This post discusses only a general probate conservatorship of the person and does not discuss an LPS conservator’s, a limited conservator’s, or a temporary conservator’s authority to make medical decisions for a conservatee.
Generally, a conservatee is presumed to have the capacity to give informed consent to medical treatment. However, there are four exceptions to this general rule that are detailed in the Probate Code.
First, if there is a medical emergency, then a conservator of the person has the authority to give medical consent. Second, where the court has ordered that the conservator of the person can consent to a narrowly defined medical treatment because the conservatee is unable to give medical consent. This is typically when there is a specific procedure that needs to be performed (i.e., a hysterectomy and the conservatee lacks capacity to consent to the surgery). Third, when the court has granted the conservator of the person exclusive medical authority under Probate Code Section 2355. In order for the court to grant this power, box 1.g. must be checked on the Petition for Appointment of Probate Conservator and has to be supported by a Capacity Declaration. Fourth, when a physician or other medical professional does not accept the consent of the conservatee and instead requires a court order.
A conservator of the person can give medical consent if the conservatee does not object. However, if the conservatee has a valid advance health care directive that has not been suspended by the court, then the powers of the agent under that document supersede the authority of the conservator of the person.
If the court did not grant the conservator of the person the authority to consent to medical treatment in the initial petition and either the general authority is needed or there is a specific medical procedure that is required, then a separate stand alone petition can be filed with the court. If an order is granted under Probate Code Section 1880, then it gives the conservator of the person general authority to consent to medical treatment. The order under Probate Code Section 2357 is only for a specific medical procedure.
A conservator of the person does not have the authority to place a conservatee in a mental health treatment facility against the conservatee’s will. The authority to involuntarily place a conservatee in a locked facility is only available in an LPS conservatorship. If a conservatee voluntarily enters a mental health treatment facility, then a conservator of the person will want good documentation that this was expressly voluntary. In reports to the court, a conservator must specifically allege whether the conservatee has been in a mental health facility and if it is shown that it was an involuntary placement, then the conservator of the person will be removed. And, arguably, they can be exposed to battery or false imprisonment charges.
There are specific Probate Code sections regarding the situation when the conservatee has been determined to suffer from a major neurocognitive disorder and the court has granted the conservator of the person the specifical authority to place the conservatee in a locked facility. Under this circumstance, the conservator of the person CAN place the conservatee in a locked facility. This must be specifically plead in either the initial petition or a subsequent petition, the diagnosis of a major neurocognitive disorder is supported by a Capacity Declaration and the conservatee has court appointed counsel representing them.
A conservator of the person cannot consent to the use of experimental drugs on a conservatee, cannot consent convulsive electroshock treatment, or consent to sterilization of a conservatee. An exception to the consent to the use of experimental drugs is if the conservatee has been determined to suffer from a major neurocognitive disorder and the court has specifically granted the conservator of the person the authority to consent to psychotropic medication for dementia treatment. There are some exceptions for treatments and medications under an LPS conservatorship. And, a limited conservator can request authority from the court to sterilize a limited conservatee.
An issue faced by many conservators of the person is how to handle end-of-life decisions. If a conservatee has an Advance Health Directive, the wishes expressed in that document must be followed. The agent designated in that document has priority in making those decisions unless the court has terminated those powers. If the conservatee does not have an advance health care directive, then the conservator of the person has the right to consent to the removal of life support, including nutrition and hydration. However, the conservator of the person has to consider the conservatee’s wishes, if known. If those wishes are not known, then the conservator of the person must determine the best interests of the conservatee. If there is no advance health care directive and the conservatee is conscious, the conservator of the person must present clear and convincing evidence that it is in the conservatee’s best interest to withdraw life-sustaining treatment. The case law surrounding this area illustrates the importance of having an advance health care directive.