Supported Decision Making vs. Conservatorship in California

Introduction:

In California, individuals with disabilities or incapacities may require assistance in making decisions regarding their personal affairs, health care, and finances. The state recognizes two primary mechanisms to support individuals in decision making: Supported Decision Making (SDM) and Conservatorship. It is essential for legal practitioners and advocates to understand the differences between these two approaches to ensure that the rights and preferences of individuals are respected while providing adequate support.

Supported Decision Making (SDM):

Supported Decision Making is a model that enables individuals with disabilities or impairments to make choices about their lives with the assistance of trusted supporters. In California, SDM is recognized as a legal alternative to conservatorship under the California Probate Code.

Key Components of Supported Decision Making:

1. Autonomy: SDM preserves the autonomy and decision-making capacity of the individual, allowing them to retain control over their lives to the fullest extent possible.
2. Supporters: The individual selects one or more trusted supporters, such as family members, friends, or professionals, to assist them in understanding information and making decisions across various domains.
3. Flexibility: SDM allows for flexible arrangements tailored to the individual’s needs, preferences, and abilities.
4. Documentation: While not mandatory, documenting the SDM arrangement in writing can provide clarity and prevent disputes.

Conservatorship:

Conservatorship, also known as guardianship in other jurisdictions, is a legal process in which the court appoints a responsible person or organization to make decisions on behalf of an individual who is deemed unable to make decisions independently.

Key Components of Conservatorship:

1. Court Involvement: Conservatorship requires court involvement, including filing a petition, providing evidence of incapacity, and obtaining judicial approval for the appointment of a conservator.
2. Loss of Autonomy: Once appointed, the conservator assumes legal authority over the individual’s personal affairs, health care, or finances, restricting the individual’s autonomy.
3. Ongoing Oversight: The court oversees the actions of the conservator to ensure compliance with fiduciary duties and the best interests of the conservatee.
4. Burden of Proof: The burden of proof in conservatorship proceedings lies with the petitioner to demonstrate the individual’s incapacity and the necessity of a conservatorship.

Comparison Chart:

Conclusion:

In California, Supported Decision Making offers a less restrictive alternative to conservatorship, emphasizing individual autonomy and flexibility. Legal practitioners should consider SDM as a viable option for supporting individuals with disabilities or incapacities in decision making while respecting their rights and preferences. (For more information: FAQ Supported Decision Making (ACLU.org))

Disclaimer: This practice advisory is provided for informational purposes only and should not be construed as legal advice. Practitioners should consult relevant statutes, case law, and professional guidelines when advising clients on supported decision making and conservatorship matters in California.

About the APILO’s Elder and Disability Rights Project:
APILO’s Elder and Disability Rights Project provides legal services in a variety of areas to assist elders and individuals with disabilities to receive public benefits and live a life free from abuse. The Elder Team works to both to prevent abuse towards elders and people with disabilities and to assist survivors of abuse. We work closely with senior centers, churches, and senior meal sites to keep our services accessible. With a team of exemplary attorneys and dedicated staff, the team provides a wide range of legal services, including naturalization assistance, other immigration cases, elder abuse, estate planning, eviction defense, conservatorship, guardianship, and restraining orders to name a few.