Outside an emergency, a conservatorship over a parent with dementia does not, by itself, include the power to lock a door. California put that power in its own section of the Probate Code, with its own findings, its own hearing and its own annual check — because the Legislature said in the statute that the medication side of these powers has been abused, and attached the same protections to placement.
The short answer: only with a separate court order, and only for a facility of a specific kind. A conservator "may authorize the placement of a conservatee in a secured perimeter residential care facility for the elderly" only "upon a court's finding, by clear and convincing evidence, of all of the following": that the conservatee "has a major neurocognitive disorder"; "lacks the capacity to give informed consent to this placement and has at least one mental function deficit"; "needs, or would benefit from, a restricted and secure environment, as demonstrated by evidence presented by the physician or psychologist referred to in paragraph (3) of subdivision (f)"; and that "the proposed placement in a locked facility is the least restrictive placement appropriate to the needs of the conservatee."¹ The petition "shall be supported by a declaration of a licensed physician, or a licensed psychologist" — a psychologist with "at least two years of experience in diagnosing major neurocognitive disorders" — and your parent "shall be represented by an attorney" and "shall be produced at the hearing, unless excused pursuant to Section 1893."¹ The court investigator "shall annually investigate and report," must tell your parent "that the conservatee has the right to object," and must say "whether powers granted under this section are warranted."¹ A conservatee placed under this section "shall not be placed in a mental health rehabilitation center" or "an institution for mental disease."¹ And the presumption before any move is that "the personal residence of the conservatee at the time of commencement of the proceeding is the least restrictive appropriate residence."²
Why the section exists
The statute opens with findings, and one of them is unusually candid: "the administration of psychotropic medications has been, and can be, abused by caregivers and, therefore, granting powers to a conservator to authorize these medications for the treatment of major neurocognitive disorders requires the protections specified in this section."¹ The same protections attach to the locked door. The Legislature's stated aim is a conservatorship that serves "the person's unique and special needs" while it "safeguard[s] the basic dignity and rights of the conservatee."¹
The statute uses the DSM's term, "major neurocognitive disorder," rather than "dementia"; the licensing statute for the facilities adds that the term "includes Alzheimer's disease and related disorders, diagnosed by a physician, that increase the tendency to wander and that decrease hazard awareness and the ability to communicate."¹ ³
The four findings
Each must be proved by clear and convincing evidence:¹
- The diagnosis. "The conservatee has a major neurocognitive disorder, as defined in the last published edition of the Diagnostic and Statistical Manual of Mental Disorders."
- Incapacity for this decision. "The conservatee lacks the capacity to give informed consent to this placement and has at least one mental function deficit pursuant to subdivision (a) of Section 811, and this deficit significantly impairs the person's ability to understand and appreciate the consequences of their actions pursuant to subdivision (b) of Section 811."
- Need. "The conservatee needs, or would benefit from, a restricted and secure environment, as demonstrated by evidence presented by the physician or psychologist referred to in paragraph (3) of subdivision (f)."
- Least restrictive. "The court finds that the proposed placement in a locked facility is the least restrictive placement appropriate to the needs of the conservatee."
Even a finding that a parent has dementia goes only to the first, and it must be framed as a DSM-defined major neurocognitive disorder. The second is about this decision, not all decisions; the third has to come from a clinician's evidence; and the fourth requires the court to have considered the alternatives.
The facility
The order reaches one kind of place: a "secured perimeter residential care facility for the elderly operated pursuant to Section 1569.698 of the Health and Safety Code" with a care plan meeting the state regulations.¹ Those facilities "may utilize secured perimeter fences or locked exit doors" only if they meet the state's additional safeguards, including regulations that "ensure that staff for secured perimeter facilities receive appropriate and adequate training in the care of residents with major neurocognitive disorder."³ Two boundaries are written into the licensing statute: "All admissions to residential care facilities for the elderly shall continue to be voluntary on the part of the resident or with the lawful consent of the resident's legal conservator," and a person "who is not a conservatee and is entering a locked or secured perimeter facility pursuant to this section shall sign a statement of voluntary entry."³ A parent who has not been conserved cannot be placed behind a locked door on a family member's say-so.
What the order does not permit: placement "in a mental health rehabilitation center" or "an institution for mental disease."¹
The same rules for medication
The section gives a parallel power over medication "appropriate for the care and treatment of a major neurocognitive disorder," on parallel findings: the diagnosis, incapacity to consent to those medications with a Section 811 deficit, and that the conservatee "needs, or would benefit from, appropriate medication, as demonstrated by evidence presented by the physician or psychologist referred to in paragraph (3) of subdivision (f)."¹ For an adherent of a religion relying on prayer alone, treatment "shall be by an accredited practitioner of that religion in lieu of the administration of medications."¹
The process
- The petition may be filed by the persons the Probate Code lists, and "shall be supported by a declaration of a licensed physician, or a licensed psychologist within the scope of their licensure, regarding each of the findings required to be made under this section for any power requested," the psychologist having "at least two years of experience in diagnosing major neurocognitive disorders."¹
- A lawyer for your parent. "The conservatee shall be represented by an attorney pursuant to Chapter 4 (commencing with Section 1470) of Part 1."¹
- Your parent in the room. "The conservatee shall be produced at the hearing, unless excused pursuant to Section 1893."¹
- Every year after. "The court investigator shall annually investigate and report to the court… if the conservator is authorized to act under this section," must specifically advise the conservatee "that the conservatee has the right to object to the conservator's powers granted under this section," and the report "shall also include whether powers granted under this section are warranted."¹ If the conservatee objects, or the investigator thinks a change is warranted, the court sends the report to the conservatee's attorney — appointing one if there is none — who must within 30 days either "file a petition with the court regarding the status of the conservatee" or file a written report that the attorney "has met with the conservatee and determined that the petition would be inappropriate."¹
- Ending it. "A petition to terminate authority granted under this section shall be governed by Section 2359."¹
Before any of this: the presumption for home
The Probate Code presumes home. "It shall be 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," and that presumption "may be overcome by clear and convincing evidence."² A conservator "shall determine the appropriate level of care," including "the measures that would be necessary to keep the conservatee in their personal residence," and where the conservatee is already elsewhere, "either… a plan to return the conservatee to their personal residence or an explanation of the limitations or restrictions on a return of the conservatee to their personal residence in the foreseeable future."² Any change of residence must be noticed twice: before the move, notice of the proposed removal at least 20 days in advance unless there is an emergency; and afterwards, the conservator "shall file a notice of change of residence with the court within 30 days of the date of the change," with a declaration that the move meets the least-restrictive standard, delivered to everyone entitled to notice of the conservatorship and anyone who has requested special notice, unless the court waives delivery to prevent harm.⁴ Help for family caregivers in California →
Worked example
A daughter is conservator of her father, who has Alzheimer's disease and has twice been found walking on a highway at night. The general conservatorship lets her choose where he lives — but not a locked facility.¹ ⁴ To move him into one she petitions under section 2356.5 with a declaration from his neurologist addressing each of the four findings; the court appoints a lawyer for him; he attends unless excused; and the court must find, by clear and convincing evidence, that a secured facility is the least restrictive appropriate placement.¹ Once he is there, the court investigator "shall annually investigate and report," tells him he can object, and reports whether the power is still warranted.¹ Her advance notice of the proposed move goes out at least 20 days before it, and her notice of the change of residence is filed within 30 days after and delivered to everyone entitled to it.⁴
Q&A
Q: My father has dementia but no conservator. Can the family place him in memory care? A: Admission to a residential care facility for the elderly "shall continue to be voluntary on the part of the resident or with the lawful consent of the resident's legal conservator," and a non-conservatee entering a locked facility "shall sign a statement of voluntary entry."³ Without capacity to consent and without a conservator, the locked-door route runs through the court.
Q: Is this the same as an LPS conservatorship? A: No. This is a probate conservatorship power for a major neurocognitive disorder; the Lanterman-Petris-Short conservatorship for grave disability is a different proceeding under a different code, with its own criteria. CARE Court and conservatorship →
Q: Can my mother object once she is there? A: Yes. The investigator must tell her each year that she "has the right to object," and an objection triggers review by her attorney and, if warranted, a petition to the court.¹
Q: Can the conservator also consent to medication for the dementia? A: Only for "medications appropriate for the care and treatment of a major neurocognitive disorder," on the parallel findings under the same section, with the same clinician's declaration and the same annual review.¹ A conservatee under the general Probate Code powers "shall not be placed in a mental health treatment facility under this division against his or her will," and convulsive treatment "shall not be performed on a ward or conservatee under this division" — it may be given only under the Welfare and Institutions Code's own procedures.⁵ Can they give me ECT without my consent? →
Our therapist directory: See its current status →
Reporting duties around a conservatee: Will my therapist report elder abuse? →
Sources
- Cal. Probate Code §2356.5 — (a)(1)–(3) the legislative findings as quoted; (b) placement "in a secured perimeter residential care facility for the elderly operated pursuant to Section 1569.698 of the Health and Safety Code" upon "a court's finding, by clear and convincing evidence, of all of the following," and (b)(1)–(4) the four findings as quoted; (c)(1)–(3) the medication power and its findings; (d) the religious provision; (e) "shall not be placed in a mental health rehabilitation center as described in Section 5675 of the Welfare and Institutions Code, or in an institution for mental disease as described in Section 5900 of the Welfare and Institutions Code"; (f)(1) "The conservatee shall be represented by an attorney pursuant to Chapter 4 (commencing with Section 1470) of Part 1"; (j) "This section does not affect the laws that would otherwise apply in emergency situations"; (f)(2) "The conservatee shall be produced at the hearing, unless excused pursuant to Section 1893"; (f)(3) the declaration requirement as quoted; (f)(4) who may petition; (g) the annual investigation, the advice of "the right to object," the report on "whether powers granted under this section are warranted," and the attorney's 30-day duty; (h) termination under Section 2359 — california.public.law.
- Cal. Probate Code §2352.5 — (a) the presumption that "the personal residence of the conservatee at the time of commencement of the proceeding is the least restrictive appropriate residence for the conservatee," rebuttable "by clear and convincing evidence"; (b)(1)–(2) the level-of-care determination, "the measures that would be necessary to keep the conservatee in their personal residence," and the return plan or explanation — california.public.law.
- Cal. Health & Safety Code §1569.698 — (b)(1) a residential care facility for the elderly "that cares for people with major neurocognitive disorder may utilize secured perimeter fences or locked exit doors if it meets the requirements for additional safeguards required by those regulations"; (b)(2) "major neurocognitive disorder includes Alzheimer's disease and related disorders, diagnosed by a physician, that increase the tendency to wander and that decrease hazard awareness and the ability to communicate"; (b)(4) staff training regulations; (b)(7) "All admissions to residential care facilities for the elderly shall continue to be voluntary on the part of the resident or with the lawful consent of the resident's legal conservator"; (f) the statement of voluntary entry — california.public.law.
- Cal. Probate Code §2352 — (b) the conservator "shall select the least restrictive appropriate residence, as described in Section 2352.5"; (e)(1) "The guardian or conservator shall file a notice of change of residence with the court within 30 days of the date of the change," with a declaration that the change "is consistent with the standard described in subdivision (b)"; (e)(2) delivery of the notice to the persons entitled to notice under §1511(b) or §1822(b) and anyone who has requested special notice, with the court able to waive delivery "in order to prevent harm to the conservatee or ward"; (e)(3) advance notice of a proposed removal at least 20 days before the move, absent an emergency — california.public.law.
- Cal. Probate Code §2356 — (a) "A ward or conservatee shall not be placed in a mental health treatment facility under this division against his or her will"; (c) "Convulsive treatment as defined in Section 5325 of the Welfare and Institutions Code shall not be performed on a ward or conservatee under this division. Convulsive treatment may be performed on a ward or conservatee only as provided in Article 7 (commencing with Section 5325)" of the Welfare and Institutions Code — california.public.law.
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