SECTIONS 1880-1898 - California Statutes

PROBATE CODE

SECTION 1880-1898

1880. If the court determines that there is no form of medical
treatment for which the conservatee has the capacity to give an
informed consent, the court shall (1) adjudge that the conservatee
lacks the capacity to give informed consent for medical treatment and
(2) by order give the conservator of the person the powers specified
in Section 2355. If an order is made under this section, the letters
shall include a statement that the conservator has the powers
specified in Section 2355.

1881. (a) A conservatee shall be deemed unable to give informed
consent to any form of medical treatment pursuant to Section 1880 if,
for all medical treatments, the conservatee is unable to respond
knowingly and intelligently to queries about medical treatment or is
unable to participate in a treatment decision by means of a rational
thought process.
(b) In order for a court to determine that a conservatee is unable
to respond knowingly and intelligently to queries about his or her
medical treatment or is unable to participate in treatment decisions
by means of a rational thought process, a court shall do both of the
following:
(1) Determine that, for all medical treatments, the conservatee is
unable to understand at least one of the following items of minimum
basic medical treatment information:
(A) The nature and seriousness of any illness, disorder, or defect
that the conservatee has or may develop.
(B) The nature of any medical treatment that is being or may be
recommended by the conservatee's health care providers.
(C) The probable degree and duration of any benefits and risks of
any medical intervention that is being or may be recommended by the
conservatee's health care providers, and the consequences of lack of
treatment.
(D) The nature, risks, and benefits of any reasonable
alternatives.
(2) Determine that one or more of the mental functions of the
conservatee described in subdivision (a) of Section 811 is impaired
and that there is a link between the deficit or deficits and the
conservatee's inability to give informed consent.
(c) A deficit in the mental functions listed in subdivision (a) of
Section 811 may be considered only if the deficit by itself, or in
combination with one or more other mental function deficits,
significantly impairs the conservatee's ability to understand the
consequences of his or her decisions regarding medical care.
(d) In determining whether a conservatee's mental functioning is
so severely impaired that the conservatee lacks the capacity to give
informed consent to any form of medical treatment, the court may take
into consideration the frequency, severity, and duration of periods
of impairment.
(e) In the interest of minimizing unnecessary expense to the
parties to a proceeding, paragraph (2) of subdivision (b) shall not
apply to a petition pursuant to Section 1880 wherein the conservatee,
after notice by the court of his or her right to object which, at
least, shall include an interview by a court investigator pursuant to
Section 1826 prior to the hearing on the petition, does not object
to the proposed finding of incapacity, or waives any objections.

1890. (a) An order of the court under Section 1880 may be included
in the order of appointment of the conservator if the order was
requested in the petition for the appointment of the conservator or,
except in the case of a limited conservator, may be made subsequently
upon a petition made, noticed, and heard by the court in the manner
provided in this article.
(b) In the case of a petition filed under this chapter requesting
that the court make an order under this chapter or that the court
modify or revoke an order made under this chapter, when the order
applies to a limited conservatee, the order may only be made upon a
petition made, noticed, and heard by the court in the manner provided
by Article 3 (commencing with Section 1820) of Chapter 1.
(c) No court order under Section 1880, whether issued as part of
an order granting the original petition for appointment of a
conservator or issued subsequent thereto, may be granted unless
supported by a declaration, filed at or before the hearing on the
request, executed by a licensed physician, or a licensed psychologist
within the scope of his or her licensure, and stating that the
proposed conservatee or the conservatee, as the case may be, lacks
the capacity to give an informed consent for any form of medical
treatment and the reasons therefor. Nothing in this section shall be
construed to expand the scope of practice of psychologists as set
forth in the Business and Professions Code.

1891. (a) A petition may be filed under this article requesting
that the court make an order under Section 1880 or that the court
modify or revoke an order made under Section 1880. The petition shall
state facts showing that the order requested is appropriate.
(b) The petition may be filed by any of the following:
(1) The conservator.
(2) The conservatee.
(3) The spouse, domestic partner, or any relative or friend of the
conservatee.
(c) The petition shall set forth, so far as they are known to the
petitioner, the names and addresses of the spouse or domestic partner
and of the relatives of the conservatee within the second degree.

1892. Notice of the hearing on the petition shall be given for the
period and in the manner provided in Chapter 3 (commencing with
Section 1460) of Part 1.

1893. The conservatee shall be produced at the hearing except in
the following cases:
(a) Where the conservatee is out of state when served and is not
the petitioner.
(b) Where the conservatee is unable to attend the hearing by
reason of medical inability established (1) by the affidavit or
certificate of a licensed medical practitioner or (2) if the
conservatee is an adherent of a religion whose tenets and practices
call for reliance on prayer alone for healing and is under treatment
by an accredited practitioner of that religion, by the affidavit of
the practitioner. The affidavit or certificate is evidence only of
the conservatee's inability to attend the hearing and shall not be
considered in determining the issue of the legal capacity of the
conservatee. Emotional or psychological instability is not good cause
for the absence of the conservatee from the hearing unless, by
reason of such instability, attendance at the hearing is likely to
cause serious and immediate physiological damage to the conservatee.
(c) Where the court investigator has reported to the court that
the conservatee has expressly communicated that the conservatee (1)
is not willing to attend the hearing and (2) does not wish to contest
the petition, and the court makes an order that the conservatee need
not attend the hearing.

1894. If the petition alleges that the conservatee is not willing
to attend the hearing or upon receipt of an affidavit or certificate
attesting to the medical inability of the conservatee to attend the
hearing, the court investigator shall do all of the following:
(a) Interview the conservatee personally.
(b) Inform the conservatee of the contents of the petition, of the
nature, purpose, and effect of the proceeding, and of the right of
the conservatee to oppose the petition, attend the hearing, and be
represented by legal counsel.
(c) Determine whether it appears that the conservatee is unable to
attend the hearing and, if able to attend, whether the conservatee
is willing to attend the hearing.
(d) Determine whether the conservatee wishes to contest the
petition.
(e) Determine whether the conservatee wishes to be represented by
legal counsel and, if so, whether the conservatee has retained legal
counsel and, if not, the name of an attorney the conservatee wishes
to retain.
(f) If the conservatee has not retained counsel, determine whether
the conservatee desires the court to appoint legal counsel.
(g) Determine whether the appointment of legal counsel would be
helpful to the resolution of the matter or is necessary to protect
the interests of the conservatee in any case where the conservatee
does not plan to retain legal counsel and has not requested the court
to appoint legal counsel.
(h) Report to the court in writing, at least five days before the
hearing, concerning all of the foregoing, including the conservatee's
express communications concerning both (1) representation by legal
counsel and (2) whether the conservatee is not willing to attend the
hearing and does not wish to contest the petition.

1895. (a) The conservatee, the spouse, the domestic partner, any
relative, or any friend of the conservatee, the conservator, or any
other interested person may appear at the hearing to support or
oppose the petition.
(b) Except where the conservatee is absent from the hearing and is
not required to attend the hearing under the provisions of Section
1893 and any showing required by Section 1893 has been made, the
court shall, prior to granting the petition, inform the conservatee
of all of the following:
(1) The nature and purpose of the proceeding.
(2) The nature and effect on the conservatee's basic rights of the
order requested.
(3) The conservatee has the right to oppose the petition, to be
represented by legal counsel if the conservatee so chooses, and to
have legal counsel appointed by the court if unable to retain legal
counsel.
(c) After the court informs the conservatee of the matters listed
in subdivision (b) and prior to granting the petition, the court
shall consult the conservatee to determine the conservatee's opinion
concerning the order requested in the petition.

1896. (a) If the court determines that the order requested in the
petition is proper, the court shall make the order.
(b) The court, in its discretion, may provide in the order that,
unless extended by subsequent order of the court, the order or
specific provisions of the order terminate at a time specified in the
order.

1897. An order of the court under Section 1880 continues in effect
until the earliest of the following times:
(1) The time specified in the order, if any.
(2) The time the order is modified or revoked.
(3) The time the conservatorship is terminated.

1898. An order of the court under Section 1880 may be modified or
revoked upon a petition made, noticed, and heard by the court in the
manner provided in this article.