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What Medical Authority does a Limited Conservator of the Person Have Over a Limited Conservatee?

by | Feb 23, 2023 | Firm News

The authority that a limited conservator of the person has over a limited conservatee depends on what powers the court has granted the limited conservator of the person.

In a limited conservatorship, the court must specifically grant medical powers for the conservator to have any medical authority.  As discussed in a previous post, there are seven main powers that the court can grant a limited conservator and those are in Probate Code Section 2351.5(b).  Two of those powers that should be requested if the limited conservator wants to handle the medical decisions for a limited conservatee – first, access to the confidential records and papers of the limited conservatee; and second, the power of the limited conservatee to give or withhold medical consent.  A limited conservator will need these powers to carry out their duty to secure treatment, medical and psychological services to assist the limited conservatee to develop maximum self-reliance and independence.

For the court to grant the medical and confidential papers powers, the petitioner must show that the limited conservatee lacks the capacity to make medical decisions.  The details about why these powers are needed is typically provided in the Confidential Supplemental Information that is filed along with the Petition.  It is good to have specific examples.  Court appointed counsel, the local regional center, the probate court investigator and the doctor in a Capacity Declaration will address whether the limited conservatee has the capacity to make medical decisions.

One item that should also be specifically addressed in the filings is whether the limited conservatee has the capacity to execute an advance health care directive.  The capacity requirements for executing an advance health care directive are discussed in a separate post.  The ability to execute an advance health care directive is an alternative to a conservatorship.   Other alternatives are whether the director of a regional center or their designee is appropriate to consent to medical, dental, and surgical treatment of a regional center client.  This usually is considered if the person has no parent or existing conservator and they lack sufficient capacity to consent.

If a limited conservator has been appointed, but was not granted medical powers, then that conservator can consent to emergency medical treatment.  Also, they can separately petition the court for an order authorizing specific medical treatment.  This can happen in the event that oral surgery is required and someone has to sign the consent.  The limited conservator can petition for the specific authority to consent to the surgery.  However, if surgeries or other major medical procedures are expected, then it is best to try and get this authority when the limited conservator is appointed.  It can be difficult to obtain these powers through an ex parte petition if there is an urgency to obtain them.

The medical power granted to a limited conservator does not include the right to consent to involuntary placement in a mental health treatment facility, to administration of experimental drugs, to convulsive treatment, or sterilization.  A limited conservator has to specifically request authority to treat a conservatee’s major neurocognitive disorder which includes the right to consent to the administration of psychotropic medications or to place the conservatee in a secured-perimeter residential care facility or a locked and secured nursing facility.  There are provisions in the Probate Code where a limited conservator can specifically request the authority to have the limited conservatee sterilized or for the major neurocognitive disorder powers.  It is my experience that the court rarely grants the authority to sterilize a conservatee.

When I petition for the appointment of a limited conservator of the person and my client wants medical powers, I also request authority under Probate Code Section 2355.  If the court grants that request, then it is determined that the conservatee lacks capacity to make medical decisions and arguably can broaden the powers given the limited conservator.  I have recently had to argue for the need of those powers if the court is going to grant the limited conservator the medical powers.  I specifically refer to a conservatorship matter many years ago where the doctor was unwilling to allow the conservators to consent to birth control medication for a conservatee until I explained to the doctor that my clients had the authority under Probate Code Section 2355.

Next week I will address the medical authority that a general conservator has in a general conservatorship.