Capacity Assessments in California Conservatorship Proceedings

 Improving Clinical Practices and Judicial
Procedures to Better Protect the Rights of
Seniors and People with Disabilities

 

A REPORT TO THE CHIEF JUSTICE,
GOVERNOR, AND LEGISLATURE

 

Thomas F. Coleman
Legal Director
Spectrum Institute*

 

July 1, 2020

 

             Recommendations       Full Report         Executive Summary       

Addendum on Capacity to Retain Counsel

Letters to: 
Chief Justice, Governor, Legislature

California Law Revision Commission

 

Review by Cheryl Mitchell, J.D.
 
Review by Sam Sugar, M.D., AAAPG
 
Review by Rick and Terri Black, CEAR
 
Review by Kevin Bigelow, NAPSA

*  On January 13, 2020, the board of directors endorsed the capacity assessment project, including a report to be written by Thomas F. Coleman to to be submitted upon completion to the Chief Justice, Governor, and Legislature. 

 

See Below for Background to Report

 

Capacity Assessment Workgroup
An Advisory Committee of Spectrum Institute

 
Spectrum Institute has convened a Capacity Assessment Workgroup to review the current capacity assessment process in probate court proceedings in California -- especially in conservatorship proceedings. Spectrum Institute is a nonprofit organization advocating for disability rights and conservatorship reform.

The workgroup will identify any deficiencies in policy and practice and develop specific proposals to improve the capacity assessment process. The underlying goal is to ensure that seniors and people with disabilities retain as much independence as feasible and that due process is afforded in proceedings that threaten their decision-making rights.

The workgroup is focusing on the role of petitioners, medical and mental health professionals, social workers, judges, court investigators, ADA coordinators, court-appointed attorneys, professional fiduciaries, public guardians, and regional center employees as they conduct assessments of a respondent's capacity to make various types of decisions.

Members of the workgroup include physicians, mental health professionals, attorneys, elder care consultants, disability rights advocates, public agency officials, and people whose lives have been directly affected by the probate conservatorship process.

In consultation with the workgroup, Spectrum Institute will issue a report and recommendations to the Judicial Council, Legislature, and Governor.

 

Memo to Workgroup Issues to be Explored Commentary on Issues

Reading Materials

Comments and Suggestions

February 27, 2021

Advisor Reviews, Offers Suggestions on Capacity Assessment Report

 

Marshall Kapp, J.D., M.P.H.*, a legal and mental health advisor to Spectrum Institute, has submitted the following review of a report titled “Capacity Assessments in California Conservatorship Proceedings.”  The report was written by attorney Thomas F. Coleman and submitted to the Chief Justice, Governor, and Legislature on July 1, 2020. 

 

Tom,

 

Thanks for the opportunity to review this excellent report.  My general impression is that the report is so thorough in content, clearly written, comprehensively supported, and specific enough in its recommendations for action that elected officials ought to be able to understand the points you are trying to convey.  I’m sorry but not surprised that no official response has been forthcoming yet; judging by what I see on the nightly news, California has a plethora of problems vying for attention.

 

In terms of prioritizing recommendations, obviously those not requiring huge outlays of new dollars are most likely to be received positively.  In general, recommendations requesting educational activities are less threatening than recommendations calling for actual change in behavior/activity, such as establishing new governmental or private bodies.

 

Thanks again for the opportunity to review and learn from your impressive work on capacity assessment.

 

Best wishes,

 

Marshall     

 

Marshall B. Kapp, J.D., M.P.H. (Colleges of Law & Medicine) was educated at Johns Hopkins University (B.A.), George Washington University Law School (J.D. with Honors), and Harvard University School of Public Health (M.P.H.).  Now a Professor Emeritus, he was the Founding Director of the Florida State University Center for Innovative Collaboration in Medicine and Law from 2010 through 2017, with faculty appointments as Professor, Department of Geriatrics, FSU College of Medicine, and Professor of Medicine and Law in the FSU College of Law.  He also was a Faculty Affiliate of the FSU Pepper Institute on Aging and Public Policy and the FSU Institute for Successful Longevity.  He currently is an Adjunct Professor, Stetson University College of Law (teaching in the Elder Law LLM program) and an Adjunct Professor at the FSU College of Law (teaching in the Juris Masters program).