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Due Process Ignored in Conservatorship

Summary:

Conservatorship involves profound deprivation of rights, often for life and without opportunity for appeal.  Yet, courts may disregard due process in conservatorship proceedings.

Courts require conservatees to pay court costs, fees to the petitioner, fees to petitioner’s attorneys, and fees to court appointed attorneys, all without regard for the merits of a conservatorship petition.  Conservatees and their families also bear the cost of opposing questionable petitions and proceedings.

Case law establishes due process required to remove rights from individuals accused of crimes. Requiring defendants to fund prosecution would be considered abhorrent.  Conservatees may be denied the due process enjoyed by criminal defendants.

Existing Law:

Probate Code 1823(b)(7) states:

The proposed conservatee has the right to a jury trial if desired. 

Research by California Advocates for Nursing Home Reform (CANHR) found that only 1% of conservatorship petitions go to trial.  Many conservatorship hearings include no evidence or testimony.  Some probate courts lack jury facilities. 

Probate Code 1801(e) states: 

The standard of proof for the appointment of a conservator pursuant to this section shall be clear and convincing evidence.   

CANHR found that only 4% of conservatorship petitions are denied.  CEDAR sees many   conservatorship petitions granted in hearings of only a few minutes’ duration. 

Probate Code 1801.3(b) states:   

No conservatorship of the person or of the estate shall 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.   

CANHR’s Tony Chicotel, Esq.  observed: 

First, the vast majority of the conservatees did not appear at their own hearings. Neither the judge nor the conservatees’ attorneys acknowledged that the absence of the conservatee was a handicap to deciding whether a conservatorship was warranted.

 Chicotel further observed: 

Not only must conservatees pay to fight their own case, they must also pay the costs incurred by the other side.  CEDAR sees estates depleted and families financially ruined in efforts to oppose exploitation of loved ones through questionable conservatorships. 

 Rationale:

It is nearly impossible to successfully oppose a conservatorship petition.  Due process may be denied.  Proposed conservatees may be excluded from hearings.   Evidence and testimony of loved ones may be disregarded.   

Amending the Probate Code to clarify due process in conservatorship proceedings could decrease violations of due process and depletion of estates.