Subject: request to amend AB 1663

Hon. Brian Maienschein

California Assembly

Re: AB 1663 (Probate Conservatorship Reform and Supported Decision-Making Act)

Dear Assembly Member Maienschein:

Before granting a petition for a conservatorship, current law requires a judge to make a finding that less

restrictive alternatives are not available. This requirement is virtually meaningless without an additional

requirement that the judge make specific factual findings as to why

they are not available. The Judicial Council

provides judges with a standard form to use when an order of conservatorship is entered. The less restrictive

alternative finding is preprinted on the form. The judge does not even have to check a box. Just sign the order.

This demonstrates that little consideration is given to this so-called requirement. (See the attached request for

depublication which was granted by the Supreme Court.)

both of the following:

Without the requirement of specific facts, courts will likely continue to use a preprinted form with a baked-in

finding that may not be supported by clear and convincing evidence.

Limited vs. General Conservatorships

AB 1663 should amend subdivision (c) of Section 1800.3 to require the court, when it becomes aware from any

source that a proposed conservatee has a developmental disability, to deem the proceeding to be a limited

conservatorship. Limited conservatorship proceedings were created by the Legislature in 1980 for one purpose

being filed as petitions for a general conservatorship. (See whistleblower report.) By doing so, the adults

targeted by these proceedings have been denied the right to counsel and the benefits of a mandatory evaluation

There is no good reason to allow petitions for general conservatorship to proceed as such when the target of the

petition has a developmental disability. Under current law, an order for a limited conservatorship is already

tantamount to a general conservatorship if the court grants the conservator all seven powers specified in the

Probate Code.

The current subdivision (c) of the bill should be amended as follows: (c) If from any source the court becomes

AB 1663 would add additional requirement to the annual reviews that are supposed to be done by court

investigators. But under current law there is no mechanism to ensure that such reviews are conducted in a

timely manner. The requirement of an annual rather than a biennial review by court investigators was added by

legislation in 2007. However, since it was never funded it was never implemented. So the annual requirement

in this bill is likely to be more illusory rather than real.

Further, even if funding were provided, the court may shift the money from one line item to another in its

budget to fund activities that it deems more important. For example, during the budget crunch after the financial

crisis of 2009, the Los Angeles Superior Court made an administrative decision to stop using court investigators

thereafter, to send notice to the court investigator’s office, all parties to the case, and the attorney of record for

the conservatee that an annual or biennial court investigator’s review is due; and (2) if there is no attorney of

record for the conservatee, require the court to appoint such an attorney forthwith; and (3) if such a review is not

conducted in a timely manner and consistent with the requirements of this section, to authorize the attorney to

file an appeal or petition for a writ of mandate with the Court of Appeal to ensure compliance with this mandate.

In places such as Los Angeles, the court has a practice of relieving counsel as attorney of record for the

conservatee once the order of conservatorship is granted or the attorney’s fees are paid, which is shortly

thereafter. As a result, conservatees in such jurisdictions have no attorney for years at a time. Because of the

nature of their disabilities, the conservatees cannot complain about the failure of a court investigator to conduct

disability, conservatees are generally not able to do so. Therefore, AB 1663 should be amended to require the

court to send a notice to these offices one year from the date the original order was entered and each year

thereafter on such date. The bill should also be amended to require the attorney of record to take appropriate

action if the annual or biennial investigation is not conducted according to law.

To achieve this objective, AB 1663 should be amended to add the following language at the end of Section 1850

(a)(2): The court, upon expiration of one year from the date of the conservatorship order and each year

for the conservatee that an annual or biennial court investigator’s review is due; and (2) if there is no attorney

of record for the conservatee, the court shall appoint such an attorney forthwith; and (3) if such a review is not

conducted in a timely manner and consistent with the requirements of this section, the attorney for the

conservatee is authorized to file an appeal or a petition for a writ of mandate with the Court of Appeal to ensure

compliance with this section.

Role of Attorney for Conservatee

The best way to ensure compliance by the court with the requirement that less restrictive alternatives be

considered, tried, and ruled out as a viable option, is to require public defenders and appointed attorneys who

and factually found to be unfeasible. Without mechanisms to ensure accountability, AB 1663 could become a

well-meaning by ineffective legislative overture.

To achieve this objective, AB 1663 should be amended to add subdivision (d) at the end of Section 1800.3:

Consistent with the role of counsel for a proposed conservatee to act as a zealous advocate, such attorney: (1)

shall investigate the feasibility of less restrictive alternatives such a supported decision-making, and if the

attorney determines that such an option is arguably meritorious, the attorney: (a) shall demand an evidentiary

hearing on the matter; and (b) the attorney may file a notice of appeal to challenge the order granting the

conservatorship on the ground that the court’s findings on this issue are not supported by clear and convincing

evidence, or that the court did not evaluate the matter according to law.

involuntarily entangled in these proceedings.

Two years ago, SB 1016 was introduced to advance the right of proposed conservatees to have less restrictive

alternatives used if feasible. Then, as now, the author’s intent was laudable. But unless real advocacy on this

issue is required for court-appointed attorneys, and until judges are subjected to meaningful accountability, the

Spectrum Institute has studied the conservatorship system for several years. We have published many policy

reports on the flaws as well as the solutions. https://spectruminstitute.org/publications/

Please contact us if

you would like additional information or documents on issues relevant to AB 1663.

Respectfully,

Thomas F. Coleman

https://disabilityandguardianship.org/2017-sdm-arc.pdf

and the World Congress on Adult Guardianship.

https://disabilityandguardianship.org/2018-sdm-world-congress.pdf

My efforts to turn supported decision-

making from a theory to a reality in the context of conservatorship and guardianship proceedings have been

recognized by the awards and commendations I have received from disability rights organizations such as The

Arc of California, The Arc of Riverside County, and TASH. (See attachments.) With these amendments, AB

1663 could help California catch up with the rest of the developed world when it comes to the use of supported