When a court is making a determination of whether an individual needs a conservator appointed either for their person or their estate, the court has to decide if the proposed conservatee lacks capacity to provide for their personal needs, or to manage their financial resources or resist undue influence. All persons are presumed to have capacity to make decisions for their personal, financial, and medical matters. The court needs evidence of deficits in behavior, understanding, or memory linked to inability to carry out particular functions.
One of the many documents that must be filed for a conservatorship if the petitioner is seeking certain powers, is a Capacity Declaration—Conservatorship (Judicial Council Form GC-335). It is completed by the appropriate doctors, psychologist or religious healing practitioners. The Capacity Declaration is required when the allegations are made that the proposed conservatee is unable to attend the hearing, if the proposed conservatee lacks capacity to give informed consent to medical treatment, or the proposed conservatee has a major neurocognitive disorder and would benefit from medications appropriate to the care of the major neurocognitive disorder or should be placed in a secured-perimeter facility. It is my practice to always obtain a Capacity Declaration even if my client is not making any of the allegations listed above. The only time that I have not obtained one is when my client was the proposed conservatee and he was voluntarily requesting that a conservator be appointed for his estate.
The Capacity Declaration should be mailed early to the appropriate medical professionals. The form must to be filed before the hearing and it sometimes can take a lot of time to get the document back from the individuals completing it. Also, if there are any issues with getting it completed, then you have sufficient time to file additional documents such as an Ex Parte Application for Order Authorizing Completion of Capacity Declaration—HIPAA (Judicial Council Form GC-333) if the medical professionals are unwilling to complete the document due to privacy laws. If approved, the petitioner will then have a court order that can be provided to the medical professional that protects them from any HIPAA violation claims.
If it is difficult to get a completed Capacity Declaration because the proposed conservatee objects to being examined or there is no treating physician or psychologist able to complete it, then there is a procedure for obtaining an order to have the proposed conservatee examined. It is found in the Code of Civil Procedure Sections 2032.010-2032.650. The result of this procedure, if successful, is that the court orders the proposed conservatee to submit to an examination.
Because the Capacity Declaration is essentially a “check-the-box” type form with only a few places for the medical professional to provide a narrative, I like to include some medically specific information in the Confidential Supplemental Form that must also be filed with the court. This can include specific diagnoses, recent health care crises, and if for a limited conservatorship, examples from the proposed conservatee’s daily activities.
Since the Capacity Declaration is a very important document in the conservatorship process, I sometimes will ask that a client obtain one in advance of preparing the rest of the documents. This is because if a medical professional will not state, under penalty of perjury, that the proposed conservatee lacks capacity, then there is no need to go to the time and expense of filing for a conservatorship and alternatives can be explored instead.