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.
Capacity Assessments in California
Improving Clinical Practices and Judicial
Procedures to Better Protect the Rights
of Seniors and People with Disabilities
The report was released on July 1, 2020
Here is the link to the report
Here is a review of the report by Dr. Sam Sugar
Why is America’s guardianship system so badly broken? Why have advocates across the country been able to document thousands of cases of egregious abuse, neglect and exploitation of vulnerable elderly citizens conscripted into guardianship purgatory? Why hasn’t any branch of government been responsive to the torrent of legally valid complaints arising from abuse of the state-based guardianship machine?
Answering these questions requires a deep dive into the origins and roots of the system and why it has become a stain on our country. More importantly, only by putting forth a series of practical and thoughtful recommendations for rectifying the current unprecedented levels of dysfunction and state court-based predation against vulnerable citizens in State Probate Courts can we hope for reformation of this unaccountable and anachronistic system.
Spectrum Institute’s Tom Coleman’s tour de force Capacity Assessments in California Conservatorship Proceedings is a landmark document. Not only is it a road map through the minefield that must be navigated by unsuspecting individuals and families, but it is a sobering cogent analysis of how this “system” intended to assist those in need has instead become a tool of government overreach perverted to the goal of usurping power and assets for the benefit of court insiders.
All three branches of state government bear responsibility, but Coleman’s insightful analysis makes clear that the judiciary which administers guardianships and conservatorships has through a toxic combination of hubris, disinterest, laziness or complicity managed the guardianship process into a thoroughly unaccountable system designed not to assist those in need but rather a well-oiled machine designed to produce more and more highly lucrative guardianships. Judiciary leaders are content to pretend to manage this system without knowing the answers to even the most basic questions like how many seniors and other adults are under living under an order of conservatorship? Moreover, since appeals by wards/conservatees almost never occur, justices of the Supreme Court and Court of Appeal are generally clueless about the countless failings of their own broken system which they are, nonetheless charged to manage. Because appeals are so rare, State judicial leaders are completely out of touch with the way conservatorship proceedings occur in actual practice at the local level and the horrific abuses they spawn.
As just one glaring example of the Courts’ failure to manage itself, theoretically, current law in many states clearly favors the use of alternatives to conservatorship. But in practice viable less invasive and less costly alternatives like supported decision-making are almost never seriously explored by court appointed attorneys, court investigators, and judges. Petitioners simply check a box in the petition and allege that less restrictive alternatives will not suffice and cha ching the money from adversarial guardianship litigation expediently starts to flow. As Coleman states “Judges and attorneys in California should move away from doing what is expedient and instead do what is statutorily and constitutionally required. Less restrictive alternatives should be investigated and evaluated with due diligence”.
Judges say they are too overworked to be thorough, but there appears to be ample judicial energy to continue the misuse of their power to direct and manage lucrative legal services involving lawyers who represent clients in these proceedings. Judges should be adjudicating cases, not recruiting, appointing, approving payments, and coaching the attorneys who appear before them.
Coleman documents numerous blatant deficiencies in the California (and other states’) system. Seeing them so clearly laid out, eloquently explained and thoroughly documented raises the question of why the judiciary with its unparalleled latitude and resources has been unable, or more likely unwilling to recognize the urgency of correcting this long-standing abuse of power. Generation after generation of judicial leaders have been content with the status quo of relinquishing absolute authority over life and death to unmonitored unsupervised administrative judges who operate without juries, with no deference to rules of procedure, or rules of evidence. These particular courts of equity should be the most highly supervised and monitored in the court system since they operate without the typical safeguards seen in civil or criminal courts. Characteristically, in the name of expediency, these courts employ improper but frequent unrecorded and undocumented ex parte meetings, blanket sequestration of records, egregious retaliation against litigants with sanctions fines and even arrests against anyone who dares protest their decisions.
Until the status quo is no longer tolerated or acceptable and these courts are held accountable for their actions, closely monitored and supervised and the solutions put forth by Coleman are enacted, there will continue to be a great need for guardianship advocates and advocacy to expose the danger faced by any vulnerable individual who grows old in America.
Kudos to Tom Coleman for this outstanding effort.