Medical Treatment A person has capacity to give or refuse informed consent if that person can do all of the following (Prob.C. §813(a)-(c)): (2) Participate in that treatment decision by means of a rational thought process.
22	Capacity for Medical Treatment A person has capacity to give or refuse informed consent if that person can do all of the following (Prob.C. §813(a)-(c)): (3) Understand all of the following items of minimum basic medical treatment information with respect to that treatment: (a) The nature and seriousness of the illness. (b) The nature of the recommended medical treatment. c) The probable degree and duration of any benefits, risks and the consequences of lack of treatment. (d) The nature, risks, and benefits of any reasonable alternatives.
23	Regional Center Director’s Authority to Authorize Medical Treatment under the Lanterman Act The director of a regional center or the director’s designee may give consent to medical, dental, and surgical treatment of a regional center client and provide for such treatment if the developmentally disabled person has no parent, guardian, or conservator legally authorized to consent .
24	Regional Center Director’s Authority to Authorize Medical Treatment under the Lanterman Act Although the Lanterman Act does not specify or limit who might be qualified to be designated to make medical decisions, the designee is almost always a regional center staff member.
25	"Conservatorship Basics" Conservatorship Basics
26	What is a Limited Conservatorship? A limited Conservatorship is a protective judicial proceeding for persons whose developmental disability substantially impairs their ability to care for themselves or their property.
27	What is a Limited Conservatorship? Is used only as necessary to promote and protect the well-being of the limited conservatee and shall be ordered only to the extent necessitated by an individual’s proven mental and adaptive limitations.
28	What is a Limited Conservatorship? The limited conservatee is not presumed to be incompetent Retain all legal and civil rights except those the court specifically grants to the limited conservator. The limited conservator oversees the care, custody, and control of the limited conservatee, subject to certain limitations ordered by a court.
29	What is a Developmental Disability? Originates before age 18, Can be expected to continue indefinitely, Constitutes a substantial handicap, Includes mental retardation, cerebral palsy, epilepsy, and autism, Can be any handicapping conditions found to be closely related to mental retardation, Is not solely physical in nature.
30	Types of Conservatorships? Conservatorship of the Person choice of residence, access to confidential records, contracts, marriage, medical, education, social/sexual contacts
31	Types of Conservatorships? Conservatorship of the estate— manage money and other assets
32	Types of Conservatorships? General Conservatorship—all powers and responsibilities transferred to the conservator Limited Conservatorship—reserves some powers for a person with a developmental disability and transfers other powers to the conservator LPS Conservatorship—for inpatient psychiatric care and certain medications or treatments
33	Duties of a Limited Conservator? Responsible in assisting the limited conservatee to be self-reliant and independent by securing appropriate habilitation or treatment, training and education, medical and psychological services, social and vocational opportunities increasing the limited conservatee’s functional abilities in the least restrictive manner
34	"Alternatives to Conservatorship" Alternatives to Conservatorship
35	Alternatives to A Limited Conservatorship If the main objective is the management of the funds, a Special Needs Trust can often better meet those objectives Power of Attorney for Financial Matters The Power of Attorney for Health Care An authorized representative may be designated by the local Area Board, a state advocacy agency, for Regional Center IPP meetings For medical care may rely on the Regional Center
36	Durable Powers of Attorney and Advance Health Care Directives The power of attorney for health care (PAHC), formerly called the durable power of attorney for health care, appoints an agent to make health care decisions for the individual who can no longer do so. Enables the principal to express his or her wishes about life-sustaining treatment, anatomical gifts, and other health care issues. It is quick and inexpensive.
37	"The Conservatorship Process" The Conservatorship Process
38	How Is A Conservatorship Established? Requires a Petition to the Court, and a hearing, usually 45-60 days later Conservatee must attend unless a doctor certifies he or she cannot attend for medical reasons Can be filed shortly before the 18^th birthday, or any time afterwards
39	How Is A Conservatorship Established? Court investigator is appointed and will interview proposed conservatee Attorney is appointed for the proposed limited conservatee Regional Center report is required Proposed conservatee’s opinion is sought -- if objects, right to trial by jury Assessment of the needs of the person is performed
40	How Is A Conservatorship Established? How you can assist the process Bring any documentation such that assist the staff in describing the need for conservatorship Regional Center reports, IPPs, IEPs, IHP’s etc. program plan reviews Notify the conservatee’s physician that they will e asked provide documentation about the conservatee’s condition
41	The Role of the Regional Center Within 30 days after the filing of a petition, a proposed limited conservatee shall be assessed at a regional center The regional center submits a written report of its findings and recommendations Provides the court with guidance about the appropriateness of the conservatorship and the suitability of the proposed conservator, if not a natural parent of the proposed conservatee Regional Center recommendations are not binding on the court
42	Powers a Limited Conservator of the Person can Petition for? Select the residence of the limited conservatee Have access to confidential records and papers To consent or withhold consent for marriage The right of the limited conservatee to contract To give or withhold medical consent To control social and sexual contacts Decisions concerning the education of the limited conservatee
43	Powers of a Limited Conservator of the Estate? Conservator can also ask for powers to manage the assets, investments, and real estate that belong to the limited conservatee If there is need to preserve eligibility for SSI and Medi-Cal and the conservatee has assets, may set up a Special Needs Trust and ask the court to allow transfer of assets into it
44	Powers that are Restricted No commitment to locked psychiatric facility, without an LPS Conservatorship No treatment with experimental drugs No electroshock treatment No sterilization without special court permission
45	Who Can Establish a Limited Conservatorship? Any adult The spouse of the proposed conservatee A relative of the proposed conservatee Any interested public officer or employee of an interested public agency of California Any other interested person or friend of the proposed conservatee
46	Who Should be Conservator? Someone who lives nearby Someone the conservatee likes and trusts Someone with mature judgment and experience Can be parent(s), brother, sister, another relative, or a professional conservator Public Guardian is available if there is no one else
47	Co-Conservators? Can be co-conservators (more than one person at a time) Two co-conservators must make decisions by consensus More than two make decisions by majority If one of the co-conservators becomes no longer able to act, remaining conservator(s) continue without further petition or hearing
48	When to Apply May apply as soon as you see there will be a need for it, and the proposed conservatee is either over 18 or approaching his or her 18^th birthday $ considerations