Conservatorship Standing On One Foot
The law requires what we would want for ourselves.
- In hand
- Specific language
- Ten days before hearing (an increase)
- Presence at the hearing
- Right to counsel of choice
- Testimony under oath
- hearing recorded
- recording saved
- rules of evidence apply
- standard is clear and convincing evidence
- Simplified appeal.
- No jurisdiction without compliance with notice.
No taking of evidence without jurisdiction.
- Expanded to include where the respondent is located.
- Special rules re out of state residents---obligation to attempt to return them before attempting to conserve them.
Definitions/Least Restrictive Intervention
- Incapable: Unable to receive or evaluate information or make or communicate decisiosn to such an extent that the person is unable even with appropriate assistance to meet essential needs or manage his/her affairs.
- Appointment is the least restrictive means of intervention available. No conservator may be appointed if the respondent is cared for adequately, or affairs are managed through less restrictive means such as power of atty. or health care representative.
- Considerations of capacity, preferences, information about the respondent, past preferences, cultural issues, continuity, previous arrangements, supportive services or technologies available.
- Conservator bound by decisions of health care rep, absent contrary court order.
- Conserved individual retains all rights not assigned; court assigns to conservator only those powers representing the **least restrictive means of meeting the conserved person's needs**.
- The court must make **finding** by clear and convincing evidence **supporting each duty assigned to the conservator**.
- Conserved person retains right to retain an attorney or seek redress in any court or administrative agency.
- Conservator has specific affirmative duty to assist in removal of barriers to independence, promote conserved person's meaningful participation in decision making.
- Preponderance of evidence---easier standard to terminate than to conserve.
- Dissolves within 30 days of request if no hearing scheduled.
- “REDO” for people who were conserved before 10/01/2007.
Due process, Least restrictive, Think outside the box.
The Talmud tells us that a person once came to Rabbi Hillel and said, "I wish to convert to Judaism, but only if you teach me the entire Torah (Bible) while I stand on one foot." Hillel replied, "What is hateful to you, do not do to your fellow man. This is the core. The rest is mere commentary."