BILL NUMBER: SB 730	CHAPTERED
	BILL TEXT

	CHAPTER   842
	FILED WITH SECRETARY OF STATE   OCTOBER 13, 1995
	APPROVED BY GOVERNOR   OCTOBER 12, 1995
	PASSED THE SENATE   SEPTEMBER 5, 1995
	PASSED THE ASSEMBLY   SEPTEMBER 1, 1995
	AMENDED IN ASSEMBLY   AUGUST 31, 1995
	AMENDED IN ASSEMBLY   JULY 18, 1995
	AMENDED IN ASSEMBLY   JULY 6, 1995
	AMENDED IN SENATE   MAY 23, 1995
	AMENDED IN SENATE   APRIL 19, 1995

INTRODUCED BY  Senator Mello

                        FEBRUARY 22, 1995

   An act to amend Section 39 of the Civil Code, and to amend
Sections 1801, 3201, 3204, and 3208 of, and to add Sections 810, 811,
812, 813, 814, and 1881 to, the Probate Code, relating to capacity.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 730, Mello.  Capacity.
   (1) Existing law provides that a conveyance or other contract of a
person of unsound mind, but not entirely without understanding, made
before the incapacity of the person has been judicially determined,
is subject to rescission.
   This bill would provide that a rebuttable presumption affecting
the burden of proof that a person is of unsound mind shall exist for
purposes of rescission if the person is substantially unable to
manage his or her own financial resources or resist fraud or undue
influence.
   (2) Existing law provides that a conservator of the person may be
appointed for a person who is unable to properly provide for his or
her personal needs for physical health, food, clothing, or shelter,
except as otherwise provided.  Existing law provides that a
conservator of the estate may be appointed for a person who is unable
to manage his or her own financial resources or resist fraud or
undue influence, except as otherwise provided.
   This bill would provide that the standard of proof for the
appointment of a conservator shall be clear and convincing evidence.

   (3) Existing law provides that the appointment of a conservator of
the estate is an adjudication that the conservatee lacks the legal
capacity to enter into or make any transaction that binds or
obligates the conservatorship estate.
   This bill would provide that except as otherwise provided by law,
a person lacks the capacity to make a decision unless he or she has
specified abilities; and that a determination that a person is of
unsound mind or lacks the capacity to make a decision or do a certain
act, including making medical decisions, shall be supported by
evidence of a deficit in at least one of prescribed mental functions,
but only if the deficit by itself or in combination with one or more
other deficits significantly impairs the person's ability to
understand and appreciate the consequence of his or her actions with
regard to the type of act or decision in question.  The bill would
also specify that the mere diagnosis of a mental or physical disorder
shall not be sufficient in and of itself to support a determination
that a person is of unsound mind or lacks the capacity to do a
certain act, and that a person has the capacity to give informed
consent to proposed medical treatment if he or she has specified
abilities.
   (4) Existing law requires a court, if it determines that there is
no form of medical treatment for which a conservatee has the capacity
to give an informed consent, to adjudge that the conservatee lacks
the capacity to give informed consent for medical treatment and, by
order, to give the conservator of the person specified powers.
   This bill would provide that a conservatee shall be deemed unable
to give this consent if, for all medical treatments, the conservatee
is unable to respond knowingly and intelligently to queries about any
form of medical treatment or is unable to participate in a treatment
decision by means of a rational thought process.  It would require
the court, when making this determination, to (A) determine that the
conservatee is unable to understand prescribed medical treatment
information and (B) determine that one or more of the conservatee's
mental functions is seriously impaired and there is a link between
the deficit and the conservatee's inability to give informed consent,
as specified.
   (5) Under existing law, if an adult who does not have a
conservator of the person requires medical treatment for an existing
or continuing problem and the person is unable to give informed
consent, a court, upon petition, may authorize the medical treatment
and authorize the petitioner to consent to the medical treatment.
Existing law requires the petition to state prescribed information
about the person.
   This bill would revise and recast this provision to authorize a
petition to be filed to determine that the person lacks the capacity
to give informed consent, as specified, or to determine that the
person lacks the capacity to give informed consent and to authorize a
designated person to give consent to the treatment.  This bill would
require the petition to include additional information.  The bill
would also specify that the law authorizing medical treatment for an
adult without a conservator shall not be construed to supersede or
impair the right of any individual to choose treatment by spiritual
means in lieu of medical treatment, nor shall any such person be
required to submit to medical testing of any kind pursuant to a
determination of competency.
   (6) This bill would provide that it shall be known and may be
cited as the Due Process in Competence Determinations Act.
   (7) This bill would provide that it would not apply to proceedings
under the Welfare and Institutions Code.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 39 of the Civil Code is amended to read:
   39.  (a) A conveyance or other contract of a person of unsound
mind, but not entirely without understanding, made before the
incapacity of the person has been judicially determined, is subject
to rescission, as provided in Chapter 2 (commencing with Section
1688) of Title 5 of Part 2 of Division 3.
   (b) A rebuttable presumption affecting the burden of proof that a
person is of unsound mind shall exist for purposes of this section if
the person is substantially unable to manage his or her own
financial resources or resist fraud or undue influence.  Substantial
inability may not be proved solely by isolated incidents of
negligence or improvidence.
  SEC. 2.  Section 810 is added to the Probate Code, to read:
   810.  The Legislature finds and declares the following:
   (a) A person who has a mental or physical disorder may still be
capable of contracting, conveying, marrying, making medical
decisions, executing wills or trusts, and performing other actions.
   (b) A judicial determination that a person is totally without
understanding, or is of unsound mind, or suffers from one or more
mental deficits so substantial that, under the circumstances, the
person should be deemed to lack the legal capacity to perform a
specific act, should be based on evidence of a deficit in one or more
of the person's mental functions rather than on a diagnosis of a
person's mental or physical disorder.
  SEC. 3.  Section 811 is added to the Probate Code, to read:
   811.  Except where otherwise provided by law, including, but not
limited to, Section 813 and the statutory and decisional law of
testamentary capacity as in effect on January 1, 1995, a person lacks
the capacity to make a decision unless the person has the ability to
communicate verbally, or by any other means, the decision, and to
understand and appreciate, to the extent relevant, all of the
following:
   (a) The rights, duties, and responsibilities created by or
affected by the decision.
   (b) The probable consequences for the decisionmaker and, where
appropriate, the persons affected by the decision.
   (c) The significant risks, benefits, and reasonable alternatives
involved in the decision.
  SEC. 4.  Section 812 is added to the Probate Code, to read:
   812.  (a) A determination that a person is of unsound mind or
lacks the capacity to make a decision or do a certain act, including,
but not limited to, the incapacity to contract, to make a
conveyance, to marry, to make medical decisions, to vote, or to
execute wills or trusts, shall be supported by evidence of a deficit
in at least one of the following mental functions, subject to
subdivision (b):
   (1) Alertness and attention, including, but not limited to, the
following:
   (A) Level of arousal or consciousness.
   (B) Orientation to time, place, person, and situation.
   (C) Ability to attend and concentrate.
   (2) Information processing, including, but not limited to, the
following:
   (A) Short- and long-term memory, including immediate recall.
   (B) Ability to understand or communicate with others, either
verbally or otherwise.
   (C) Recognition of familiar objects and familiar persons.
   (D) Ability to understand and appreciate quantities.
   (E) Ability to reason using abstract concepts.
   (F) Ability to plan, organize, and carry out actions in one's own
rational self-interest.
   (G) Ability to reason logically.
   (3) Thought processes.  Deficits in these functions may be
demonstrated by the presence of the following:
   (A) Severely disorganized thinking.
   (B) Hallucinations.
   (C) Delusions.
   (D) Uncontrollable, repetitive, or intrusive thoughts.
   (4) Ability to modulate mood and affect.  Deficits in this ability
may be demonstrated by the presence of a pervasive and persistent or
recurrent state of euphoria, anger, anxiety, fear, panic,
depression, hopelessness or despair, helplessness, apathy or
indifference, which is inappropriate in degree to the individual's
circumstances.
   (b) A deficit in the mental functions listed above may be
considered only if the deficit, by itself or in combination with one
or more other mental function deficits, significantly impairs the
person's ability to understand and appreciate the consequences of his
or her actions with regard to the type of act or decision in
question.
   (c) In determining whether a person suffers from a deficit in
mental function so substantial that the person lacks the capacity to
do a certain act, the court may take into consideration the
frequency, severity, and duration of periods of impairment.
   (d) The mere diagnosis of a mental or physical disorder shall not
be sufficient in and of itself to support a determination that a
person is of unsound mind or lacks the capacity to do a certain act.

   (e) This part applies only to the evidence that is presented to,
and the findings that are made by, a court determining the capacity
of a person to do a certain act or make a decision, including, but
not limited to, making medical decisions.  Nothing in this part shall
affect the decisionmaking process set forth in Section 1418.8 of the
Health and Safety Code, nor increase or decrease the burdens of
documentation on, or potential liability of, physicians and surgeons
who, outside the judicial context, determine the capacity of patients
to make a medical decision.
  SEC. 5.  Section 813 is added to the Probate Code, to read:
   813.  A person has the capacity to give informed consent to a
proposed medical treatment if the person is able to do all of the
following:
   (a) Respond knowingly and intelligently to queries about that
medical treatment.
   (b) Participate in that treatment decision by means of a rational
thought process.
   (c) Understand all of the following items of minimum basic medical
treatment information with respect to that treatment:
   (1) The nature and seriousness of the illness, disorder, or defect
that the person has.
   (2) The nature of the medical treatment that is being recommended
by the person's health care providers.
   (3) The probable degree and duration of any benefits and risks of
any medical intervention that is being recommended by the person's
health care providers, and the consequences of lack of treatment.
   (4) The nature, risks, and benefits of any reasonable
alternatives.
  SEC. 6.  Section 814 is added to the Probate Code, to read:
   814.  A person who has the capacity to give informed consent to a
proposed medical treatment also has the capacity to refuse consent to
that treatment.
  SEC. 7.  Section 1801 of the Probate Code is amended to read:
   1801.  Subject to Section 1800.3:
   (a) A conservator of the person may be appointed for a person who
is unable to provide properly for his or her personal needs for
physical health, food, clothing, or shelter, except as provided for
the person as described in subdivision (b) or (c) of Section 1828.5.

   (b) A conservator of the estate may be appointed for a person who
is substantially unable to manage his or her own financial resources
or resist fraud or undue influence, except as provided for that
person as described in subdivision (b) or (c) of Section 1828.5.
Substantial inability may not be proved solely by isolated incidents
of negligence or improvidence.
   (c) A conservator of the person and estate may be appointed for a
person described in subdivisions (a) and (b).
   (d) A limited conservator of the person or of the estate, or both,
may be appointed for a developmentally disabled adult.  A limited
conservatorship may be utilized only as necessary to promote and
protect the well-being  of the individual, shall be designed to
encourage the development of maximum self-reliance and independence
of the individual, and shall be ordered only to the extent
necessitated by the individual's proven mental and adaptive
limitations.  The conservatee of the limited conservator shall not be
presumed to be incompetent and shall retain all legal and civil
rights except those which by court order have been designated as
legal disabilities and have been specifically granted to the limited
conservator.  The intent of the Legislature, as expressed in Section
4501 of the Welfare and Institutions Code, that developmentally
disabled citizens of this state receive services resulting in more
independent, productive, and normal lives is the underlying mandate
of this division in its application to adults alleged to be
developmentally disabled.
   (e) The standard of proof for the appointment of a conservator
pursuant to this section shall be clear and convincing evidence.
  SEC. 8.  Section 1881 is added to the Probate Code, to read:
   1881.  (a) A conservatee shall be deemed unable to give informed
consent to any form of medical treatment pursuant to Section 1880 if,
for all medical treatments, the conservatee is unable to respond
knowingly and intelligently to queries about medical treatment or is
unable to participate in a treatment decision by means of a rational
thought process.
   (b) In order for a court to determine that a conservatee is unable
to respond knowingly and intelligently to queries about his or her
medical treatment or is unable to participate in treatment decisions
by means of a rational thought process, a court shall do both of the
following:
   (1) Determine that, for all medical treatments, the conservatee is
unable to understand at least one of the following items of minimum
basic medical treatment information:
   (A) The nature and seriousness of any illness, disorder, or defect
that the conservatee has or may develop.
   (B) The nature of any medical treatment that is being or may be
recommended by the conservatee's health care providers.
   (C) The probable degree and duration of any benefits and risks of
any medical intervention that is being or may be recommended by the
conservatee's health care providers, and the consequences of lack of
treatment.
   (D) The nature, risks, and benefits of any reasonable
alternatives.
   (2) Determine that one or more of the mental functions of the
conservatee described in subdivision (a) of Section 812 is impaired
and that there is a link between the deficit or deficits and the
conservatee's inability to give informed consent.
   (c) A deficit in the mental functions listed in subdivision (a) of
Section 812 may be considered only if the deficit by itself, or in
combination with one or more other mental function deficits,
significantly impairs the conservatee's ability to understand the
consequences of his or her decisions regarding medical care.
   (d) In determining whether a conservatee's mental functioning is
so severely impaired that the conservatee lacks the capacity to give
informed consent to any form of medical treatment, the court may take
into consideration the frequency, severity, and duration of periods
of impairment.
   (e) In the interest of minimizing unnecessary expense to the
parties to a proceeding, paragraph (2) of subdivision (b) shall not
apply to a petition pursuant to Section 1880 wherein the conservatee,
after notice by the court of his or her right to object which, at
least, shall include an interview by a court investigator pursuant to
Section 1826 prior to the time at which the petition is filed, does
not object to the proposed finding of incapacity, or waives any
objections.
  SEC. 9.  Section 3201 of the Probate Code is amended to read:
   3201.  (a) A petition may be filed to determine that a patient has
the capacity to give informed consent to a specified medical
treatment for an existing or continuing medical condition.
   (b) A petition may be filed to determine that a patient lacks the
capacity to give informed consent to a specified medical treatment
for an existing or continuing medical condition, and further for an
order authorizing a designated person to give consent to such
treatment on behalf of the patient.
   (c) One proceeding may be brought under this part under both
subdivisions (a) and (b).
   (d) In determining whether a person's mental functioning is so
severely impaired that the person lacks the capacity to give informed
consent to any form of medical treatment, the court may take into
consideration the frequency, severity and duration of periods of
impairment.
   (e) Nothing in this part shall supersede the right that any person
may have under existing law to make medical decisions on behalf of a
patient, or affect the decision making process of a long-term health
care facility, as defined in subdivision (b) of Section 1418 of the
Health and Safety Code.
   (f) This chapter is permissive and cumulative for the relief to
which it applies.
   (g) Nothing in this part shall be construed to supersede or impair
the right of any individual to choose treatment by spiritual means
in lieu of medical treatment, nor shall any person choosing treatment
by spiritual means, in accordance with the tenets and practices of
that individual's established religious tradition, be required to
submit to medical testing of any kind pursuant to a determination of
competency.
  SEC. 10.  Section 3204 of the Probate Code is amended to read:
   3204.  The petition shall state, or set forth by medical
declaration attached thereto, all of the following so far as is known
to the petitioner at the time the petition is filed:
   (a) The nature of the medical condition of the patient which
requires treatment.
   (b) The recommended course of medical treatment which is
considered to be medically appropriate.
   (c) The threat to the health of the patient if authorization for
the recommended course of treatment is delayed or denied by the
court.
   (d) The predictable or probable outcome of the recommended course
of treatment.
   (e) The medically available alternatives, if any, to the course of
treatment recommended.
   (f) The efforts made to obtain an informed consent from the
patient.
   (g) If the petition is filed by a person on behalf of a medical
facility, the name of the person to be designated to give consent to
the recommended course of treatment on behalf of the patient.
   (h) The deficit or deficits in the patient's mental functions
listed in subdivision (a) of Section 812 which are impaired, and
identifying a link between the deficit or deficits and the patient's
inability to respond knowingly and intelligently to queries about the
recommended medical treatment or inability to participate in a
treatment decision about the recommended medical treatment by means
of a rational thought process.
  SEC. 11.  Section 3208 of the Probate Code is amended to read:
   3208.  (a) The court may make an order authorizing the recommended
course of medical treatment of the patient and designating a person
to give consent to the recommended course of medical treatment on
behalf of the patient if the court determines from the evidence all
of the following:
   (1) The existing or continuing medical condition of the patient
requires the recommended course of medical treatment.
   (2) If untreated, there is a probability that the condition will
become life-endangering or result in a serious threat to the physical
or mental health of the patient.
   (3) The patient is unable to give an informed consent to the
recommended course of treatment.
   (b) If the patient has the capacity to give informed consent to
the recommended course of medical treatment, the court shall so find
in its order.
   (c) If the court finds that the patient has the capacity to give
informed consent to the recommended course of medical treatment, but
that the patient refuses consent, the court shall not make an order
authorizing the course of recommended medical treatment or
designating a person to give consent to such treatment.  If an order
has been made authorizing the recommended course of medical treatment
and designating a person to give consent to that treatment, the
order shall be revoked if the court determines that the patient has
recovered the capacity to give informed consent to the recommended
course of medical treatment.  Until revoked or modified, the order is
effective authorization for the course of medical treatment.
   (d) In a proceeding under this part, where the court has
determined that the patient has the capacity to give informed
consent, the court shall, if requested, determine whether the patient
has accepted or refused the recommended course of treatment, and
whether a patient's consent to the recommended course of treatment is
an informed consent.
  SEC. 12.  This act shall be known and may be cited as the Due
Process in Competence Determinations Act.
  SEC. 13.  This act shall not apply to proceedings under the Welfare
and Institutions Code.