Powers and Duties of Guardians

Chapter 5 of Part 4 of Division 4 of the Probate Code deals with the powers and duties and guardians or conservators of the person. Section 2350 defines the terms “conservator,” “guardian,” and “residence.”

Section 2351 provides that the guardian or conservator, but not a limited conservator, has the care, custody, and control of, and has charge of the education of, the ward or conservatee. This control does not extend to personal rights retained by the conservatee.

The court may issue an order that specifically grants the conservator the power to enforce the conservatee’s rights to receive visitors, telephone calls, and personal mail, or that directs the conservator to allow those visitors, telephone calls, and personal mail. Where the court determines that it is appropriate in the circumstances of the particular conservatee, the court may limit the powers and duties that the conservator would otherwise have.

Section 2351.2 states that, within 120 calendar days of appointment by the court and no later than 10 days before a hearing to determine the continuation or termination of an existing conservatorship, a conservator granted powers under this chapter is required to file with the clerk of the court a care plan for the care, custody, and control of the conservatee as provided in this section. The court may require a conservator to update the care plan at any time. The court reviews the most recent care plan in determining the continuation or termination of the conservatorship.

Section 2351.5 describes the limited conservator and action they have to undertake. A limited conservator does not have any of the specified powers or controls over the limited conservatee unless those powers or controls are specifically requested in the petition for appointment of a limited conservator and granted by the court in its order appointing the limited conservator:

Section 2352 allows the guardian to establish the residence of the ward at any place within this state without the permission of the court. The guardian selects the least restrictive appropriate residence that is available and necessary to meet the needs of the ward, and that is in the best interests of the ward.

Section 2352.5 says that it is presumed that the personal residence of the conservatee at the time of commencement of the proceeding is the least restrictive appropriate residence for the conservatee. In any hearing to determine if removal of the conservatee from the conservatee’s personal residence is appropriate, that presumption may be overcome by clear and convincing evidence. Upon appointment, the conservator determines the appropriate level of care for the conservatee.

Section 2353 explains that the guardian has the same right as a parent having legal custody of a child to give consent to medical treatment performed upon the ward and to require the ward to receive medical treatment.

Section 2354 states that, if the conservatee has not been adjudicated to lack the capacity to give informed consent for medical treatment, the conservatee may consent to his or her medical treatment. The conservator may also give consent to the medical treatment, but the consent of the conservator is not required if the conservatee has the capacity to give informed consent to the medical treatment, and the consent of the conservator alone is not sufficient under this subdivision if the conservatee objects to the medical treatment.

Section 2355 provides that, if the conservatee has been adjudicated to lack the capacity to make health care decisions, the conservator has the exclusive authority to make health care decisions for the conservatee that the conservator in good faith based on medical advice determines to be necessary. The conservator must make health care decisions for the conservatee in accordance with the conservatee’s individual health care instructions, if any, and other wishes to the extent known to the conservator.

Section 2356 prohibits a ward or conservatee from being placed in a mental health treatment facility under this division against his or her will. Involuntary civil placement of a ward or conservatee in a mental health treatment facility may be obtained only pursuant to law.

Section 2356.5 contains three legislative findings and declarations. A conservator may authorize the placement of a conservatee in a secured perimeter residential care facility for the elderly and that has a care plan that meets the requirements of law upon a court’s finding, by clear and convincing evidence, of all of the specified info.

Section 2357 defines the terms “guardian or conservator” and “ward or conservatee.” If the ward or conservatee requires medical treatment for an existing or continuing medical condition which is not authorized to be performed upon the ward or conservatee, and the ward or conservatee is unable to give an informed consent to this medical treatment, the guardian or conservator may petition the court under this section for an order authorizing the medical treatment and authorizing the guardian or conservator to consent on behalf of the ward or conservatee to the medical treatment.

The petition is required to state, or set forth by medical affidavit attached, all of the seven specified items of information so far as is known to the petitioner at the time the petition is filed.

Section 2358 states that, when a guardian or conservator is appointed, the court may, with the consent of the guardian or conservator, insert in the order of appointment conditions not otherwise obligatory providing for the care, treatment, education, and welfare of the ward or conservatee. Any conditions are to be included in the letters.

Section 2359 provides that, upon petition of the guardian or conservator or ward or conservatee or other interested person, the court may authorize and instruct the guardian or conservator or approve and confirm the acts of the guardian or conservator.

Section 2360 states that, upon the establishment of a conservatorship by the court and annually thereafter, the conservator is required to ensure that a clear photograph of the conservatee is taken and preserved for the purpose of identifying the conservatee if he or she becomes missing.

Section 2361 requires a conservator to provide notice of a conservatee’s death by delivering a copy of the notice to all persons entitled to notice. A conservator also provides notice of the date, time, and location of any funeral, burial, or memorial arrangements for the conservatee, if the conservator makes those arrangements.