SUGGESTED INDUSTRY BEST PRACTICES Publication Date: May 2017
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TABLE OF CONTENTS OVERVIEW
1.0 PUBLIC ADMINISTRATOR AUTHORITIES BACKGROUND
2.0 PUBLIC GUARDIAN AUTHORITIES BACKGROUND
3.0 PUBLIC CONSERVATOR AUTHORITIES BACKGROUND
4.0 SUGGESTED BEST PRACTICE: PA|PG|PC CASELOAD SIZES
5.0 SUGGESTED BEST PRACTICE: PA|PG|PC FEES
6.0 SUGGESTED BEST PRACTICE: STAFF CLASSIFICATION & MQ
6.2 DISTINGUISHING CHARACTERISTICS
6.4 MINIMUM QUALIFICATIONS
6.4.3 KNOWLEDGE OF
6.4.4 ABILITY TO
7.0 SUGGESTED BEST PRACTICES: PA|PG|PC INVENTORY & APPRAISALS
7.1 ATTACHMENT 1
7.2 ATTACHMENT 2
7.3 PROBATE REFEREE: ATTACHMENT 2 AND SUPPORTING DOCUMENTS
7.3.1 REAPPRAISAL I&A
7.3.2 SUPPLEMENTAL I&A
7.3.3 CORRECTED I&A
7.4 PROBATE REFEREESâ€™ GUIDE
8.0 SUGGESTED BEST PRACTICE: PUBLIC ADMINISTRATOR
8.1 REFERRALS/INTAKE/BEGINNING AN INVESTIGATION
8.1.1 SAFEGUARDING ASSETS
8.1.2 NEXT OF KIN
8.2 DISPOSITION OF REMAINS
8.2.1 DEATH OF INDIGENT PERSON OUTSIDE OF COUNTY OF RESIDENCE
8.2.2 FUNERAL ARRANGEMENTS AND SERVICES
8.3 ASSET SEARCHES
8.4 OPENING ADMINISTRATION
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8.4.1 DETERMINING TYPE OF ADMINISTRATION
8.4.3 FORMAL PROBATE
8.4.4 SUMMARY DISPOSITION
8.5 PETITION TO PROBATE DEDENT ESTATE
8.5.1 NOTICE TO GOVERNMENT AGENCIES
8.5.2 MARSHAL AND SAFEGUARD ALL ESTATE ASSETS
8.5.3 INVENTORY OF ALL REAL AND PERSONAL PROPERTY
8.5.4 MARSHALING OF FINANCIAL ASSETS
8.5.5 NOTICE TO POTENTIAL CREDITORS
8.5.6 ALLOWANCE OR REJECTION OF CREDITORâ€™S CLAIMS
8.6 CLOSING ESTATE ADMINISTRATION
8.6.1 TAX REVIEW
8.6.2 STATEMENT OF PROPERTY DISPOSITION AND DISTRIBUTION
8.6.3 DEBT PRIORITY PAYMENTS FROM THE ESTATE
9.0 SUGGESTED BEST PRACTICE: PUBLIC GUARDIANS|CONSERVATORS
9.1 CONSERVATORSHIP OVERVIEW
9.1.2 LPS CONSERVATORSHIP CRITERIA
9.1.3 PROBATE CONSERVATORSHIP CRITERIA
9.1.4 PROBATE CONSERVATORSHIP ACCEPTANCE CRITERIA
9.1.5 LPS ACCEPTANCE CRITERIA
9.1.6 NEED FOR CONSERVATORSHIP
9.1.7 SUBSTANTIATING EVIDENCE FOR CONSERVATORSHIP
9.2 CONDUCTING PERIODIC CONSERVATEE VISIT/REVIEWS
9.2.1 BASIC VISITATION PRINCIPLES
9.2.2 FREQUENCY OF VISITS
9.3 MEDICAL AND END OF LIFE DECISION
9.3.1 INFORMED CONSENT
9.3.2 STANDING IN PLACE OF THE CONSERVATEE
9.3.3 BEST INTERESTS OF THE CONSERVATEE
9.3.4 MEDICAL DECISION MAKING AND TREATMENT
9.3.5 WITHHOLDING OR WITHDRAWAL OF LIFE SUSTAINING MEDICAL TREATMENT AND/OR HOSPICE
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PREAMBLE In an effort to standardize key service delivery policies the California Association of Public Administrators, Public Guardians and Public Conservators (CAPAPGPC), is taking a leadership role in creating Best Practices Guidelines. The CAPAPGPC Best Practices committee used the National Guardianship Association Standards of Practice and responses to the best practices survey sent to all California counties as criteria in developing these guidelines.
The California Association of Public Administrators, Public Guardians and Public Conservators (CA PAPGPC) offers the following Best Practice Guidelines to establish, support, promote and enhance best practices in PAPGPC Offices throughout the State. The CA PAPGPC Association Executive Board recognizes PAPGPC Offices are structured differently across California’s fifty-eight (58) Counties. Different organizational structures, caseloads, demographics, agency resources and funding may result in some functions being managed differently while still meeting the duties and obligations of the local PA PG and/or PC. Within the scope of powers and authorities given to a PA PG PC there is opportunity to use discretion and reasonableness when establishing County standards so as to provide localized services in keeping with community values and local Court rules . These Best Practices Guidelines were developed to support and empower PAPGPC Offices to begin or advance the establishment of minimum standards. The information herein is designed to help educate County decision-makers and provide support from the CA State Association to County PAPGPC Offices to secure necessary staff and resources to meet the fiduciary, ethical, and functional duties, which is fundamental to reduce liability, as we seek to provide high quality service to our counties. The CA PAPGPC Association Executive Board invites Public Administrators, Public Guardians and Public Conservators across the State to consider these Best Practice Guidelines as a resource tool. WE’D LIKE TO THANK THE FOLLOWING PA|PG|PC TEAM IN COMMITTING TIME AND RESOURCES TO PUT THIS GUIDE TOGETHER FOR THE ASSOCIATION AND IT’S MEMBERSHIP. THANK YOU. Christine Koper - Sonoma County PA|PG|PC Office
Glenda Jackson - San Bernardino County PA|PG|PC Office
Michelle Pennington - San Joaquin County PA|PG|PC Office
Emily Galimba - Alameda County PA|PG|PC Office
Linda Samson - Riverside County PA Office
Donna McMillian - Kern County PA Office
Susan Falcone - Sonoma County PA|PG|PC Office Page | 4
OVERVIEW PURPOSE To provide criteria for suggested â€œbest practicesâ€? so as to enable cohesive statewide delivery of PAPGPC services.
HISTORY The California Association of Public Administrators, Public Guardians and Public Conservators Suggested Best Practices Guide (the Guide) grew out of an idea presented at the conference 2011 managers meeting. As a result of the resounding support among those in attendance a Suggested Best Practices Committee was formed. Per usual members attending conference were encouraged to join the committee as well. The committee, made up of managers and line staff, began its work in January of 2012. While the committee membership has changed over the ensuing years the commitment to bringing the Guide forward has not waivered. The initial subject matter of the Guide was selected based upon priorities set by the members. Practice areas were presented to county PAPGPC managers requesting input regarding prioritization: high, medium and low. The initial Guide represents those practice areas that received the high priority designation from the majority of the respondents. In the spring of 2012 all counties were asked to participate in a survey intended to gather state wide practice data regarding staff minimum qualifications, case load sizes, fees and end of life decision making. For those practice areas that did not lend themselves to standard data collection the committee consulted industry standard documents, such as the National Guardianship Association Best Practice Guide and the Multi Services for Seniors Program regulations, as well as consulted with known experts within our Association. The Guide is intended to be a dynamic document that will grow and change according to member needs and the ongoing vagaries of applicable law. The Board wishes to thank the many members who contributed to this project over the years and encourages members to continue to participate in developing this Guide.
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1.0 PUBLIC ADMINISTRATOR AUTHORITIES BACKGROUND Pursuant to California Probate Code §7601 (a) the Public Administrator (PA) “If no personal representative has been appointed, the public administrator … shall take prompt possession or control of property of a decedent in the county that is deemed by the PA to be subject to loss, injury, waste or misappropriation…” or that the court orders into the possession or control of the PA. Probate Code §7601 (b) If property is beyond the ability of the PA to take possession or control, the PA is not liable for property of which it is unable to take possession or control. Once the decedent’s property has been secured and/or marshaled for safeguarding, the PA shall perform a diligent search for a will, final disposition instructions, next of kin, and other property, both real and personal, belonging to the decedent. Each estate is unique. While there are many standard activities throughout the probate process, there are also factors, which may require additional or different procedures. These variances and unique circumstances are part of the reason proper case management is critical to help ensure the PA meets the mandates of estate administration. Once the PA receives a referral there are several actions that must be taken promptly. Some activities may happen simultaneously and some follow a time line continuum. If those with a higher priority are unwilling or unable to act, the PA shall promptly petition for appointment, accept appointment when ordered by the court, or summarily dispose of an estate. Upon appointment by the court or summary disposition pursuant to §7660, the PA is responsible to properly manage all aspects of estate administration. There are many steps involved in the investigation of referrals and the determination to accept a case. It is important to document time spent performing activities so as to prepare for fees or costs that may be claimed in the future.
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2.0 PUBLIC GUARDIAN AUTHORITIES BACKGROUND Pursuant to Probate Code (PC) § 1800.3 (a) A conservator of the person may be appointed for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter…, (b) A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence…. The PG is additionally directed by PC § 2900 – § 2944. Per PC §2920 (a) If any person …in the county requires a .... conservator and there is no one else who is qualified and willing to act…. (1) The public guardian shall apply for appointment as …… conservator of the person, the estate, or the person and estate, (2) The Public Guardian may apply ….in all other cases. The PG shall also petition for Probate conservatorship of the person and/or estate if ordered to do so by the court [PC §2920 (b)]. The PG is recognized as the conservator of last resort. PC §1820-§1835 covers establishment. Based on evidence, the court decides the conservator’s authority. • A conservator of person must choose the least restrictive, appropriate placement. Unless granted “Dementia Powers”, covered by PC §2356.5, the conservator can’t authorize psychotropic drugs or place in a locked or secure-perimeter facility. Regardless of authority, no …conservatee may be placed in a mental health treatment facility…, [PC §2356 (a)]. •
A conservator of estate …has the management and control of the estate and, in managing and controlling the estate, shall use ordinary care and diligence [PC §2401 (a)].
Probate Conservatorship have specific reporting requirements and is reviewed by the court after the first year and annually thereafter, including accountings of estate as appropriate [PC § 2620(a)]. The PG shall be paid reasonable expenses incurred in the execution of the conservatorship [PC §2942(a)]. While there are many standard activities, each client situation is unique. The client’s needs and situation must be handled with compassion for the client and an eye on the law. The Probate Code’s complex and often changing laws govern PG conservatorships. If in doubt as to the appropriateness of any action, check with Probate Code or County Counsel, or both.
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3.0 PUBLIC CONSERVATOR AUTHORITIES BACKGROUND Pursuant to Welfare and Institutions Code (WIC) § 5350.1 the purpose of a LPS conservatorship is to provide individualized treatment, supervision and placement. A conservator of the person, of the estate, or of the person and estate may be appointed for any person who is gravely disabled: unable to provide for the basic needs of food, clothing and shelter as a result of a mental disorder or impairment of chronic alcoholism. (WIC § 5350) The procedure for establishing and administering and terminating a LPS conservatorship shall be the same as provided in Probate Code, except as follows: (a) A conservator may be appointed for a gravely disabled minor (b) (1) Appointment of a conservator under WIC § 5008 (A)(1)(h) ...…. shall be subject to the list of priorities in Section § 1812 of the Probate Code unless the officer providing conservatorship investigation recommends otherwise to the superior court (2) In appointing a conservator as defined in WIC § 5008 (B)(1)(h) (murphy conservatorship) - The court shall not appoint the proposed conservator if the court determines that the appointment of the proposed conservator will not result in adequate protection of the public. In each county the governing board (board of supervisors) shall designate the agency or agencies to provide conservatorship investigation as set forth in this chapter, otherwise known as the County Conservatorship Investigator. The governing board may designate that conservatorship services be provided by the public guardian or agency providing public guardian services. (WIC § 5351) The County Conservatorship Investigator shall investigate all available alternatives to conservatorship and shall recommend conservatorship to the court only if no suitable alternatives are available. (WIC § 5354). The public guardian shall serve as conservator of any person found by a court to be gravely disabled, if the court recommends the conservatorship and if the court finds that no other person or entity is willing and able to serve. (WIC § 5354.5) Pursuant to Welfare and Institutions Code § 5358.1: Neither the conservator, temporary conservator or public guardian appointed pursuant to this chapter….shall beheld civilly or criminally liable for any action by a conservatee. Depending on the powers granted by the court the public guardian as conservator has authority and responsibility regarding placement, psychiatric treatment including psychotropic medications, medical consent, and estate powers. Placement for those gravely disabled under § 5008(A)(1) (h) is in the least restrictive placement and for those on a Murphy conservatorship in a placement that achieves the purposes of treatment and protection of the public.
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4.0 SUGGESTED BEST PRACTICE: PA|PG|PC CASELOAD SIZES •
Public Guardians/Conservators should limit each caseload to a size that allows the conservator to accurately and adequately support and protect the conservatee and/or the estate, that allows a minimum of one visit each 90 days with each conservatee, and that allows regular contact with all service providers and monthly review of the estate.
Public Administrators should limit each caseload to a size that allows the administrator to accurately and adequately protect the estate, that allows a minimum of one visit per quartier to each piece of real property, quarterly review of each estate and associated assets and regular contact with all service providers.
The size of any caseload must be based on an objective evaluation of the activities expected, the time that may be involved in each case, other demands made on the conservator/administrator, and ancillary support available.
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5.0 SUGGESTED BEST PRACTICE: PA|PG|PC FEES •
Public Administrators/Guardians/Conservators are entitled to reasonable compensation for their services. Compensation may be in addition to statutory fees.
The conservator/administrator shall bear in mind at all times the responsibility to conserve the estate when making decisions regarding providing services and charging a fee for those services.
All fees related to the duties of the conservatorship/estate administration must be reviewed and approved by the court. Fees must be reasonable and be related only to conservatorship/estate administration duties.
Factors to be considered in determining reasonableness of fees include: o Powers and responsibilities under the court appointment; o Necessity of the services; o Time required; o Degree of difficulty; o Skill and experience required to carry out the duty; o Needs of the conservatee/estate; and o Costs of alternatives.
Fees or expenses charged by the conservator shall be documented through billings maintained by the conservator/administrator. If time records are maintained, they shall clearly and accurately state: o Date and time spent on a task; o Duty performed; o Expenses incurred; o Collateral contacts involved; and o Identification of individual who performed the duty (e.g., conservator/ administrator, staff, volunteer).
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6.0 SUGGESTED BEST PRACTICE: STAFF CLASSIFICATION & MQ 6.1
Under direction Public Administrator/Guardian/Conservator staff completes investigation into the need for conservatorship or estate administration. Staff acts as the coordinating County agent in any one of the following: • Provision of custodial care and treatment of adults, who have been adjudicated and found gravely disabled under the auspices of the California Welfare and Institutions code, Lanterman-Petris-Short act; •
Provision of custodial care and treatment of frail older or dependent adults and/or their estates who have been adjudicated under the auspices of the California Probate code as no longer able to act on their own behalf to make decisions in their own best interest or resist fraud or undue influence;
Management of decedent estate assets, including real and personal property, to maximize the benefit to the estate;
Obtain and monitor appropriate services for the conservatee or estate;
Coordinate the liquidation of estate assets.
Staff at the journey level provides investigation, case management and estate administration services in accordance with the California Welfare and Institutions code, California Probate Code, local Court rules, local County policies and individual Department procedures. Incumbents exercise a high degree of initiative and independent judgment. Incumbents act as the County agent maintaining a comprehensive plan for conservatee care and estate administration.
PAPGPC staff classifications should mirror the County’s social work classifications in pay and escalating responsibility. PAPGPC staff classifications should move in flights from entry level to journey level as experience and program specific training are attainted. PAPGPC staff at the journey level should be classed as equal to journey level social work staff providing County services under general direction.
6.4.1 Education Graduation from an accredited college or university with a degree in the social or behavioral sciences, business administration, public administration, law or accounting,
Or A combination of 60 unit s college or university course work in the social or behavioral sciences, business administration, public administration, law or accounting; and two years of specific experience, with increasing responsibilities, providing conservatorship, estate management, case management, or legal representation to older, dependent or mentally ill adults. Page | 11
6.4.2 Certification Within four years of appointment obtain certification issued by the California Association of Public Administrators, Public Guardians and Public Conservators under the standards and certification requirements set forth by the Association and maintain certification while employed in the position. 6.4.3 Knowledge of General obligations of estate administration and conservatorship; basic investigative procedures, interviewing techniques, general financial management and record keeping principles; basic psychological and physiological disorders and social issues associated with incompetent older adults and adults who are gravely disable by reason of an axis one mental disorder; modern office technology and procedures, including electronic record keeping; professional report writing and document production.
6.4.4 Ability to Read and interpret case related materials, such as California code sections, medical and psychiatric chart notes, financial records, tax documents and legal documents; plan, organize and prioritize high volume work load according to strict time constraints; conduct neutral investigations and interviews; make determinations and decisions based on logical analysis of investigative findings; maintain professional demeanor in high pressure situations interacting with clients, family members or community members who may be under emotional stress, suffering from mental illness or who are uncooperative, inflexible, agitated, upset or hostile; establish and maintain positive working relationships with service providers, other agencies, family members and other community members representing divergent cultures and backgrounds and maintain files, records and reports in an accurate, timely and through manner. Pass background check including but not limited to: criminal, financial, education, drug and employment.
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7.0 SUGGESTED BEST PRACTICES: PA|PG|PC INVENTORY & APPRAISALS Pursuant to Probate Code § 2610 and § 8901, the conservator or estate administrator shall file an inventory of property in the conservatee/decedent estate accompanied by an appraisal.. The Inventory and Appraisal (I&A) serves to: a) Inform the Court, Conservatee, heirs, family and creditors of the extent and value of the estate b) Sets the initial estate value for which the fiduciary is responsible, including future accountings. c) Sets the minimum sales price for real property (Probate Code § 10309) d) Protect the fiduciary against claims e) Support fee computation in decedent estate matters The I&A is a public record and must be filed within 4 months of the issuance of letters of Administration in a PA case and within 90 days of appointment of the Estate (temporary or permanent) in a PG/PC case. The information in the I&A determines the estate’s value which in turn determines the administrative fees, disbursements, creditor payments, and tax payments The I & A is one document which consists of three parts: a) Judicial Council Forms DE-160/GC-040 b) Attachment 1- for cash assets c) Attachment 2- for non-cash assets *Note: some fiduciaries choose to use an additional attachment that is not a Judicial Council form; the intention of the additional attachment is to report property known to the conservator/estate administrator but not in their possession. For example out of state property, property under the control of another or property in a Trust. Consult with your County Counsel and your local rules regarding using such an attachment.
Property listed on Attachment One (1), shall have an undisputed and defined value (see Probate Code § 8901 and 2610 (c)): Assets such as: • Money and other cash items. •
Checks for wages earned before death; issued before death or date of appointment.
Checks for refunds, reimbursements, and payments due to decedent or conservatee before death or date of appointment
Accounts in financial institutions
Money market mutual funds with a per share value of one dollar ($1); no more or no less Page | 13
Proceeds of insurance policies, retirement plans, and/or annuities payable upon death.
Property listed on Attachment 2 are assets for which value may vary and therefore are appraised by the Probate Referee, and may be prior appraised by a third party appraiser. Attachment Two (2) may include, but is not limited to, the following property: • Real property •
Personal property such as: o Household furniture and furnishings o Vehicles, water craft and mobile homes ( mobile homes can at times be considered real property; be sure to check registration) o Jewelry, art and collectibles o Weapons such as rifles and hand guns o Coin collections o Rare and/or unique items
Stocks, bonds, and business interests
PROBATE REFEREE: ATTACHMENT 2
Provide the I&A to the Probate Referee as well as any supporting documents regarding the items on Attachment 2. The supporting documents may include, but are not limited to, the following: • Valuation information provided by a third-party appraiser. o Coins o Guns o Art, etc. •
Statements from the Secretary of State and/or company officer deeming the security to be appraised worthless.
Any “blue book” information, which can be ascertained on a vehicle.
Pictures or other documentation concerning the condition of the property to be valued
Information pertinent to the appraisal of real property. o Factors affecting the property value. §
Condition; positive and negative
Accessibility of utilities
o Copies of independent appraisals; Broker’s Price Opinion or Comprehensive Market Analysis. o Description of existing liens and/or easements, if any.
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Once the I&A has been delivered to the designated probate referee, the probate referee has sixty (60) days, after the delivery of the inventory , to return a completed appraisal or make a report of the status of the appraisal Upon receipt review the I&A for errors and/or areas of concern. It is advised to also review with your legal counsel. Once an I&A is filed, corrections and/or additions cannot be made without the filing of a corrected or supplemental I&A. The need for an additional I&A a rises when newly discovered assets are located, a new appraisal is required to allow for sale, or errors need to be corrected. The additional I&A which may be filed are: reappraisal for sale, supplemental, and corrected. 7.3.1 Reappraisal I&A A reappraisal for sale of real property may be necessary when the sale is to take place more than one (1) year from the date of death; a reappraisal should reflect any market changes which may affect the minimum acceptable price for the property. The minimum acceptable price is a ninety percent (90%) threshold, or reserve, of the appraised value pursuant to Probate Code § 9962. For example, if the real property is appraised by the probate referee at eighty nine thousand dollars ($89,000) the accepted purchase price can be no less than eighty thousand and one hundred dollars ($80,100). 7.3.2 Supplemental I&A A supplemental inventory and appraisal shall be necessary if the PA identifies and/or is made aware of additional estate assets which have not been previously reported on the original inventory and appraisal (see Probate Code § 8801). 7.3.3 Corrected I&A When an inventory and appraisal is filed with court and a mistake in the property description or value is noted, a corrected inventory and appraisal shall be filed. The corrected inventory and appraisal shall only include the assets to be corrected. The Judicial Council form shall be properly identified as a “Corrected Inventory and Appraisal” so estate assets are not recognized twice.
PROBATE REFEREES’ GUIDE
For further information on Inventories and Appraisals refer to The Probate Referees’ Guide; although this guide is not an official interpretation of the California Probate Code it was published in cooperation with the State Controller’s Office. The guide can be found online at http://www.sco.ca.gov/files-eo/probate_guide.pdf.
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8.0 SUGGESTED BEST PRACTICE: PUBLIC ADMINISTRATOR 8.1
R E F E R R A L S /I N T A K E /B E G I N N I N G A N I N V E S T I G A T I O N 8.1.1 Safeguarding Assets When property is deemed by the Pubic Administrator (PA) to be subject to loss, injury, waste or misappropriation, with or without court appointment, the PA shall make every effort to promptly safeguard a decedent’s property. The PA is not liable for loss, injury, waste or misappropriation of property for which it is unable to take possession or control. Probate code § 7601 (a) and (b). When it is deemed necessary to immediately safeguard estate assets the following steps should be considered: • Secure the residence. This may include boarding up doors and windows, changing locks, adding overlocks, and securing gates. •
Secure vehicles. This may include use of a steering wheel club or towing the vehicle to a secure location.
Marshal, Photograph and Inventory estate valuables that are easily misappropriated/stolen, such as: cash, jewelry, collectibles and weapons.
Arrange for the care of any animals; pets or livestock.
8.1.2 Next of Kin The next of kin (NOK) search is one of the fundamental first actions the PA’s Office when a new referrals is received. The decedent’s NOK, if any, have a higher authority than the PA to act; therefore, it is imperative to identify and notify NOK. Sometimes family may be unable or unwilling to act. NOK may choose to nominate the PA to act; or, if no one acts 180 days after the date of death in formal estates (Civil Code § 1420) the PA may act, or 40 days after the date of death in summary estates(Probate Code § 13100). Pursuant to Probate Code § 7600.5 and § 7600.6 when a death has occurred and family cannot be located or there is no known next of kin, mortuaries, hospitals, skilled nursing facilities, board and care homes, Coroners, Public Conservators/Guardians, and/or a public officer or employee, are required to notify the PA when the deceased has sufficient assets. To identify and locate NOK the following agencies and resources may be sources of information depending on local practices: • Superior Court: Searching the decedent on the Superior Court’s website may uncover an action filed with the court, such as a civil dispute or dissolution of marriage. These cases may provide leads when gathering NOK information and potential assets. •
Internet Searches: Pay-for-service providers such as CLEAR, Ancestry, Accurint, and TLO offer searchable databases that cull data shared across the internet from a variety of sources. These databases may provide valuable information and effective verification of leads for locating NOK. If a County does not have paid internet search service providers, Google, Facebook, and LinkedIn may offer leads as well.
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County Assessor/Tax Collector: Searching the County Assessor/Tax Collector’s website may be a resource for information regarding a relative that may have been on title.
Death Certificate: A working copy or a certified copy of the decedent’s death certificate has a reporting party’s name and may provide other beneficial information.
Title Company: Obtaining a preliminary title report from a title company may be a resource for information regarding a relative that may have been on title.
CJIS: The Criminal Justice Information Services (CJIS) may provide a potential NOK lead if the decedent had been arrested and/or served time in the county jail.
CLETS: The California Law Enforcement Telecommunications System* (CLETS) may identify potential assets such as vehicles and firearms registered in the name of the decedent. A registered co-owner may be a potential lead for NOK. *CLETS is restricted to access through a law enforcement agency. If your office is not part of a law enforcement office you may decide to contact a local agency to establish an MOU for specific information.
National Scheduling Center: The National Scheduling Center provides information regarding veteran status and may also provide potential NOK information.
The decedent’s residence provides the first opportunity to find NOK. Search for personal telephone books, the regular phone book (sometimes people write numbers in the phone book), telephone bill statements, business cards, holiday/birthday cards, letters or other correspondence, cell phone and computer contacts, if accessible, and check the answering machine if available.
In talking with NOK, friends, care facility representatives, and/or the referring party it is imperative to inquire if there may be information and/or written instructions made prior to death outlining a decedent’s wishes for final disposition. Additionally, a prompt and diligent search of the residence, safety deposit box, or storage unit for a will, Trust, Durable Power of Attorney for Health Care, or Pre-Need should be made as soon as possible. When searching for testamentary documents it is important to remember: • Testamentary documents may be scribbled on the back of envelopes, in notebooks or on other documents. Documents have been located taped to the bottom of a kitchen table, on the back of picture frames, in the nightstand, and pinned to refrigerators. •
When a will, Trust, or Pre-Need is located, the PA should make every effort to contact the person named to inform them of the death, and that they were named as Executor, Trustee/Successor Trustee, or person designated to handle final disposition. If the decedent’s executor, successor trustee, or NOK are unable and/or unwilling to act and the decedent has sufficient assets, pursuant to Health & Safety Code §7100 (9), responsibility devolves to the PA to handle final disposition.
Throughout the investigation the PA will interview a number of persons including, but not limited to decedent’s next of kin, friends, neighbors, employer, medical care provider, financial institution etc. It is imperative to inquire of each person if there may be Page | 17
information and/or written instructions made prior to death outlining a decedent’s wishes for final disposition
Consider the following when determining final disposition under the PA authority: • The decedent’s own wishes even when not formalized by a pre-need. •
The apparent solvency/insolvency of the estate
The wishes of the heirs or legatees
Previous arrangements by the decedent: final disposition of a pre-deceased spouse or child, if any
Religious preference 8.2.1 Death of Indigent Person outside of county of residence When a person dies outside of their county of residence, the Coroner/entity where the remains are held should contact the county of residence to assume responsibility and possession. If agreed upon by both parties, the County Indigent Decedent Program administrator in the county of residence may coordinate with the Coroner/entity where the remains are held to expeditiously find relatives and/or coordinate final disposition, as legally defined per Health & Safety Code §7100-§7104. 8.2.2 Funeral Arrangements and Services • Solvent Estates: The PA uses its discretion when making funeral arrangements. (See: Estate of Malgor, 77 Cal.App. 2d 535) Use reasonable care when making funeral arrangement; take into consideration that expenses are not disproportionate with the decedent’s standard of living. The Court, on its own motion, will take action to disallow unreasonably large claims for funeral expenses. When the estate is solvent the cost of funeral expenses shall be paid pursuant to Probate Code §11420. •
Veteran Benefits: Veteran status and benefits eligibility must be confirmed with the National Scheduling Center. Not all persons who served in the armed forces are eligible for burial in National Cemeteries and/or burial cost reimbursements. Eligibility of benefits is based on service time and type and can be revoked based on certain types of discharge from service and or criminal convictions after service. (Don’t assume a veteran has benefits; first confirm with the National Scheduling Center).
Spouses of veterans who died with eligibility also have eligibility for burial in National Cemetery.
Adult disabled issue of veterans who died with eligibility also have eligibility for burial in National Cemetery. Confirm Eligibility of Benefits o Call the National Scheduling Center 1-866-535-1117 or fax 1-866-535-1117 and request status of veteran’s eligibility for benefits. Benefits may include burial in a National Cemetery, allowance for a casket, internment other than National Cemetery and/or transportation benefit. o If the person is eligible for veteran’s burial benefits, an eligibility number is issued. Page | 18
Use the eligibility number to coordinate internment at the National Cemetery;
Use the eligibility number to apply for veteran’s burial benefits in addition to the internment;
Use the eligibility number to apply for a burial flag from US Post Office.
Railroad Retiree Benefits: Railroad retirees/beneficiaries may have death benefits; see http://www.RRB.gov for benefits.
Indigent Cremation and Burial Program: If an estate is insolvent final disposition should be referred to your County’s indigent cremation and burial program. This may be handled by the Coroner, PA, or another designated County office. Follow your County’s established guidelines.
Abandoned Cremated Remains: Each county is required to manage any abandoned cremated remains that come into its possession. The PA shall notify the Coroner’s Office to report all instances of abandoned cremains located during the investigation and/or administration of a PA estate. Please follow your County’s established guidelines. These guidelines typically include performing NOK searches, investigate for VA eligibility, and arrangement for interment or scattering, potentially pursuant to the indigent program.
Cremains Found During Investigation: During the investigation and/or search of residence or personal property the PA may locate cremated remains. If the cremains were permitted to reside in the residence and the PA intends to sell the residence, the PA must contact the Coroner and request the Death Certificate be amended to reflect the new final resting place/internment of the cremains.
Pursuant to Probate Code § 7602 the PA is authorized to take possession or control of property of a decedent and shall make a prompt search for other property, a will and instructions for disposition of the decedent’s remains. Searches of real or personal property are completed by two (2) or more staff members; or one staff person and an independent witness depending on each county’s policy; during the search, a team members remain in the line of sight of each other If a preliminary search to safeguard assets was warranted and was cursory in nature a thorough and diligent search must be performed as promptly as possible. If the residence is a rental/lease, before going to the residence it is vital to contact the landlord and/or real property owner to arrange for access. If instructions for disposition of the decedent’s remains are found, the PA shall promptly deliver the instructions to the person upon whom the right to control disposition of the decedent’s remains devolves as provided in Health and Safety Code § 7100. Veteran’s may identify a person on his/her emergency data maintained by the Secretary concerned (DD Form 93 or any successor to that form), as the person Authorized to Direct Disposition (PADD), regardless of the relationship of the designee to the decedent.
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In searching the decedent’s residence, there may be a work-desk type area where address books, a computer, mail, bank and credit card statements, and other pertinent documents are kept. Documents to marshal include, but are not limited to: • Estate assets subject to probate and possible value and lien information. •
The existence of a will or Trust.
Documents indicating the decedent completed a pre-need.
Information and leads to identify next of kin, or possibly close friends with information.
Financial institution(s) statements with account(s) information.
Information on potential insurance policies, death benefits, etc.
Additional estate assets including real and/or personal property.
• Potential creditors of the estate Safety Deposit Box In addition to searching the decedent’s last known residence, real property or personal property, the PA’s investigation prior to issuance of Letters in formal estates and during initial investigation of summary estates includes the search of known safety deposit box(es) pursuant to Probate Code § 331. • Inventory the contents of the safety deposit box; •
Photocopy any and all testamentary documents including instructions for final disposition of the decedent’s remains;
After photocopy remove the original will, Trust, and instructions for final disposition o Will - contact the executor of the will and ensure the will is lodged with the court within thirty days after death (See Wills) o Trust - contact the Trustee of the Trust (See Trusts) o Instruction for final disposition of remains
contact the named person;
if no named person contact the NOK (See H&S § 7100)
if veteran form DD Form 93 contact designated person
OPENING ADMINISTRATION 8.4.1 Determining Type of Administration Not all estates require a formal probate proceeding. The character of estate assets dictates the appropriate type of probate proceeding under which to administer the estate. To determine the character, consider the following factors: • Is there a Will or Trust? •
How is title held? Joint Tenants? Community property? Right of Survivorship? Separate?
What’s the total value of all assets?
Have beneficiaries been designated? Answering these questions will help the PA determine the appropriate type of estate administration; formal or summary proceeding. •
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8.4.2 Wills If an original Will is located it must be lodged with court regardless of the way in which an estate will be administered. Pursuant to Probate Code § 8200, the original Will must be lodged within thirty (30) days after having knowledge of the death. The Will may be lodged as an attachment with the petition for probate as long as the petition is filed within the designated timeframe. A copy of the will must also be provided to the executor if their location is known, and/or to the beneficiaries named in the will. 8.4.3 Formal Probate Pursuant to Probate Code § 7620, the PA shall promptly petition for appointment as personal representative if no person with higher authority has and the estate’s value is greater than one hundred fifty thousand dollars ($150,000). A formal probate proceeding may require all of the following actions: • Petition for Probate, as required by PC § 8002 •
Notice to Government Agencies, as required by PC § 9202, § 215, § 216 and § 1215
Marshaling/Safeguarding of all real and personal property
Inventory of all real and personal property
Marshaling of financial assets
Notice to potential creditors
Inventory and Appraisal(s)
Sale of real and personal property
Allowance/Rejection of Creditor’s Claim
Priority payments from estate
First and Final Accounting
Discharge Please note; depending upon the case complexity and time until completion, the Court may expect a Status Report may arise during the course of estate administration. •
8.4.4 Summary Disposition § 7660 (A) (1): If the value of the estate exceeds fifty thousand dollars ($50,000) but does not exceed one hundred and fifty thousand dollars ($150,000) or the amount currently set by § 13100, the PA may petition the court for summary disposition. An order for summary disposition may be made by filing an ex parte application. The application for summary disposition of an estate must include all of the information outlined in Probate Code § 8002. § 7660 (A) (2): If the value of the estate does not exceed fifty thousand dollars ($50,000) the PA is authorized to issue a written certification of Authority for Summary Disposition. Page | 21
Pursuant to Probate Code § 7660(a)(2), et seq., an Authority for Summary Disposition may be used to marshal all financial assets. The Authority for Summary Disposition also prescribes all powers and duties to the PA pursuant to Probate Code § 9650. It is highly recommended that your written certification includes an attachment which provides all language found in Probate Code § 7660 and § 7661.
PROBATE DEDENT ESTATE
When filing a petition for probate you must include all of the following information (Probate Code § 8002): • The location and date of the decedent’s death •
The decedent’s residence at the time of death
The name, age, address and relation to the decedent of each heir and devisee
The character and an estimated value of the estate’s assets
The petitioner’s information 8.5.1 Notice to Government Agencies The PA has ninety (90) days from the issuance of Letters of Administration (LOA) to notice Department of Health Care Services (DHCS), Franchise Tax Board (FTB) and, when necessary, California Victim Compensation and Government Claims Board (CVCGCB) of the decedent’s death. In addition to the agencies above, notifying Social Security Administration (SSA) is recommended. If the decedent was an SSA recipient the agency will need to stop benefit payments. 8.5.2 Marshal and Safeguard All Estate Assets During the course of an investigation, the PA shall safeguard all real and personal property to protect against loss, injury, waste or misappropriation. If property is beyond the ability of the PA to safeguard and/or marshal, then the PA is not responsible to marshal that property. It is a priority duty of the PA to safeguard an estate’s real and personal property throughout the course of administration. Property not marshaled during the investigation, should be marshaled at the start of administration. Safeguarding real property during the course of administration may include: • Establishing utilities •
Securing residence Establishing utilities is necessary if an alarm is installed to secure the residence, or lights are left on to give an occupied appearance. Utilities should be established in the name of the estate; doing so allows this estate expense to be easily tracked. An EIN will be required to establish utilities in the name of the estate. You may apply for an estate EIN online. Visit https://sa.www4.irs.gov/modiein/individual/index.jsp for the online application. The following information is required to complete the online application: •
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Date the estate was created (date of probate)
Decedent’s name and social security number
Responsible party ( the PA, not the individual deputy) name and EIN Purchasing insurance for real property of the estate is a must. Insurance coverage protects the PA from liability if theft or damage occurs during the course of administration. The methods taken to secure the residence may vary from estate to estate. Methods to consider are: installing alarms, changing locks, boarding up windows/doors, routine property checks, chaining/locking gates, etc. Safeguarding personal property during the course of administration may include: • Transporting property to PA warehouse •
Transporting property to PA vault or safe
Securing property in residence All valuables, which may be easily liquidated, should be removed from the residence as soon as possible. These valuables include, but are not limited to: cash, jewelry, guns, expensive/new electronics, and coin collections. These items are best secured in a PA warehouse, vault or safe. As a matter of fiduciary responsibility and for county liability concerns it is never appropriate for county employees, at any level, to store property in their own homes, garages ect. Seek your county’s assistance in locating an appropriate secure storage option for decedent estate property. •
8.5.3 Inventory of All Real and Personal Property At the start of estate administration an inventory including photographs and an itemized list should be completed by a minimum of two employees, or one employee and an independent witness depending on your County policy. Depending on field circumstances or your county policies, inventories may be completed while the property is being marshaled, or after all personal property is marshaled and photographed in the field. A complete inventory list will prevent estate property being misidentified while in the PA warehouse, vault or safe. An inventory list will also assist in the Inventory and Appraisal process. The inventory list should include: • Estate name •
Name of employees present
Complete description of items
Individual line/description for valuables or unique items
Grouping of like items
A corresponding picture for each inventory item Page | 23
8.5.4 Marshaling of Financial Assets Estates • Formal o Certificate of Authority may be used prior/while awaiting LOA o (It is recommended that an official county seal be used on your Certificate of Authority. Embosser cost about $40) o Letters of Administration o Death Certificate (Some financial institutions accept the working copy of the death certificate for providing information about the decedent’s financial accounts. However, the same financial institutions may require a certified copy of the death certificate for release of funds.) •
Summary (a)(1) o Total value of the property in the decedent’s estates does not exceed $150,000 ( PC §13100) o Ex Parte Application o Certificate of Authority may be used while awaiting the Order Appointing o (It is recommended that an official county seal be used on your Certificate of Authority. Embosser cost about $40) o Death Certificate (Some financial institutions accept the working copy of the death certificate for providing information about the decedent’s financial accounts. However, the same financial institutions may require a certified copy of the death certificate for release of funds.)
Summary (a)(2) o Total value of the property in the decedent’s estate does not exceed fifty thousand dollars ($50,000). o The authority provided by PC § 7660(a)(2) may be exercised without court authorization.
o Certificate of Authority (it is recommended that an official county seal be affixed to the certificate) A financial asset may be a bank account, safety deposit box or life insurance policy. When a financial asset is identified every effort must be made to marshal in full. A Certificate of Authority (COA) should be used to marshal the financial asset. The COA should follow the same guidelines of the Authority for Summary Disposition (ASD) and include: • Decedent’s name •
Date of death
Reason for written certification
Reference to relevant Probate Code Page | 24
Date (important, only valid for thirty days)
PA signature In addition to the COA, a copy of the death certificate and LOA, Ex-Parte Order, or ASD should be attached. •
8.5.5 Notice to Potential Creditors Please note: A notice with information pertaining to creditors and contingent creditors of the estate should have been previously published pursuant to Probate Code § 8120 through § 8125. However, publication of notice of hearing of a petition to administer a decedent’s estate does not negate the need to notice potential creditors according to the following guidelines. Pursuant to Probate Code § 9050 the PA “… shall give notice of administration of the estate to the known or reasonably ascertainable creditors of the decedent”. Giving proper notice to creditors is beneficial to the estate and personal representative. When proper notice is given the time in which a creditor may file a claim is shortened and the personal representative’s exposure to liability is lessened. Reasonable diligent efforts shall be made by the PA to identify the decedent’s creditors. Often the PA has access to the decedent’s mail and files at the onset of administration; with this information, a reasonably diligent PA should create and continue to compile a list of potential creditors, as they become known throughout the course of administration. The timeline in which the PA shall give notice is outlined in Probate Code § 9051; (a) four (4) months after the date letters are first issued, or (b) thirty (30) days after the personal representative first has knowledge of the creditor. The format for notice to potential creditors is outlined in Probate Code § 9052. A Proof of Service of Notice shall be filed with court pursuant to Probate Code § 1261 for service by mail and Probate Code § 1264 for service by personal delivery. When notice is provided by mail, mailing the notice to an address belonging to the potential creditor is sufficient; it is not the duty of the PA to ascertain the address the potential creditor most prefers. As each estate administration follows a unique timeline, the PA should calendar the deadline for giving notice and keep documentation of the service date. When in doubt whether notice may be required : give notice. Pursuant to Probate Code § 9053(a); the PA is not liable for providing notice to a potential creditor when not required. However, pursuant to Probate Code § 9053(b), if the PA fails to give notice when required and the potential creditor establishes the failure was in bad faith the PA is liable. Always remember: The PA is not obligated to assist a potential creditor in filing a claim, as doing so may be perceived as providing legal advice and/or create a conflict within the PA’s fiduciary duty. Potential creditors requesting assistance from the PA should be advised to seek legal counsel.
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8.5.6 Allowance or Rejection of Creditor’s Claims Pursuant to Probate Code § 9151(b) – the personal representative may require satisfactory vouchers or proof to be produced to support the claim. Review the claim and supporting documents. It is important to confirm the amount of the claim based on the proof provided. Pursuant to Probate Code § 9250 – • When a claim is filed the personal representative shall allow or reject the claim in whole or in part. •
The allowance or rejection shall be in writing. The allowance or rejection shall be filed with the court clerk and give notice to the creditor as provided in Part 2 (Section 1200) of Division 3, together with a copy of the allowance or rejection.
The allowance or rejection shall contain the following information:
o The name of the creditor. o The total amount of the claim. o The date of issuance of letters. o The decedent’s date of death. o The estimated value of the decedent’s estate. o The amount allowed/rejected by the personal representative. o Whether the personal representative is authorized to act under the IAEA (Independent Administration of Estates Act Section 10400). o A statement that the creditor has ninety (90) days to respond in which to act on a rejected claim. The use of a form prescribed by the Judicial Council is deemed to satisfy the requirements of this section.
CLOSING ESTATE ADMINISTRATION
8.6.1 Tax Review The estate shall be sent for tax review at the end of administration, once all property is sold and all financial assets marshaled. The IRS has a specific set of thresholds on when it is necessary to file taxes. The thresholds are updated every year and should be referred to when deciding if an estate needs to go for tax review. 8.6.2 Statement of Property Disposition and Distribution To close out estate administration of a summary disposition a statement of property disposition and distribution must be filed with court. This statement must include: • Property that came into possession of PA
Disposition of all property
Receipts for all distributions
Pursuant to Probate Code § 7665 the PA must maintain a file/record of all expenditures and disbursements for a minimum period of three years. Page | 26
8.6.3 Debt Priority Payments from the Estate Pursuant to Probate Code § 11401 - “Debt” means; • A claim that is established under Part 4 (Section 9000 “Claims”) or that is otherwise payable in the course of administration. •
An expense of administration
A charge against the estate including, but not limited to, taxes, expenses of last illness, and family allowance. Pursuant to Probate Code § 11420 - Debts shall be paid in the following order of priority among classes of debts: 1. Expenses of administration incurred that are reasonably related to the administration of that property by which obligations are secured shall be given priority over obligations. •
2. Obligations secured by a mortgage, deed of trust, or other lien, but not limited to a judgment lien. 3. Funeral expenses 4. Expenses of last illness 5. Family allowance 6. Wage claims
7. General debts, including judgments not secured by a lien and all other debts not included in a prior class. If property in the estate is insufficient to pay all debts of any class in full, each debt in that class shall be paid a proportionate share.
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9.0 SUGGESTED BEST PRACTICE: PUBLIC GUARDIANS|CONSERVATORS 9.1
A conservatorship is established through a legal action, or proceeding. The person who files a petition with the court requesting that a conservator-ship be established is the petitioner. In this proceeding, the court orders the appointment of a person or organization (conservator) to act as a decision maker for another person (conservatee) who cannot care for himself/herself and/or manage his/her own finances. The court bases this decision on clear and convincing evidence that the proposed conservatee is unable to take action on his/her own behalf; all other less restrictive interventions have failed and there is no other appropriate alternative. Conservatorship is the intervention of last resort and should only be sought if the individual's judgment or decision-making is a major threat to the individual's welfare. The establishment of a conservatorship is a legal adjudication of the conservatee’s inability properly to provide for the conservatee’s personal needs or to manage the conservatee’s own financial resources, or both, depending on the allegations made and the determinations requested in the petition, and the effect of such adjudication on the conservatees basic rights. The Public Guardian (PG) or Public Conservator (PC) conducts the official County investigation into conservatorship matters. This investigation is done to collect evidence necessary to support the need for a conservatorship/conservator. This evidence should include specific examples of current behaviors of the proposed conservatee, which will show the incapacities the petitioner is trying to demonstrate. This might include the latest psychological report, any medical reports, medications compliance, current service or care plans, and any other current assessments. The PGPC also acts as the legally appointed guardian or conservator for persons found by Superior Court to be unable to properly care for themselves or their finances or who are unable to resist undue influence or fraud. 9.1.2 LPS Conservatorship Criteria A conservator of the person, of the estate, or of the person and the estate may be appointed for any person who is gravely disabled, unable to provide for their basic needs of food, clothing or shelter, as a result of a mental disorder and is in need of forced psychiatric treatment. Grave disability is the only legal criteria. LPS Conservatorships MUST be started by the designated County Conservatorship Investigator, usually a county’s Public Guardian or Public Conservator and may be initiated only upon the recommendation of those professional persons designated by law. Individuals may be referred, for LPS Conservatorships when functionally unable to provide for his/her basic personal needs, properly provide for his/her own personal needs for food, clothing, or shelter, due to a mental disorder in need of involuntary mental health treatment. Additionally, there must be no appropriate third party willing and/or able to provide for the proposed conservatee. 9.1.3 Probate Conservatorship Criteria Before a conservatorship can be created, the proposed conservatee must be found to lack capacity in certain regards, either to provide for personal needs, or to manage his or her financial resources or resist undue influence. Page | 28
The petition for probate conservatorship may be initiated by the person for himself, or by any other interested person except a non-relative creditor and may be filed privately, or upon recommendation, by the PG. Individuals may be referred to the PG, for Probate Conservatorships when functionally unable to properly provide for his/her own personal needs for physical health, clothing, food or shelter, and/or he/she is unable to manage his/her own resources or resist fraud or undue influence. 9.1.4 Probate Conservatorship Acceptance Criteria Based upon the evidence the person lacks capacity and is unable to make responsible personal decisions, and is also unable to meet his/her need, or to manage their financial resources or resist undue influence and there is no other suitable family, friend or relative that can be the conservator. • All less restrictive alternatives to conservatorship were considered and tried first and establishing conservatorship is the last resort to meet the person’s needs. 9.1.5 LPS Acceptance Criteria Based upon the evidence the person is gravely disabled as a result of mental disorder listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM) and there is no other suitable alternative to conservatorship. • The Causal link between the mental disorder and grave disability must be demonstrated in the evidence. Merely evidencing mental illness is not sufficient. The evidence must demonstrate how the mental disorder impedes the individual’s ability to provide for their basic needs of food, clothing and shelter. NOTE: Implementation of the LPS ACT varies from county to county depending on local Board of Supervisor’s directives, County Policies, Local Court rules and local community resources. The Karriker decision has clearly defined that the Public Guardian/Conservator has discretion when determining if a LPS conservatorship should or should not be established. 9.1.6 Need for conservatorship Conservatorship may not be necessary if the person who needs help can formulate or cooperate with a plan to meet his/her basic needs or has the capacity and willingness to accept assistance from a third party for financial or health-care decisions. It is important to recognize that a person’s need for decision-making support or for a decision maker (conservator) will vary and depend on his/her ability to make reasonable decisions 9.1.7 Substantiating evidence for conservatorship There is a legal presumption of the capacity of the proposed conservatee. The burden of proof is on the petitioner. The standard of proof for a LPS conservatorship is beyond a reasonable doubt; the standard of proof for a Probate is clear and convincing evidence. • The person is incapacitated •
The person needs the supervision and protection of the Conservator
There are no appropriate alternatives that exist which is less restrictive Page | 29
Person chosen to act as Conservator is in the best interest of the proposed conservatee, is willing and able to serve. Determining incapacity requires assessing three factors: Impairment, Functional Capacity and Decisional Capacity. • Impairment generally refers to a person’s diagnosed disability or medical condition, which may affect the person’s decision making skills. There is no statutory or legal definition of impairment, but it generally relates to a person’s functional capacity. •
Functional Capacity means a person’s ability to take action to meet personal needs, or demonstrated behavior which indicates he/she can take appropriate or necessary action to have their needs met. It must be determined whether and how well the individual can perform activities to meet personal needs and how much assistance is needed with decision making.
Decisional Capacity means a person’s ability to understand, make, and communicate responsible personal decisions to make sure his or her needs are met. This is similar to informed consent evaluations: o Is the person aware of an unmet need or inability in managing personal needs? o Is the person aware of alternatives available to meet these needs? o Is the person able to express a choice? o Does the person understand and appreciate the choice made, and the risks and the benefits?
9.1.8 Assessments In order to determine if a person lacks capacity, that person’s skills and abilities to make and carry out decisions to meet his/her needs must be assessed. Assessments should be personalized and comprehensive with a multidisciplinary approach. Every attempt must be made to ensure that assessments are sensitive to the language, religion, gender, and cultural differences of the person being assessed, and they should involve, as much as possible, family and close friends of the adult. Assessments should not focus solely on a person's cognitive abilities (such as I.Q.) but on the decisions to be made and the person’s ability to understand what is required. A diagnosis of a mental illness alone will not indicate the need for a conservatorship. Instead, look for how that person copes with living. • Medical: a medical assessment must be completed by a physician or medical specialist. This should include the person’s diagnoses, a list of any medications that may affect decision-making skills and abilities, and the results of testing to determine if there are treatable causes of the person’s impairment. •
Behavioral: a behavioral assessment should be completed by a psychologist, care provider, or behavior specialist. This should include an assessment of any behaviors and necessary interventions, which may affect the person’s decision-making skills and abilities.
Activities of Daily Living: an assessment of activities of daily living, such as getting dressed, cooking, personal hygiene care, household cleaning, budgeting money, paying bills, etc., should be completed by a care provider, social services provider, occupational Page | 30
therapist, or physical therapist. This should include an assessment of functional capacity to act on decisions to assure personal and financial needs are met.
Social History: a social history should be completed by the person, his or her family, and a social services provider. This should include: a background of the person, what led to incapacity, what does the proposed ward or protected person and the family, if appropriate, think of guardianship or conservatorship, and the person’s past and present decision-making skills.
Intelligence: an intelligence test may be completed by a psychologist or psychiatrist. This should include an assessment of decisional capacity to understand decisions that need to be made to meet personal and financial needs.
C O N D U C T I N G P E R I O D I C C O N S E R V A T E E V I S I T /R E V I E W S 9.2.1 Basic Visitation Principles The Public Guardian/Conservator shall conduct periodic visits/reviews with the Conservatee to ensure: • The Conservatee is in the least restrictive and most appropriate environment that meets his/her needs and wishes. •
That provision is made for the support, care, comfort, health and maintenance of the Conservatee.
That the medical, psychological, therapeutic, clothing, hygiene, food, social, legal, residential, recreational, training, educational and vocational needs of the Conservatee are being addressed, as appropriate.
9.2.2 Frequency of Visits • It is recommended that a face-to-face visit with the Conservatee be conducted at least every 90 days. o Courtesy visits between counties and visits made by county personnel from other departments/divisions with shared responsibility for a conservatee/estate may be substituted for a visit by PAPGPC staff. •
The visit should occur in the Conservatee’s residence to ensure the living environment is appropriate and able to meet the needs of the Conservatee.
The PGPC should assess the need for more frequent visits when any of the following (including but not limited to) variables are present: o The Conservatee is experiencing a decline in his/her physical or mental health, and acute hospitalization may be necessary. o There are concerns regarding the Conservatee’s living environment, care facility and/or care provider. o The Conservatee has voiced complaints which require investigation and/or resolution. o The Conservatee lives independently (i.e. own apartment, room & board, etc.). o There have been recent reports of criminal activity or Conservatee contact with law enforcement. o The Conservatee has had frequent absences from a care facility without authorization (i.e. AWOL). Page | 31
o The Conservatee has experienced recent suicidal ideation. o The Conservatee has been party to physical aggression or destruction of property. o The Conservatee has been non-compliant with medication and/or treatment. 9.2.3 Assessment A thorough assessment should include (but not limited to): • A review of the facility file/chart (if applicable), including documented changes in behavior
An interview with the Conservatee and care provider (if applicable)
A review of medications and compliance history
A review and evaluation of medical/dental/visual/psychiatric conditions/needs
A review of the cleanliness/odor and orderliness of the Conservatee’s living environment/placement (including a check for bugs or vermin problems)
An assessment of clothing needs
A visual check and chart review for decubitus ulcers, bruising, pain, etc. (If applicable)
An evaluation of social, emotional, substance abuse, transportation and/or vocational needs
An evaluation of food, nutrition, and hydration needs
An evaluation of whether or not the Conservatee’s budget needs adjusting
Identification of appropriate goals
An evaluation regarding discharge plans
9.3.1 Informed Consent All medical and end of life decisions made on behalf of the conservatee shall be made based on the following principles: The Court has found that the conservatee is unable to give medical consent and has granted medical decision making authority to the conservator under Probate code 2355. (Probate conservatorship only) or the Court has approved the disability removing the right to medical decision making that is not related to grave disability for LPS conservatorship. The conservator shall not provide direct service to the conservatee. The conservator shall coordinate and monitor services needed by the conservatee to ensure that he/she is receiving the appropriate care and treatment. The conservator shall engage the services of professionals as necessary to appropriately meet the needs of the conservatee. Decisions the conservator makes on behalf of the conservatee shall be based on the principle of informed consent. Page | 32
Informed consent is based on complete information regarding: • Adequate information on the issue; •
Voluntary action; and
Lack of coercion
Discussion and Understanding Risks and Benefits
Please consult your county counsel as local rules may require a separate petition for medical or end of life decision making.
9.3.2 Standing in Place of the Conservatee Substituted judgment is the principle of decision-making that substitutes, as the guiding force in any surrogate decision made by the conservator, for the decision the conservatee would have made when competent. It promotes the underlying values of self-determination and well being of the conservatee. Substituted Judgment is not used when following the conservatee's wishes would cause substantial harm to the conservatee or when the conservator cannot establish the conservatee's prior wishes. • The conservator stands in the place of the conservatee and is entitled to the same information and freedom of choice as the conservatee would have received if he/she were competent •
In evaluating the end of life decision, the guardian shall do the following: o Determine whether the conservatee has previously stated preferences in regard to end of life decisions; or executed an advanced directive such as a living will, power of attorney, POLST or other specific written of oral declaration of intent. o Have a clear understanding of the issue for which informed consent is being sought. o Determine the conditions that necessitate treatment or action. o Advise the conservatee of the decision that is required and determine, to the extent possible, the conservatee's current preferences. o Determine the expected outcome of each alternative. o Determine the benefit and the risk of each alternative. o Determine why this decision needs to be made now rather than later. o Determine what will happen if a decision is made to take no action. o Obtain a second medical opinion o Obtain information or input from family and from other professionals. o Obtain written documentation of all reports relevant to each decision. o As needed, or in accordance with local rules, seek instruction from the Court
9.3.3 Best Interests of the Conservatee • Best Interest is the standard of decision-making the conservator should use when the conservatee has never had capacity or when the conservatee's wishes cannot be determined. Page | 33
The Best Interest standard requires the conservator to consider the least restrictive, most normalizing, course of action possible to provide for the needs of the conservatee.
The Best Interest standard is used when following the conservatee's wishes would cause substantial harm to the conservatee, or when the conservator is unable to establish the conservatee's prior or current wishes. However, the conservatee's current and previously expressed wishes are considered in making the decision.
9.3.4 Medical Decision Making and Treatment • The conservator shall promote, monitor, and maintain the conservatee's health and well-being. •
The conservator shall ensure that all medical care necessary for the conservatee’s health and well being is appropriately provided; within the estate’s ability to pay.
If the conservatee has no living will, durable power of attorney for health care, or other advance directive declaration of intent that clearly indicates the conservatee's wishes with respect to medical intervention, a conservator will use the basic decision-making principles outlined above to make decisions about the conservatee's care.
In the event of an emergency, the hospital will be guided by the policy that has been established for the facility.
The conservator shall seek a second opinion for any medical treatment or intervention that would cause a reasonable person to do so or in circumstances where any medical intervention poses a significant risk to the conservatee. The conservator shall obtain a second opinion from an independent physician. The conservator may petition the Court for instruction.
Under extraordinary medical circumstances, in addition to using the basic decisionmaking principles outlined above, the conservator may enlist ethical, legal and medical advice, with particular attention to the advice of ethics committees in hospitals and long-term care facilities.
The conservator may speak directly with the treating or attending physician before authorizing or denying any medical treatment.
The conservator may petition the Court for instruction prior to authorizing or denying any medical treatment, presenting the evidence provided by the treating physicians, ethics committees, family members or other service providers.
The Court must make a determination as to whether an LPS conservatee lacks capacity to make medical decisions prior to the conservator authorizing any medical treatment. If it is determined that the conservatee lacks capacity the conservator may authorize routine medical treatment. “Routine” is frequently defined as “noninvasive” procedures and may include, but are not limited to, the following medical interventions: o Admission physical exam including lab work o Electrocardiogram if any cardiac symptoms arise o X-ray for cough o Ultrasound imaging o Antibiotics for inter-current infections o Treatment for hypertension when diagnosed Page | 34
o Routine dental care
9.3.5 Withholding or Withdrawal of Life Sustaining Medical Treatment and/or Hospice • There are circumstances in which it is legally and ethically justifiable for a probate conservator of the person to consent to the withholding or withdrawal of life sustaining medical treatment; placement in a hospice facility with a do not resuscitate order and /or provision of comfort care only. In making this determination, the conservator shall obtain the recommendation from two independent physicians and may seek authorization from the Court through a petition for instruction. In some Counties if a probate conservator has full medical decision making powers (2355) the Court may expect the conservator to make end of life decisions. Please consult with your County Counsel regarding local court rules or expectations •
In all cases there shall be a presumption in favor of the continued treatment of the conservatee, unless it is in the best interests to not do so. In the petition for instruction the conservator shall gather and document information as outlined in the basic decision-making principles outlined above and present the information to the court.
It is a good standard of practice to incorporate the consideration of a bio-ethics review in the assessment for end of life decisional making, if a bioethics review committee is available (generally when in acute facilities). The assessment of the bio-ethics committee should be included in the information presented to the Court in a petition for instruction or should be well documented in the conservator’s own record concerning the decision making process.
If a probate conservatee has expressed a preference regarding the withholding or withdrawal of medical treatment and/or placement in a hospice facility with an order not to resuscitate, the conservator shall follow the wishes of the conservatee. If the conservatee's current wishes are in conflict with wishes previously expressed when competent, the conservator may have the decision reviewed by an ethics committee or petition the Court for instruction.
For a LPS conservatee, if two physicians recommend the withholding or withdrawal of life sustaining medical treatment; placement in a hospice facility with an order not to resuscitate and/or comfort care only, the conservator must petition the court for instruction. If a LPS conservatee has expressed a preference regarding these procedures, the conservator shall document those preferences in the petition for instruction. The conservator shall gather and document information as outlined in the basic decisionmaking principles outlined above and present the information to the court.
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