San Diego Superior Probate Court Judge Julia C. Kelety Restored Conservatee’s Right to Vote

gavelCiting a new California law that strengthened the voting rights of people with developmental disabilities, the Judge Kelety, of the San Diego Superior Court, said the injured man, David Rector, may not be barred from the voting booth.  Mr. Rector lost [his voting] rights in 2011 when a conservator after a brain injury left him unable to walk or speak. The new standard for disqualifying a conservatee from voting is established by SB 589, most prominently in an amendment to Elections Code section 2208(a)3 , as follows: (a) A person is presumed competent to vote regardless of his or her conservatorship status. A person shall be deemed mentally incompetent, and therefore disqualified from voting, if, during the course of any of the proceedings set forth below, the court finds by clear and convincing evidence that the person cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process, and . . . [a] conservator for the person or the person and estate is appointed pursuant to Division 4 (commencing with Section 1400) of the Probate Code.

The Standard for a Conservatorship

  • Clear and Convincing Evidence is required, “so clear as to leave no substantial doubt”
  • Presumption is that proposed conservatee has capacity. (Probate Code §810 (a))
  • Must Be Last Resort – Probate Code §1821(a)(3): Petitioner must inform court of alternatives to conservatorship and why the alternatives will not work.

The need for a conservatorship must be shown by “clear and convincing evidence.” Probate Code §1801(e); see Conservatorship of Sanderson 106 Cal.App.3d 611, 620 (1980) Probate Code §1800.3 provides: “(a) If the need therefor is established to the satisfaction of the court . . . , the court may appoint: (1) a conservator of the person or estate of an adult, or both. (b) No conservatorship of the person or the estate shall be granted by the court unless the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.”  “Clear and convincing” evidence is “evidence of such convincing force that it demonstrates a high probability of the truth of the fact(s) for which – it is offered as proof. “  The Supreme Court has been even more forceful in describing this standard as requiring evidence that is “clear, explicit, and unequivocal,” “so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” fn Re Angelia P .. 28 Cal.3d. 908. 919; People v. Martin 2 Cat.3d 822 (1970); People v. Contso. 68 Cal.2d 183. 190  These are powerful definitions.  Now, even if conserved, an individual may till maintain the dignity of participating in the election process.

We are here to help you and your loved ones.  To discuss your needs and discover your options, consult the Los Angeles incapacity, conservatorship,  and estate planning attorneys at Ginzburg & Bronshteyn, LLP.  We serve clients in Los Angeles, Orange County, Ventura County, and throughout Southern and Northern California including Agoura Hills, Beverly Hills, Calabasas, Camarillo, Encino, Hidden Hills, Irvine, Lake Sherwood, Marin County, Oxnard, Palo Alto, Pasadena, San Francisco,  Santa Monica, Simi Valley, Tarzana, Thousand Oaks, Torrance, Ventura, West Los Angeles, and Woodland Hills. Our attorneys are renowned for producing high quality work and working diligently to achieve our client’s goals. We have developed a reputation for effective representation in complex and sophisticated matters as we guide you through the complex legal process. We are experienced in obtaining and defending against conservatorships. Contact us by calling (310) 914-3222 in Los Angeles, or (818) 787-1011 in Westlake Village, or by using our online contact form.

Once again Conservatorships, while intended to exist for the benefit of the protected person, can sometimes become complicated and contentious. If you find yourself in a conservatorship that has become legally combative, consult the conservatorship attorneys at Ginzburg & Bronshteyn. Our experienced Los Angeles conservatorship attorneys are here to help clients in Santa Monica, Ventura County, Orange County, Northern California and throughout Southern California defend their rights under the law. To contact our skilled attorneys, please contact Ginzburg & Bronshteyn, LLP online or call us at (310) 914-3222 or (818) 787-1011.

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