There are multiple documents when petitioning the court for a conservatorship of the person. One of these is a judicial council form known as the Capacity Declaration (GC-335).
Capacity Declaration – What is it?
A capacity declaration is a form specifically used in conservatorships cases. The form was created by the California judicial council (the policymaking body of the California courts) to be used in all 58 California County probate courts. It is a mandatory form, so it must be completed and filed in each and every conservatorship case in California. It is required to be in the file prior to the initial conservatorship hearing. This is so that the probate examiner (person employed by the probate court to review cases to be sure all necessary requirements are met) can review the document, note any deficiencies and alert the Judge.
Is the Capacity Declaration Required?
When to File the Capacity Declaration
Capacity Declarations can be filed with the Petition for Appointment of Probate Conservator or afterward as long as it is filed prior to the hearing. If this document is not filed at the same time of the petition, it should be filed early enough to leave enough time for it to be reviewed by the probate examiner before the hearing. Filing the capacity declaration the morning before the hearing, or even a day or two before the hearing, will not be enough time with respect to the probate examiner doing their job. If it has not been filed and reviewed prior to the hearing the court could continue the hearing to provide time to review the information and for completeness.
A major reason why a capacity declaration wouldn’t be filed with the petition is if waiting for this form to be completed by a doctor could delay the filing of the petition. The Petition for conservatorship does have options to indicate (Page 6, Question 9 a.) if the capacity declaration is filed with the petition or if it will be filed at a later date. When we here at Just Document Preparation complete conservatorships for our clients, we do what we can to help make sure it is completed and included with the initial petition filing whenever possible.
Who Completes the Capacity Declaration?
While most of the forms in a Conservatorship proceeding are prepared by the petitioner, their attorney or their legal document assistant, this form is to be completed by the proposed conservatee’s (the person who the petitioner seeks to have the court appoint a conservator) physician, psychologist or religious healing practitioner. There is a section on page one where they will indicate their profession and experience as well as when they last examined the patient and if the proposed conservatee is a full time patient or not.
It is best to plan ahead for having the doctor/medical professional complete this form. They typically do not complete and return while you wait. They will review medical records and history so that they can provide the most accurate assessment possible. Typically, this form is left with the doctor and picked up in a few days at the soonest or a few weeks. If the proposed conservatee has an appointment to be seen with the medical professional, it might be completed at the appointment. The medical professional or their staff is not required to file the form with the court so a trip to retrieve the document is typically the petitioner’s responsibility. Before leaving the doctor’s office with the completed document, it is a good idea to check it. There is more than one place where the doctor needs to sign, initial and date. It is easy for them to miss something, causing more paperwork to be competed and filed at the court. A petitioner can familiarize themselves with the form prior and even place date and sign stickers to make it more evident to the medical professional as many have not seen the document before.
What information is on the Capacity Declaration?
The capacity declaration is a three page form, which also can include additional attachments, that provides a complete medical overview of the proposed conservatee. A common attachment to the form is the GC-335A, previous to its update on January 1, 2019, the form was labeled as “Dementia Attachment”. January of 2019, the contents of the form attachment remain similar, but the new form title is “Major Neurocognitive Disorder Attachment”. This attachment can be added so the physicians can further elaborate on these types of conditions as well as describe if the proposed conservatee should be placed in a secured treatment facility.
The questions are geared to get a general understanding of the mental capabilities of the proposed conservatee. Most of the questions have multiple available answers on a sliding scale from “no apparent impairment” all the way to “so impaired as to be incapable of being assessed”. The topics covered range from “Alertness and Attention” to “Thought Disorders”. It also includes a section regarding the ability of the proposed conservatee to consent to their own medical treatment.
Capacity Declaration Summary
In summary, the capacity declaration is a required form used in California conservatorship cases. It is completed by a medical professional who has experience and current knowledge of the proposed conservatee’s medical status. The form serves as a general medical overview of the proposed conservatee and gives the court valuable information to determine whether or not a conservatorship is necessary.
