2007 California Health and Safety Code Article 7.5. Conservatorship And Guardianship For Developmentally Disabled Persons

CA Codes (hsc:416-416.23)

416.  The Director of Developmental Services may be appointed as
either guardian or conservator of the person and estate, or person or
estate, of any developmentally disabled person, who is either of the
following:
   (1) Eligible for the services of a regional center.
   (2) A patient in any state hospital, and who was admitted or
committed to such hospital from a county served by a regional center.

   Any reference in this article to the Director of Health shall be
deemed a reference to the Director of Developmental Services.



416.1.  Unless exceptions are expressly made in this article, the
provisions of Division 4 (commencing with Section 1400) of the
Probate Code shall apply to guardianship and conservatorship
appointments made under this article.



416.5.  The director may be nominated by any one of the following to
act as guardian or conservator for any developmentally disabled
person; (1) who is or may become eligible for the services of a
regional center, or (2) who is a patient in any state hospital, and
who was admitted or committed to such hospital from a county served
by a regional center:
   (a) A parent, relative or friend.
   (b) The guardian or conservator of the person or estate, or person
and estate, of the developmentally disabled person to act as his
successor.
   (c) The developmentally disabled person.
   Such nomination shall be in writing and may provide that the
authority of the director is to take effect at some date or
occurrence in the future that may be fixed in the nomination.
   The director shall promptly accept or reject such nomination in
writing.  His acceptance shall be binding upon him and his
successors.  Any nomination to take effect in the future may be
withdrawn by the nominator before its effective date.



416.6.  In every case in which he has agreed to do so, the director
may petition for his appointment to act as conservator or guardian of
the alleged developmentally disabled person and his estate or his
person or estate in the superior court of the county where the main
administrative office of the regional center serving such
developmentally disabled person is located.



416.7.  If the alleged developmentally disabled person is within the
state and is able to attend, he shall be present at the hearing.  If
he is unable to attend by reason of physical or other inability,
such inability shall be evidenced by the affidavit or certificate of
a duly licensed medical practitioner as provided in Section 1825 of
the Probate Code.  Such affidavit or certificate shall be filed no
later than 10 days prior to the time of the hearing.



416.8.  In addition to the requirements of Division 4 (commencing
with Section 1400) of the Probate Code, the court shall be provided
by the regional center with a complete evaluation of the
developmentally disabled person for whose protection the appointment
is sought.  The report shall include a current diagnosis of his
physical condition prepared under the direction of a licensed medical
practitioner and a report of his current mental condition and social
adjustment prepared by a licensed and qualified social worker or
psychologist. The evaluation report required by this section shall
not be made part of the public record of the guardianship or
conservatorship proceedings and shall be open to inspection only by
court personnel, the person who is the subject of the proceeding, his
parents, guardian or conservator, the attorneys for such parties,
and such other persons as may be designated by the court.  If an
affidavit or certificate has been filed as provided in Section 416.7
evidencing the inability of the alleged developmentally disabled
person to be present at the hearing, the psychologist or social
worker who assists in preparing the report shall visit the alleged
developmentally disabled person and be prepared to testify as to his
present condition.


416.9.  The court may appoint the Director of Developmental Services
as guardian or conservator of the person and estate or person or
estate of a minor or adult developmentally disabled person.  The
preferences established in Section 1812 of the Probate Code for
appointment of a conservator shall not apply.  An appointment of the
Director of Developmental Services as conservator shall not of itself
constitute a judicial finding that the developmentally disabled
person is legally incompetent.  The petition for the appointment of
the Director of Developmental Services as conservator of an adult
developmentally disabled person may include a request that the court
adjudge the developmentally disabled person to be legally incompetent
or such an adjudication may be made subsequently upon a petition
made, noticed, and heard by the court in the same manner as a
petition for the appointment of the director as conservator.  If the
Director of Developmental Services is serving as the guardian of an
adult developmentally disabled person on December 31, 1980, after
that date such appointment shall be deemed to be the appointment of a
conservator and the conservatee shall be deemed to have been
adjudged to be legally incompetent.



416.95.  Prior to the appointment of the Director of Developmental
Services as guardian or conservator of the person or estate of a
minor or adult developmentally disabled person, the court shall
inform the person of the nature and purpose of the guardianship or
conservatorship proceedings and the effect of the proceedings on the
basic rights of the person.  After communicating the information to
the alleged developmentally disabled person and prior to the
appointment of the Director of Developmental Services as guardian or
conservator, the court shall consult with the person to determine the
person's opinion concerning the appointment.
   Any adult developmentally disabled person for whom guardianship or
conservatorship is sought pursuant to this article shall be informed
by a member or designee of the regional center and by the court of
the person's right to counsel; and if the person does not have an
attorney for the proceedings the court shall immediately appoint the
public defender or other attorney to represent the person.  The
person shall pay the cost for such legal service if able.
   If an affidavit or certificate has been filed, as provided in
Section 416.7, evidencing the inability of the alleged
developmentally disabled person to be present at the hearing, the
psychologist or social worker assisting in preparing the report and
who is required to visit each person as provided in Section 416.8
shall communicate such information to the person during the visit,
consult the person to determine the person's opinion concerning the
appointment, and be prepared to testify as to the person's opinion,
if any.


416.10.  No appointment of both the Director of Developmental
Services and a private guardian or conservator shall be made for the
same person and estate, or person or estate.  The Director of
Developmental Services may be appointed as provided in this article
to succeed an existing guardian or conservator upon the death,
resignation or removal of such guardian or conservator.



416.11.  No costs or fees shall be charged or received by the county
clerk for the filing of any conservatorship or guardianship petition
as provided in this article, or for any official services performed
by him in the course of the proceeding under this article.



416.12.  The Director of Developmental Services shall file an
official bond in no event less than twenty-five thousand dollars
(,000), which bond shall inure to the joint benefit of the several
guardianship or conservatorship estates and the State of California,
and the Director of Developmental Services shall not be required to
file bonds in individual cases.



416.13.  The appointment by the court of the Director of
Developmental Services as conservator or guardian shall be by the
title of his office.  The authority of the Director of Developmental
Services as conservator or guardian shall cease upon the termination
of his term of office as such Director of Developmental Services and
his authority shall vest in his successor or successors in office
without further court proceedings.  The Director of Developmental
Services shall not resign as conservator or guardian unless his
resignation is approved by the court.



416.14.  The Director of Developmental Services shall:
   (a) Consult with developmentally disabled persons and their
families with respect to the services the director offers.
   (b) Act as adviser for those developmentally disabled persons who
request the director's advice and guidance or for whose benefit it is
requested.
   (c) Accept appointment as guardian or conservator of the person
and estate, or person or estate, of those developmentally disabled
persons who need the director's assistance and protection.



416.15.  The Director of Developmental Services, when acting as
adviser, may provide advice and guidance to the developmentally
disabled person without prior appointment by a court.  The provision
for such services shall not be dependent upon a finding of
incompetency, nor shall it abrogate any civil right otherwise
possessed by the developmentally disabled person.



416.16.  The Director of Developmental Services shall have the same
powers and duties as those established for guardians and conservators
in Division 4 (commencing with Section 1400) of the Probate Code and
shall succeed the State Director of Health as guardian or
conservator of developmentally disabled individuals for whom the
State Director of Health was appointed guardian or conservator.



416.17.  It is the intent of this article that the director when
acting as guardian or conservator of the person of a developmentally
disabled person through the regional center as provided in Section
416.19 of this article, shall maintain close contact with the
developmentally disabled person no matter where such person is living
in this state; shall act as a wise parent would act in caring for
his developmentally disabled child; and shall permit and encourage
maximum self-reliance on the part of the developmentally disabled
person under his protection.



416.18.  The director shall provide for at least an annual review in
writing of the physical, mental, and social condition of each
developmentally disabled person for whom he has been appointed
conservator or guardian, or for whom he is otherwise acting in his
official capacity under this article.  These records shall be
confidential but may be made available to persons approved by the
director or the court.



416.19.  The services to be rendered by the director as adviser or
as guardian or conservator of the person shall be performed through
the regional centers or by other agencies or individuals designated
by the regional centers.


416.20.  The director shall receive such reasonable fees for his
services as guardian or conservator of the estate as the court allows
and such fees shall be paid into the General Fund of the State
Treasury.


416.23.  This article does not authorize the care, treatment, or
supervision or any control over any developmentally disabled person
without the written consent of his parent or guardian or conservator.