Bill Text: CA AB1663 | 2021-2022 | Regular Session | Chaptered

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Bill Title: Protective proceedings.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2022-09-30 - Chaptered by Secretary of State - Chapter 894, Statutes of 2022. [AB1663 Detail]

Download: California-2021-AB1663-Chaptered.html

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Assembly Bill No. 1663

CHAPTER 894

An act to amend Sections 416.17 and 416.19 of the Health and Safety Code, to amend Sections 1456, 1800, 1800.3, 1812, 1821, 1835, 1850, 1860.5, 1863, and 2113 of, and to add Sections 1835.5, 1836, and 1861.5 to, the Probate Code, and to add Division 11.5 (commencing with Section 21000) to the Welfare and Institutions Code, relating to protective proceedings.

[ Approved by Governor  September 30, 2022. Filed with Secretary of State  September 30, 2022. ]

LEGISLATIVE COUNSEL'S DIGEST

AB 1663, Maienschein. Protective proceedings.

Existing law, the Guardianship-Conservatorship Law, generally establishes the standards and procedures for the appointment of, and termination of an appointment for, a guardian or conservator of a person, an estate, or both. Under existing law, a court may appoint the Director of Developmental Services as guardian or conservator of the person and estate, or person or estate, of a developmentally disabled person, in which case a specified order of preferences for deciding between equally qualified prospective conservators does not apply. Existing law authorizes the director to have these conservatorship duties performed through a regional center, or an agency or individual designated by the regional center, as specified.

This bill would revise various procedures in the conservatorship process. Among other provisions, the bill would provide that, when equally qualified as other potential conservators, the conservatee’s preference and the prior conservator’s preference, to a prescribed extent, should prevail. For petitions filed after January 1, 2023, the bill would prohibit a regional center from acting as a conservator but would authorize the regional center to act as a designee of the director, as specified. The bill would require the Director of Developmental Services to develop guidelines to mitigate conflicts that may arise when a regional center is acting as designee while at the same time providing service coordination activities to the same person. The bill would also require the petition for conservatorship to include alternatives to conservatorship considered by the petitioner or proposed conservator and reasons why those alternatives are not suitable, alternatives tried by the petitioner or proposed conservators, if any, and the reasons why those alternatives do not meet the conservatee’s needs.

This bill would require the court to provide conservators with written information concerning the conservator’s obligations to support the conservatee. The bill would require the court, within 30 days of the establishment of a conservatorship and annually thereafter, to provide conservatees under the court’s jurisdiction with written information regarding their rights, including a personalized list of the rights the conservatee retains. The bill would expand the annual duties and reporting requirements of court investigators conducting required visits to assess the progress of the conservatorship. The bill would revise the procedures for termination of a limited conservatorship by requiring the court to terminate an uncontested petition for termination under specified circumstances, and without a hearing.

The bill, upon appropriation, would require the Judicial Council to establish a conservatorship alternatives program within each self-help center in each superior court. Among other goals, the conservatorship alternatives program would provide information relating to less restrictive alternatives to conservatorship. The bill would designate the duties of court staff reviewing petitions under the conservatorship alternatives program.

Existing law requires the Judicial Council to adopt a rule of court that specifies educational requirements for staff attorneys, examiners, investigators, and attorneys appointed as legal counsel in guardianship and conservatorship cases, as well as judges who are regularly assigned to hear probate matters.

This bill would require the Judicial Council to include the less restrictive alternatives to conservatorship in the required subject matter to meet those educational requirements.

The bill would establish a supported decisionmaking process and a process for entering into a supported decisionmaking agreement for adults with disabilities, as defined. The bill would define “supported decisionmaking” as an individualized process of supporting and accommodating an adult with a disability to enable them to make life decisions without impeding the self-determination of the adult. The bill would authorize an adult with a disability to request and have present one or more adults, including supporters, in any meeting or communication. The bill would set forth the duties of supporters and would specify the elements of a written supported decisionmaking agreement, if one is used.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 416.17 of the Health and Safety Code is amended to read:

416.17.

 It is the intent of this article that the director, when acting as guardian or conservator of the person of a developmentally disabled person, shall maintain close contact with the developmentally disabled person no matter where the person is living in this state; shall act as a wise parent would act in caring for the parent’s developmentally disabled child; shall permit and encourage maximum self-reliance on the part of the developmentally disabled person under their protection; and shall work with regional centers and the person, to the greatest extent possible, to develop and implement less restrictive alternatives to conservatorship.

SEC. 2.

 Section 416.19 of the Health and Safety Code is amended to read:

416.19.

 (a) The services to be rendered by the director as adviser or as guardian or conservator of the person shall be performed through the regional centers or by other agencies or individuals designated by the regional centers.

(b) No later than January 1, 2024, the Director of Developmental Services shall develop guidelines to mitigate conflicts that may arise when a regional center is acting as the designee of the director for a conservatee, while at the same time is also responsible for service coordination activities pursuant to Section 4647 of the Welfare and Institutions Code for that same person. The guidelines shall also include a process for any conservatee or their legal representative to request assistance from the director or their designee if they are dissatisfied with a regional center’s performance in carrying out its responsibilities under this section.

SEC. 3.

 Section 1456 of the Probate Code is amended to read:

1456.

 (a) In addition to any other requirements that are part of the judicial branch education program, on or before January 1, 2008, the Judicial Council shall adopt a rule of court that shall do all of the following:

(1) Specifies the qualifications of a court-employed staff attorney, examiner, and investigator, and any attorney appointed pursuant to Sections 1470 and 1471.

(2) Specifies the number of hours of education in classes related to conservatorships or guardianships that a judge who is regularly assigned to hear probate matters shall complete, upon assuming the probate assignment, and then over a three-year period on an ongoing basis.

(3) Specifies the number of hours of education in classes related to conservatorships or guardianships that a court-employed staff attorney, examiner, and investigator, and any attorney appointed pursuant to Sections 1470 and 1471 shall complete each year.

(4) Specifies the particular subject matter that shall be included in the education required each year. The subject matter shall, at a minimum, include the less restrictive alternatives to conservatorship set forth in Section 1800.3.

(5) Specifies reporting requirements to ensure compliance with this section.

(b) In formulating the rule required by this section, the Judicial Council shall consult with interested parties, including, but not limited to, the California Judges Association, the California Association of Superior Court Investigators, the California Public Defenders Association, the County Counsels’ Association of California, the State Bar of California, the National Guardianship Association, the Professional Fiduciary Association of California, the California Association of Public Administrators, Public Guardians and Public Conservators, a disability rights organization, the State Council on Developmental Disabilities, the State Department of Developmental Services, the California Department of Aging, and the Association of Professional Geriatric Care Managers.

SEC. 4.

 Section 1800 of the Probate Code is amended to read:

1800.

 It is the intent of the Legislature in enacting this chapter to do the following:

(a) Protect the rights of persons who are placed under conservatorship.

(b) Provide that an assessment of the needs of the person is performed in order to determine the appropriateness and extent of a conservatorship and to set goals for increasing the conservatee’s functional abilities to whatever extent possible.

(c) Provide that the health and psychosocial needs of the proposed conservatee are met.

(d) Provide that community-based services are used to the greatest extent in order to allow the conservatee to remain as independent and in the least restrictive setting as possible.

(e) Provide that the periodic review of the conservatorship by the court investigator shall consider the best interests and expressed wishes of the conservatee; whether the conservatee has regained or could regain abilities and capacity with or without supports; and whether the conservatee continues to need a conservatorship.

(f) Ensure that the conservatee’s basic needs for physical health, food, clothing, and shelter are met.

(g) Provide for the proper management and protection of the conservatee’s real and personal property.

(h) Ensure, to the greatest possible extent, that the conservatee is able to understand, make, and communicate their own, informed, choices while under conservatorship.

SEC. 5.

 Section 1800.3 of the Probate Code is amended to read:

1800.3.

 (a) If the need therefor is established to the satisfaction of the court and the other requirements of this chapter are satisfied, the court may appoint:

(1) A conservator of the person or estate of an adult, or both.

(2) A conservator of the person of a minor who is married or whose marriage has been dissolved.

(b) A conservatorship of the person or of the estate shall not be granted by the court unless the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.

(c) In determining whether a conservatorship is the least restrictive alternative available, and whether to grant or deny a conservatorship petition, the court shall consider the person’s abilities and capacities with current and possible supports, including, but not limited to, supported decisionmaking agreements, as defined in Section 21001 of the Welfare and Institutions Code, powers of attorney, designation of a health care surrogate as set forth in Section 4711, and advance health care directives.

(d) If the court becomes aware that the proposed conservatee has a developmental disability, and the proposed conservator is not seeking authority to act under Section 2356.5, the court shall deem the proceeding to be seeking a limited conservatorship.

SEC. 6.

 Section 1812 of the Probate Code is amended to read:

1812.

 (a) Subject to Sections 1810, 1813, and 1813.1, the selection of a conservator of the person or estate, or both, is solely in the discretion of the court and, in making the selection, the court is to be guided by what appears to be for the best interests of the proposed conservatee.

(b) Subject to Sections 1810, 1813, and 1813.1, of persons equally qualified in the opinion of the court to appointment as conservator of the person or estate or both, preference is to be given in the following order:

(1) The conservatee or proposed conservatee’s stated preference, including preferences expressed by speech, sign language, alternative or augmentative communication, actions, facial expressions, and other spoken and nonspoken methods of communication.

(2) The prior conservator’s preference, if known, if the selection of a successor conservator is being made pursuant to the provisions of Article 2 (commencing with Section 2680) of Chapter 9.5 of Part 4 and the prior conservator is a person described in paragraphs (3) to (6), inclusive, unless either of the following apply:

(A) The reason for the appointment of a successor conservator is due to the prior conservator’s removal pursuant to the provisions of Article 1 (commencing with Section 2650) of Chapter 9 of Part 4.

(B) The prior conservator or prior conservator’s preference for a successor conservator has been found criminally, civilly, or administratively liable for abuse, neglect, mistreatment, coercion, or fraud with respect to the conservatee or any elder or dependent adult.

(3) The spouse or domestic partner of the proposed conservatee or the person nominated by the spouse or domestic partner pursuant to Section 1811.

(4) An adult child of the proposed conservatee or the person nominated by the child pursuant to Section 1811.

(5) A parent of the proposed conservatee or the person nominated by the parent pursuant to Section 1811.

(6) A sibling of the proposed conservatee or the person nominated by the brother or sister pursuant to Section 1811.

(7) Any other person or entity eligible for appointment as a conservator under this code or, if there is no person or entity willing to act as a conservator, under the Welfare and Institutions Code.

(c) The preference for any nominee for appointment under paragraphs (4), (5), and (6) of subdivision (b) is subordinate to the preference for any other parent, child, or sibling in that class.

(d) For any conservatorship petition filed on or after January 1, 2023, a regional center, as provided in Chapter 5 (commencing with Section 4620) of Division 4.5 of the Welfare and Institutions Code, or any employee or agent acting on a regional center’s behalf, shall not act as a conservator, but may act as the designee of the Director of Developmental Services, subject to Section 416.19 of the Health and Safety Code.

SEC. 7.

 Section 1821 of the Probate Code is amended to read:

1821.

 (a) (1) The petition shall request that a conservator be appointed for the person or estate, or both, shall specify the name, address, and telephone number of the proposed conservator and the name, address, and telephone number of the proposed conservatee, and state the reasons why a conservatorship is necessary. Unless the petitioner or proposed conservator is a bank or other entity authorized to conduct the business of a trust company, the petitioner or proposed conservator shall also file supplemental information as to why the appointment of a conservator is required. The supplemental information to be submitted shall include a brief statement of facts addressed to each of the following categories:

(A) The inability of the proposed conservatee to properly provide for their own needs for physical health, food, clothing, or shelter.

(B) The location and nature of the proposed conservatee’s residence and the ability of the proposed conservatee to live in the residence while under conservatorship.

(C) Alternatives to conservatorship considered by the petitioner or proposed conservator and reasons why those alternatives are not suitable, alternatives tried by the petitioner or proposed conservators, if any, including details as to the length and duration of attempted alternatives and the reasons why those alternatives do not meet the conservatee’s needs. Those alternatives include, but are not limited to, all of the following:

(i) Supported decisionmaking agreements, as defined in Section 21001 of the Welfare and Institutions Code.

(ii) Powers of Attorney set forth in Division 4.5 (commencing with Section 4000).

(iii) Advanced Health Care Directives set forth in Chapter 1 (commencing with Section 4670) of Part 2 of Division 4.7.

(iv) Designations of a health care surrogate as set forth in Section 4711.

(D) Health or social services provided to the proposed conservatee during the year immediately preceding the filing of the petition, when the petitioner or proposed conservator has information as to those services.

(E) The substantial inability of the proposed conservatee to manage their own financial resources, or to resist fraud or undue influence.

(2) The facts required to address the categories set forth in subparagraphs (A) to (E), inclusive, of paragraph (1) shall be set forth by the petitioner or proposed conservator if the proposed conservator has knowledge of the facts or by the declarations or affidavits of other persons having knowledge of those facts.

(3) If any of the categories set forth in subparagraphs (A) to (E), inclusive, of paragraph (1) are not applicable to the proposed conservatorship, the petitioner or proposed conservator shall so indicate and state on the supplemental information form the reasons therefor.

(4) The Judicial Council shall develop a supplemental information form for the information required pursuant to subparagraphs (A) to (E), inclusive, of paragraph (1) after consultation with individuals or organizations approved by the Judicial Council, who represent public conservators, court investigators, the State Bar, specialists with experience in performing assessments and coordinating community-based services, and legal services for the elderly and disabled.

(5) The supplemental information form shall be separate and distinct from the form for the petition. The supplemental information shall be confidential and shall be made available only to parties, persons given notice of the petition who have requested this supplemental information or who have appeared in the proceedings, their attorneys, and the court. The court shall have discretion at any other time to release the supplemental information to other persons if it would serve the interests of the conservatee. The clerk of the court shall make provision for limiting disclosure of the supplemental information exclusively to persons entitled thereto under this section.

(b) The petition shall set forth, so far as they are known to the petitioner or proposed conservator, the names and addresses of the spouse or domestic partner, and of the relatives of the proposed conservatee within the second degree. If no spouse or domestic partner of the proposed conservatee or relatives of the proposed conservatee within the second degree are known to the petitioner or proposed conservator, the petition shall set forth, so far as they are known to the petitioner or proposed conservator, the names and addresses of the following persons who, for the purposes of Section 1822, shall all be deemed to be relatives:

(1) A spouse or domestic partner of a predeceased parent of a proposed conservatee.

(2) The children of a predeceased spouse or domestic partner of a proposed conservatee.

(3) The siblings of the proposed conservatee’s parents, if any, but if none, then the natural and adoptive children of the proposed conservatee’s parents’ siblings.

(4) The natural and adoptive children of the proposed conservatee’s siblings.

(c) If the petitioner or proposed conservator is a professional fiduciary, as described in Section 2340, who is required to be licensed under the Professional Fiduciaries Act (Chapter 6 (commencing with Section 6500) of Division 3 of the Business and Professions Code), the petition shall include the following:

(1) The petitioner’s or proposed conservator’s proposed hourly fee schedule or another statement of their proposed compensation from the estate of the proposed conservatee for services performed as a conservator. The petitioner’s or proposed conservator’s provision of a proposed hourly fee schedule or another statement of their proposed compensation, as required by this paragraph, shall not preclude a court from later reducing the petitioner’s or proposed conservator’s fees or other compensation.

(2) Unless a petition for appointment of a temporary conservator that contains the statements required by this paragraph is filed together with a petition for appointment of a conservator, both of the following:

(A) A statement of the petitioner’s or proposed conservator’s license information.

(B) A statement explaining who engaged the petitioner or proposed conservator or how the petitioner or proposed conservator was engaged to file the petition for appointment of a conservator or to agree to accept the appointment as conservator and what prior relationship the petitioner or proposed conservator had with the proposed conservatee or the proposed conservatee’s family or friends.

(d) If the petition is filed by a person other than the proposed conservatee, the petition shall include a declaration of due diligence showing both of the following:

(1) Either the efforts to find the proposed conservatee’s relatives or why it was not feasible to contact any of them.

(2) Either the preferences of the proposed conservatee concerning the appointment of a conservator and the appointment of the proposed conservator or why it was not feasible to ascertain those preferences.

(e) If the petition is filed by a person other than the proposed conservatee, the petition shall state whether or not the petitioner is a creditor or debtor, or the agent of a creditor or debtor, of the proposed conservatee.

(f) If the proposed conservatee is a patient in, or on leave of absence from, a state institution under the jurisdiction of the State Department of State Hospitals or the State Department of Developmental Services and that fact is known to the petitioner or proposed conservator, the petition shall state that fact and name the institution.

(g) The petition shall state, so far as is known to the petitioner or proposed conservator, whether or not the proposed conservatee is receiving, or is entitled to receive, benefits from the Veterans Administration and the estimated amount of the monthly benefit payable by the Veterans Administration for the proposed conservatee.

(h) The petition may include an application for any order or orders authorized under this division, including, but not limited to, orders under Chapter 4 (commencing with Section 1870).

(i) The petition may include a further statement that the proposed conservatee is not willing to attend the hearing on the petition, does not wish to contest the establishment of the conservatorship, and does not object to the proposed conservator or prefer that another person act as conservator.

(j) (1) In the case of an allegedly developmentally disabled adult, the petition shall set forth the following:

(A) The nature and degree of the alleged disability, the specific duties and powers requested by or for the limited conservator, and the limitations of civil and legal rights requested to be included in the court’s order of appointment.

(B) Whether or not the proposed limited conservatee is, or is alleged to be, developmentally disabled.

(2) Reports submitted pursuant to Section 416.8 of the Health and Safety Code meet the requirements of this section, and conservatorships filed pursuant to Article 7.5 (commencing with Section 416) of Chapter 2 of Part 1 of Division 1 of the Health and Safety Code are exempt from providing the supplemental information required by this section, as long as the guidelines adopted by the State Department of Developmental Services for regional centers are publicly accessible via the department’s internet website and require the same information that is required pursuant to this section.

(k) The petition shall state, so far as is known to the petitioner, whether or not the proposed conservatee is a member of a federally recognized Indian tribe. If so, the petition shall state the name of the tribe, the state in which the tribe is located, whether the proposed conservatee resides on tribal land, and whether the proposed conservatee is known to own property on tribal land. For the purposes of this subdivision, “tribal land” means land that is, with respect to a specific Indian tribe and the members of that tribe, “Indian country” as defined in Section 1151 of Title 18 of the United States Code.

SEC. 8.

 Section 1835 of the Probate Code is amended to read:

1835.

 (a) Every superior court shall provide all conservators with written information concerning a conservator’s rights, duties, limitations, and responsibilities under this division.

(b) The information to be provided shall include, but need not be limited to, the following:

(1) The rights, duties, limitations, and responsibilities of a conservator.

(2) The rights of a conservatee.

(3) How to assess the needs and preferences of the conservatee.

(4) How to use community-based services to meet the needs of the conservatee.

(5) How to ensure that the conservatee is provided with the least restrictive possible environment.

(6) The court procedures and processes relevant to conservatorships.

(7) The procedures for inventory and appraisal, and the filing of accounts.

(8) Procedures to petition to terminate or modify the conservatorship.

(9) The conservator’s obligations pursuant to Section 2113.

(c) An information package shall be developed by the Judicial Council, after consultation with the following organizations or individuals:

(1) The California State Association of Public Administrators, Public Guardians, and Public Conservators, or other comparable organizations.

(2) The State Bar.

(3) Individuals or organizations, approved by the Judicial Council, who represent court investigators, specialists with experience in performing assessments and coordinating community-based services, and legal services programs for the elderly.

(d) The failure of any court or any employee or agent thereof, to provide information to a conservator as required by this section does not:

(1) Relieve the conservator of any of the conservator’s duties as required by this division.

(2) Make the court or the employee or agent thereof, liable, in either a personal or official capacity, for damages to a conservatee, conservator, the conservatorship of a person or an estate, or any other person or entity.

(e) The information package shall be made available to individual courts. The Judicial Council shall periodically update the information package when changes in the law warrant revision. The revisions shall be provided to individual courts.

(f) To cover the costs of providing the written information required by this section, a court may charge each private conservator a fee of twenty dollars ($20) which shall be distributed to the court in which it was collected.

SEC. 9.

 Section 1835.5 is added to the Probate Code, to read:

1835.5.

 (a) Within 30 days of the establishment of a conservatorship under this division, and annually thereafter, the superior court shall provide information to a conservatee under its jurisdiction, written in plain language, with a list of the conservatee’s rights within the conservatorship.

(b) The information to be provided shall include, but need not be limited to, all of the following:

(1) The name and contact information of the conservator.

(2) A description of the conservatorship, including the rights the conservatee retains under the conservatorship.

(3) The role, duties, and contact information, including name, telephone number, address, and email address, of the court investigator and the court alternatives program.

(4) The person to petition to end or change the conservatorship and contact information for the person to contact to begin that process.

(5) A personalized list of rights that the conservatee retains, even under the conservatorship, including the rights to do all of the following:

(A) Directly receive and control their own salary.

(B) Make or change their will.

(C) Get married.

(D) Receive mail.

(E) Have visits from family and friends.

(F) Have a lawyer.

(G) Ask a judge to change conservators.

(H) Ask a judge to end the conservatorship.

(I) Vote, unless expressly withheld by the court.

(J) Control personal spending money if a judge permits an allowance to be paid directly to the conservatee.

(K) Make their own health care decisions.

(L) Enter into business transactions to provide for the conservatee’s basic needs and those of their children.

(M) Participate in other activities the court allows when the conservator is appointed, or when the court order later grants that right at the conservatee’s request.

(6) The personalized list of rights in paragraph (5) shall state which rights, if any, were expressly withheld by the court.

SEC. 10.

 Section 1836 is added to the Probate Code, to read:

1836.

 (a) Upon appropriation by the Legislature, the Judicial Council shall establish a conservatorship alternatives program within each self-help center in every state Superior Court.

(b) The purposes of the conservatorship alternatives program are:

(1) To provide information relating to less restrictive alternatives to conservatorship, including, but not limited to, supported decisionmaking agreements, as defined in Section 21001 of the Welfare and Institutions Code, to interested individuals.

(2) To educate interested individuals on less restrictive alternatives to conservatorship that may be appropriate, and to provide assistance in considering and implementing those alternatives.

(c) Each court’s conservatorship alternatives program shall include staff who provide information and resources to interested individuals about less restrictive alternatives to conservatorship.

(d) The conservatorship alternatives program shall operate as follows:

(1) Any interested individual who contacts a superior court self-help center to inquire about conservatorship proceedings or to request documents to petition for a conservatorship shall be advised of the conservatorship alternatives program.

(2) The conservatorship alternatives program shall be a component of each superior court’s self-help center.

(3) Conservatorship alternatives program staff shall be trained in less restrictive alternatives to conservatorship and shall be available to meet, through in-person or remote means, with interested individuals to provide education and resources on supported decisionmaking agreements and other less restrictive alternatives to conservatorship, and to provide resources to assist people who wish to implement or establish those alternatives.

(4) Conservatorship alternatives program staff shall be able to provide the following to interested individuals:

(A) Practical resources, information, and documents to establish and implement alternatives to conservatorship, including powers of attorney, advance health care directives, and supported decisionmaking agreements.

(B) Technical support and education on these alternatives, including assistance in filling out any associated paperwork and in understanding these alternatives.

(5) Interactions or communication with the CAP Program shall not be used as evidence of incapacity or introduced for any other reason in a conservatorship proceeding under this division unless introduced by the conservatee or proposed conservatee.

SEC. 11.

 Section 1850 of the Probate Code is amended to read:

1850.

 (a) Except as provided in subdivision (e), each conservatorship established pursuant to this part shall be reviewed by the court as follows:

(1) Six months after the initial appointment of the conservator, the court investigator shall visit the conservatee, conduct an investigation as provided in subdivision (a) of Section 1851, and report to the court regarding the appropriateness of the conservatorship and whether the conservator is acting in the best interests of the conservatee regarding the conservatee’s placement, quality of care, including physical and mental health treatment, and finances. In response to the investigator’s report, the court may take appropriate action including, but not limited to, ordering a hearing or ordering the conservator to submit an accounting pursuant to subdivision (a) of Section 2620.

(2) One year after the initial appointment of the conservator and annually thereafter, the court investigator shall, as provided in Section 1851, visit the conservatee, conduct an investigation, including, when possible, discussing with the conservatee less restrictive alternatives to conservatorship as set forth in Section 1800.3, and report the findings of the investigation to the court, including whether the conservator or conservatee wishes to modify or terminate the conservatorship and whether less restrictive alternatives could be tried. On receipt of the investigator’s report, the court shall, if indicated by the report, consider promptly terminating or modifying the conservatorship at a hearing pursuant to Section 1860.5 or 1863 and take any other appropriate action.

(b) At any time, the court may, on its own motion or upon request by any interested person, take appropriate action including, but not limited to, ordering a review of the conservatorship at a noticed hearing or ordering the conservator to submit an accounting pursuant to Section 2620.

(c) Notice of a review hearing pursuant to this section shall be given to the persons, for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

(d) This chapter does not apply to either of the following:

(1) A conservatorship for an absentee as defined in Section 1403.

(2) A conservatorship of the estate for a nonresident of this state where the conservatee is not present in this state.

(e) (1) A superior court shall not be required to perform any duties imposed pursuant to the amendments to this section enacted by Chapter 493 of the Statutes of 2006 until the Legislature makes an appropriation identified for this purpose.

(2) A superior court shall not be required to perform any duties imposed pursuant to the measure that added this paragraph until the Legislature makes an appropriation identified for this purpose.

SEC. 12.

 Section 1860.5 of the Probate Code is amended to read:

1860.5.

 (a) A limited conservatorship continues until the authority of the conservator is terminated by one of the following:

(1) The death of the limited conservator.

(2) The death of the limited conservatee.

(3) An order appointing a conservator of the former limited conservatee.

(4) An order of the court terminating the limited conservatorship.

(b) A petition for the termination of a limited conservatorship may be filed by any of the following:

(1) The limited conservator.

(2) The limited conservatee.

(3) Any relative or friend of the limited conservatee.

(c) The petition shall state facts showing that the limited conservatorship is no longer required.

(d) Notice of a hearing pursuant to Section 1850.5 or on a petition filed pursuant to this section shall be given to the same persons and in the same manner as provided for a petition for the appointment of a limited conservator.

(1) If a petition is filed and the limited conservator is not the petitioner, or has not joined in the petition, the limited conservator shall be served with a notice of the time and place of the hearing accompanied by a copy of the petition at least five days prior to the hearing. This service shall be made in the same manner provided for in Section 415.10 or 415.30 of the Code of Civil Procedure or in another manner authorized by the court. If the limited conservator cannot, with reasonable diligence, be so served with notice, the court may dispense with notice.

(2) If the court sets a hearing pursuant to Section 1850.5 to consider termination of a limited conservatorship and no petition is filed, the court shall order the limited conservator to give notice of the hearing as provided in this subdivision and to appear at the hearing and show cause why the limited conservatorship should not be terminated.

(e) (1) The limited conservatee shall be produced at the hearing except in the following cases:

(A) When the limited conservatee is out of the state and is not the petitioner.

(B) When the limited conservatee is unable to attend the hearing by reason of medical inability.

(C) When the court investigator has reported to the court that the limited conservatee has expressly communicated that the limited conservatee (i) is not willing to attend the hearing, (ii) does not wish to contest the continuation of the limited conservatorship, and (iii) does not object to the current limited conservator or prefer that another person act as limited conservator, and the court makes an order that the limited conservatee need not attend the hearing.

(2) If the limited conservatee is unable to attend the hearing because of medical inability, that inability shall be established by the affidavit or certificate of a licensed medical practitioner or, if the conservatee is an adherent of a religion whose tenets and practices call for reliance on prayer alone for healing and is under treatment by an accredited practitioner of that religion, by the affidavit of the practitioner. The affidavit or certificate is evidence only of the limited conservatee’s inability to attend the hearing and shall not be considered in determining the issue of need for the continuation of the limited conservatorship.

(3) Emotional or psychological instability is not good cause for the absence of the conservatee from the hearing unless, by reason of that instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the conservatee.

(f) The limited conservator or any relative or friend of the limited conservatee may appear and support or oppose termination of the limited conservatorship. The court shall hear and determine the matter according to the laws and procedures relating to the trial of civil actions, including trial by jury if demanded. If the court terminates the limited conservatorship, the limited conservator may, either at the hearing or thereafter on further notice and hearing, be discharged and the bond exonerated upon the settlement and approval of the final account by the court.

(g) (1) The court shall order the termination of the limited conservatorship unless the court finds, on the record and by clear and convincing evidence, that the limited conservatee still meets the criteria for appointment of a limited conservator under Section 1801 and a limited conservatorship remains the least restrictive alternative needed for the limited conservatee’s protection.

(2) If the petition for termination is uncontested and states facts showing that both the limited conservator and limited conservatee wish to terminate the limited conservatorship, and the conservatorship is no longer the least restrictive alternative for the limited conservatee’s protection, the court may terminate the limited conservatorship without an evidentiary hearing.

(h) If the court determines, by clear and convincing evidence, that the limited conservatee meets the criteria for appointment of a limited conservator under Section 1801, the court shall determine whether to modify the powers granted to the limited conservator to ensure that the limited conservatorship remains the least restrictive alternative needed for the limited conservatee’s protection. If the court modifies any powers granted to the limited conservator, new letters shall issue.

SEC. 13.

 Section 1861.5 is added to the Probate Code, to read:

1861.5.

 Upon the receipt of a communication from the conservatee that the conservatee wishes to terminate the conservatorship, a court shall appoint counsel for the conservatee and set a hearing for the termination of the conservatorship when either of the following conditions apply:

(a) There has not been a hearing for the termination of the conservatorship within the 12 months preceding the communication from the conservatee.

(b) The court believes there is good cause to set a hearing for the termination of the conservatorship.

SEC. 14.

 Section 1863 of the Probate Code is amended to read:

1863.

 (a) The court shall hear and determine the matter according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the conservatee. The conservator, the conservatee, the spouse or domestic partner, or any relative or friend of the conservatee or other interested person may appear and support or oppose the termination of the conservatorship.

(b) (1) The conservatee shall be produced at the hearing except in the following cases:

(A) When the conservatee is out of the state and is not the petitioner.

(B) When the conservatee is unable to attend the hearing by reason of medical inability.

(C) When the court investigator has reported to the court that the conservatee has expressly communicated that the conservatee (i) is not willing to attend the hearing, (ii) does not wish to contest the continuation of the conservatorship, and (iii) does not object to the current conservator or prefer that another person act as conservator, and the court makes an order that the conservatee need not attend the hearing.

(2) If the conservatee is unable to attend the hearing because of medical inability, that inability shall be established by the affidavit or certificate of a licensed medical practitioner or, if the conservatee is an adherent of a religion whose tenets and practices call for reliance on prayer alone for healing and is under treatment by an accredited practitioner of that religion, by the affidavit of the practitioner. The affidavit or certificate is evidence only of the conservatee’s inability to attend the hearing and shall not be considered in determining the issue of need for the continuation of the conservatorship.

(3) Emotional or psychological instability is not good cause for the absence of the conservatee from the hearing unless, by reason of that instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the conservatee.

(c) Unless the court determines, on the record and by clear and convincing evidence, that (1) the conservatee still meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both; and (2) a conservatorship remains the least restrictive alternative needed for the conservatee’s protection, as required by subdivision (b) of Section 1800.3, the court shall enter judgment terminating the conservatorship.

(d) If the court determines, by clear and convincing evidence, that the conservatee meets the criteria for appointment of a conservator of the person under subdivision (a) of Section 1801, a conservator of the estate under subdivision (b) of Section 1801, or both, the court shall determine whether to modify the existing powers of the conservator to ensure that the conservatorship remains the least restrictive alternative needed for the conservatee’s protection and shall order the conservatorship to continue accordingly. If the court modifies the existing powers of the conservator, new letters shall issue.

(e) At the hearing, or thereafter on further notice and hearing, the conservator may be discharged and the bond given by the conservator may be exonerated upon the settlement and approval of the conservator’s final account by the court.

(f) This section does not apply to limited conservatorships.

(g) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.

(h) If a petition for termination pursuant to Section 1861 is uncontested and states facts showing that both the conservator and conservatee wish to terminate the conservatorship and the conservatorship is no longer the least restrictive alternative for the conservatee’s protection, the court may terminate the conservatorship without an evidentiary hearing.

SEC. 15.

 Section 2113 of the Probate Code is amended to read:

2113.

 A conservator shall accommodate the desires of the conservatee, except to the extent that doing so would violate the conservator’s fiduciary duties to the conservatee or impose an unreasonable expense on the conservatorship estate. To the greatest extent possible, the conservator shall support the conservatee to maximize their autonomy, support the conservatee in making decisions, and, on a regular basis, inform the conservatee of decisions made on their behalf. In determining the desires of the conservatee, the conservator shall consider stated or previously expressed preferences, including preferences expressed by speech, sign language, alternative or augmentative communication, actions, facial expressions, and other spoken and nonspoken methods of communication.

SEC. 16.

 Division 11.5 (commencing with Section 21000) is added to the Welfare and Institutions Code, to read:

DIVISION 11.5. Supported Decisionmaking

21000.

 The Legislature finds and declares all of the following:

(a) Adults with disabilities, including older adults with disabilities, are presumed competent and to have the capacity to make decisions regarding their day-to-day health, safety, welfare, and social and financial affairs, unless otherwise determined through legal proceedings.

(b) All adults, to the best of their ability and with supports they choose, should be able to be informed about, and participate in, the management of their affairs.

(c) Like adults without disabilities, adults with disabilities may use a wide range of voluntary supports to help them understand, make, and communicate their own decisions. These voluntary arrangements should be encouraged and recognized as a valid way for people with disabilities to strengthen their capacity and maintain their autonomy.

(d) The capacity of an adult should be assessed with any supports, including supported decisionmaking, that the person is using or could use.

(e) Supported decisionmaking offers adults with disabilities a flexible way to maintain autonomy and decisionmaking authority over their own lives by developing and maintaining voluntary supports to assist them in understanding, making, communicating, and implementing their own informed choices.

(f) Supported decisionmaking can be a way to strengthen the capacity of an adult with a disability.

(g) Supported decisionmaking is one of several options available to adults with disabilities to understand, make, and communicate decisions and to express preferences, including, but not limited to, medical and financial powers of attorney, authorized representative forms, health care directives, release of information forms, and representative payees.

21001.

 The following definitions apply for purposes of this division:

(a) “Adult with a disability” means an adult with any disability, including an older adult with a disability or an age-related disability. Disability includes, but is not limited to, an intellectual or developmental disability, cognitive disability, communication disability, psychiatric disability, physical disability, sensory disability, learning disability, dementia, cognitive impairment, Alzheimer’s disease, major neurocognitive disorder, or chronic illness or condition.

(b) “Life decision” means any decision that affects the adult with a disability, including, but not limited to, a decision regarding any medical, psychological, financial, educational, living arrangement, access to home and community-based services, social, sexual, religious, or occupational matter.

(c) “Supported decisionmaking” means an individualized process of supporting and accommodating an adult with a disability to enable them to make life decisions without impeding the self-determination of the adult.

(d) “Supported decisionmaking agreement” means a voluntary, written agreement, written in plain language accessible to the adult with a disability and in conformance with Section 21005. A supported decisionmaking agreement shall be signed in conformance with subdivision (b) of Section 21005 and may be revoked orally or in writing at any time by either party. A supported decisionmaking agreement may include images, be read aloud, or be video or audio recorded, in addition to the written version.

(e) “Supporter” means one or more adults who meet the requirements in Section 21002 and who enter into a supported decisionmaking agreement to help the adult with a disability make decisions.

21002.

 (a) 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. This division does not limit a supporter’s civil or criminal liability for prohibited conduct against the adult with a disability, including liability for fraud, abuse, neglect, breach of fiduciary duty, if any exists, coercion, or mistreatment, including liability under the Elder Abuse and Dependent Adult Civil Protection Act (Chapter 11 (commencing with Section 15600) of Part 3 of Division 9), including, but not limited to, Sections 15656 and 15657.

(b) An individual shall not be selected as a supporter or continue as a supporter of an adult with a disability in any of the following circumstances:

(1) The adult with a disability previously made, or makes, an allegation against the supporter under the Elder Abuse and Dependent Adult Civil Protection Act.

(2) The adult with a disability has obtained, or obtains, an order of protection from abuse against the supporter.

(3) The supporter is the subject of a civil or criminal order prohibiting contact with the adult with the disability, or is subject to a restraining order with respect to the adult with a disability.

(4) The supporter has been removed as the conservator of the adult with a disability, based upon a finding that they did not act in the conservatee’s best interest.

(5) The supporter is found criminally, civilly, or administratively liable for abuse, neglect, mistreatment, coercion, or fraud.

(c) A supporter shall do all of the following:

(1) Support and implement the direction, will, and preferences of the adult with a disability.

(2) Respect the values, beliefs, and preferences of the adult with a disability.

(3) Act honestly, diligently, and in good faith.

(4) Act within the scope identified by the adult with a disability.

(5) Maintain confidentiality of any information obtained by a supporter, unless the adult with a disability specifically authorizes its disclosure.

(d) (1) A supporter shall not coerce an adult with a disability.

(2) Unless the supporter has a valid legal authorization to do so and the action is within the scope of their authority, a supporter shall not do either of the following:

(A) Make decisions for, or on behalf of, the adult with a disability.

(B) Sign documents on behalf of the adult with a disability.

(3) A supporter shall not obtain information not reasonably related to matters with which the adult with a disability has requested assistance, and shall not use or disclose information for any purpose other than supporting the adult with a disability.

(4) A supporter shall not participate in any life decision in which they have a conflict of interest. This includes, but is not limited to, any decision in which the supporter has a financial or other tangible stake in the outcome.

21003.

 (a) An adult with a disability may choose to enter into a supported decisionmaking agreement with one or more chosen supporters. Support may include, but is not limited to, helping the adult with a disability obtain and understand information related to a life decision, communicating the decision to others, and assisting the individual to ensure their preferences and decisions are honored.

(b) An adult with a disability’s signing of a supported decisionmaking agreement does not preclude the adult with the disability from acting independently of a supported decisionmaking agreement and shall not be used by a court or other entity as evidence of incapacity. This subdivision does not limit the admissibility of evidence pursuant to Section 28 of Article 1 of the California Constitution.

21004.

 (a) Notwithstanding any other provision of this division, an adult with a disability is entitled to have present one or more other adults, including supporters, in any meeting or discussion, or to participate in any written communication, including, but not limited to, individual planning meetings required by state or federal law, service and care planning meetings, discharge planning meetings, meetings with health care providers and individuals who provide residential services or long-term services and supports, and communications with a bank, financial institution, or financial planner.

(b) An adult with a disability may indicate that they wish to have one or more adults attend a meeting or discussion or participate in any written communication through oral statement, gesture, or any augmentative or alternative communication method used by the adult with a disability.

(c) A third party may only refuse the presence of one of more adults, including supporters, if the third party reasonably believes that there is fraud, coercion, abuse, or other action by the individuals requested to be included that the third party is required to report pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Chapter 11 (commencing with Section 15600) of Part 3 of Division 9).

(d) The Legislature finds and declares that this section is declaratory of existing law.

21005.

 (a) A supported decisionmaking agreement shall be written in plain language accessible to the adult with the disability and shall include, but not be limited to, all of the following:

(1) A list of the areas in which the adult with a disability requests support.

(2) A list of the areas in which the supporter agrees to provide the support.

(3) The supporter’s agreement that they meet each of the requirements specified in Section 21002.

(4) Information advising the adult with a disability about their right to file a report under the Elder Abuse and Dependent Adult Civil Protection Act (Chapter 11 (commencing with Section 15600) of Part 3 of Division 9), including, but not limited to, Sections 15656 and 15657.

(5) Information and copies of other supported or substituted decisionmaking documents the adult with a disability has in place, including, but not limited to, powers of attorney, authorizations to share medical or educational information, authorized representative forms, or representative payee agreements.

(b) A supported decisionmaking agreement shall be signed by the adult with a disability and each supporter, in the presence of two or more attesting and disinterested witnesses who are at least 18 years of age, or a notary public. The adult with a disability may use reasonable modifications, such as assistive technology or physical assistance, to sign the agreement.

(c) A supported decisionmaking agreement should be reviewed by all supporters and the adult with a disability every two years and updated as needed. An updated agreement shall be signed as required in subdivision (b).

21006.

 (a) (1) A supported decisionmaking agreement is effective until it is terminated in one of the following ways:

(A) By the adult with a disability.

(B) By all supporters.

(C) By the terms of the agreement.

(D) By the death of the adult with a disability.

(E) All supporters are no longer eligible to serve pursuant to Section 21002.

(2) Any party may choose to terminate their participation in the agreement at any time by providing written or oral notice of the termination to all parties to the agreement. An adult with a disability may terminate a supported decisionmaking agreement by other conduct intended to communicate termination, including by canceling, defacing, obliterating, burning, tearing, or otherwise destroying the supported decisionmaking agreement or directing another in the presence of the adult with a disability to destroy the supported decisionmaking agreement.

(b) If there is more than one supporter, the termination by one supporter does not terminate the supported decisionmaking agreement with respect to other supporters.

21007.

 This division does not apply to CARE court proceedings or to a CARE supporter trained and appointed under the Community Assistance, Recovery, and Empowerment (CARE) Act (Part 8 (commencing with Section 5970) of Division 5).

21008.

  In developing educational information or training materials on supported decisionmaking or supported decisionmaking agreements, the California Health and Human Services Agency or any departments under its jurisdiction shall do all of the following:

(a) Consider the needs of individuals who have been underserved, including, but not limited to, immigrants, individuals whose preferred language is not English, individuals from rural communities, and individuals living in long-term care facilities.

(b) Consider existing materials and resources on supported decisionmaking and best practices developed nationwide.

(c) Consult with stakeholders to provide input about the information, materials, and training being developed. The stakeholders shall include persons with a disability, including an older adult with a disability, family members of a person with a disability and family members of an older adult living in a long-term care facility, and one representative of each of the following: the State Council on Developmental Disabilities; the protection and advocacy agency described in subdivision (i) of Section 4900; the client’s rights advocate described in Section 4433; a disability organization; the California Health and Human Services Agency’s Alzheimer’s and Related Disorders Advisory Committee, the departments’ ombudsperson offices; and an organization representing older adults.