Mcle Self-study Article Assembly Bill 1663 "protective Proceedings": Less-restrictive Alternatives to Conservatorship

• Publication year: 2023

MCLE SELF-STUDY ARTICLE ASSEMBLY BILL 1663 "PROTECTIVE PROCEEDINGS": LESS-RESTRICTIVE ALTERNATIVES TO CONSERVATORSHIP

Written by Klaus Gottlieb, Esq.^*

I. SYNOPSIS

Assembly Bill No. 1663 (2021-2022 Reg. Sess.) (A.B. 1663), "Protective Proceedings," is new legislation that became effective January 1, 2023. It makes multiple important amendments to the Probate Code and the Welfare and Institutions Code. California joins an increasing number of states that have made less-restrictive alternatives to conservatorship a legislative priority. Supported decision-making (SDM) is one of them. The idea is that adults with a disability, which could include dementia, retain their autonomy and make their own decisions, albeit with support. SDM can be informal or memorialized in an SDM agreement. California had the benefit of not needing to start from scratch and, indeed, many of the provisions of the new law accord with those in the 2017 Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA).

Still, a critical reading of A.B. 1663 reveals some areas that raise questions. For example, if the SDM agreement can be revoked anytime, even orally, without formality, are these agreements too fragile? Should supporters have an expressly fiduciary relationship with the supported adult with a disability? Will supporters receive compensation? Should they? Are third parties required to honor an SDM agreement? If not, what incentives are there to do so? Is there limited immunity for good-faith reliance? Will the envisioned Conservatorship Alternatives Program get funded? Is it a bit like a legal clinic? Should effective data collection have been a provision in the bill? These and other issues are addressed in this article.

II. BACKGROUND

In California, guardianship (conservatorship)¹ reform has been brought into sharp focus by the "Save Britney"² campaign. According to 2011 estimates (accurate data is lacking), between one and three million people then living in the United States had a guardian appointed for them at one point in time.³

Interest in guardianship reform is not new. The ABA has counted nearly 400 guardianship bills nationwide from 2011 to 2021,⁴ many resulting in a complete overhaul of the respective statutes. Many of them were motivated by actual or perceived abuses of guardianship.

III. A HISTORY OF ABUSE, NEGLECT, AND INDIFFERENCE

In 1987, "a year-long investigation by The Associated Press of courts in all 50 states and the District of Columbia found a dangerously burdened and troubled system that regularly puts elders' lives in the hands of others with little or no evidence of necessity, and then fails to guard against abuse, theft and neglect."⁵ While the U.S. Government Accountability Office has profiled numerous cases of guardians who financially exploited or neglected older adults, a 2016 report acknowledged that the extent of the problem is not known due to lack of reporting.⁶

The 2020 black comedy thriller movie, I Care a Lot, which is about a guardian who drains her elderly wards of their money, created a buzz among estate planners, many of whom commented in blog posts about what was pure fiction and what was not.⁷

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Hyperbole aside, even well-meaning people may inadvertently contribute to the problem. An examination of care pathways in hospitals and nursing homes revealed that guardianship petitions are often instituted for patients with variable degrees of capacity for the convenience of the institution or caregiver, sometimes just to ensure that somebody pays the bill.⁸

However, legislative reform, especially for SDM, was not spearheaded by elder rights advocacy groups, but by disability rights activists with a focus on young adults transitioning from being under the care of their families to independence.⁹ The possible implications of such reform for persons with dementia will be discussed further below.

A. Stakeholder Agendas

The most aggressive approach to guardianship reform was formulated in the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Article 12 emphasizes full and equal legal capacity of all citizens to participate in decisions. It mandates replacing substituted decision-making (guardianship) with SDM. Not surprisingly, given the impracticability of this approach, even signatory states have only partially implemented CRPD, retaining interpretative declarations and reservations relating to Article 12.¹⁰

The unifying concept of guardianship legislative reform is the increased emphasis on less-restrictive alternatives to guardianship, with SDM taking center stage. Professor Kohn argued that this is:

the product of the alignment of three interest groups: family members of individuals with disabilities, who benefit from the new powers this legislative approach gives them; disability rights advocates, for whom its rejection of professionalized care resonates; and fiscal and social conservatives, who find it attractive because it both reduces public expenditures and embraces a conservative vision of the family as a private, supportive unit that should be protected from government interference.¹¹

B. Uniform Law Commission

In 2017, the Uniform Law Commission promulgated the UGCOPAA. The uniform act was drafted with extensive input from experienced guardianship judges and organizations that advocate for guardianship reform.¹² Only two states, Washington and Maine, have enacted it without modifications. The Act contains innovations similar to those seen in A.B. 1663 (see Table 1). Table 1 focuses on changes to conservatorship in the California Probate Code. We will discuss the new topic of SDM separately.

TABLE 1.

UGCOPAA13

AB 1663 amendments to the Probate Code14

Person-centered planning. Each guardianship and conservatorship will have an individualized plan that considers the preferences and values of the person with a disability. Courts will monitor guardians and conservators to ensure compliance and approve updates to the plan in response to changing circumstances.

Section 1800: It is the intent of the Legislature in enacting this chapter to do the following: ... (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. ... (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." Section 1812: ... (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 ..."

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Express decision-making standard. A guardian/conservator is a fiduciary and must always act for the benefit of the person subject to guardianship or conservatorship. A guardian for an adult must make decisions the guardian reasonably believes the adult would make if able, unless doing so would cause harm to the adult. To the extent feasible, a guardian for an adult must promote the adult's self-determination, encourage the adult's participation in decisions, and take into account the values and preferences of the adult.	Section 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 . . . .
Enhanced notice. Enhanced protection for individuals subject to guardianship or conservatorship without greatly increasing the costs of monitoring by allowing the court to identify other persons to receive notice of certain suspect actions, who can therefore serve as extra sets of eyes and ears for the court.	Section 1850, subdivision (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.
Guaranteed

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