NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

FYBEL, Acting P. J.

INTRODUCTION

A conservatee suffering from probable Alzheimer's disease was placed in a care facility when her personal residence of more than 25 years became unsafe for her to live in. Several years later, the trial court was asked to determine whether the care facility or the conservatee's former residence would provide the least restrictive appropriate residence for her. The conservatee's nephews and niece sought to keep her in the care facility. The conservatee's guardian ad litem and court-appointed attorney requested that she be allowed to return to her former home. After a contested evidentiary hearing, the trial court found that the least restrictive, most appropriate placement for the conservatee was her former home, and directed the conservator to make any necessary repairs or modifications to the residence before moving the conservatee. The nephews and niece appeal.

We affirm. Under the appropriate test, there was sufficient evidence to overcome the presumption that the care facility in which the conservatee has been residing is the least restrictive appropriate placement for her. The trial court acted within its discretion in making its findings.

STATEMENT OF FACTS

The conservatee, currently age 93, suffers from dementia. In December 2014, the conservatee temporarily moved out of her longtime residence, and into a senior living facility, while repairs were completed on her residence.

The conservatee has no children; her sister Shirley McGrath and Shirley's children Roe McGrath, Greg McGrath, Duff McGrath, Lindy Johnson, and Monette McGrath are her natural heirs.1 For more than 25 years, the conservatee made her home in Newport Beach (the Residence).

In 2009, the conservatee amended and restated her trust. In relevant part, the trust document provides: "It is the Trustor's further desire that the Trustee provide nursing care to the Trustor in the Trustor's residence, so long as the Trust Estate contains adequate funds for such upkeep. The Trustor authorizes the Trustee to take such steps as are necessary to honor the Trustor's desires, as expressed above, including, but not limited to, modifying the residence, hiring homecare providers (including round-the-clock nursing care), obtaining such equipment as might assist in homecare, or taking such other measures as the Trustee considers advisable under the circumstances. In exercising the Trustee's discretion, the Trustee shall take into consideration any other income or financial resources available to the Trustor so far as known to the Trustee."2 The conservatee had named Roe to act as the successor trustee of her trust. A power of attorney signed by the conservatee gave Shirley her power of attorney; if Shirley was unable to act, Roe was named the first alternate and Duff was named the second alternate. Shirley was determined by her children to be unable to act for the conservatee, and Roe stepped aside in favor of Duff. The conservatee's nephew Greg was named as her representative in her health care directive; Duff is the first alternate, and Shirley is the second alternate.

Before 2014, the conservatee was living with Shirley at the Residence; Monette was providing care for the conservatee. Beginning in 2014, the conservatee's family and friends became concerned that she was not being properly cared for, and that her health was at risk. The conservatee was not taking her medications, was not being properly fed, was not receiving adequate hygiene care, and was not being taken to medical appointments. The conservatee was moved to the senior living facility after a water leak at the Residence necessitated major repairs. Her physical condition improved after the move, and her mental condition appeared to stabilize. Greg, Duff and Duff's wife, Janet D. McGrath, refused Shirley and Monette's attempt to move the conservatee back to the Residence.

The conservatee told Duff she wanted to stay at the senior living facility because "they take good care of me here."

The conservatee's neurologist diagnosed her with probable Alzheimer's disease after ruling out all other possible problems that could be causing her cognitive decline and other symptoms. The conservatee was not always oriented to time, place, and situation, and needed help with day-to-day activities. The neurologist believed that her ability to convey her desires was "compromised," and her capacity to consent was impaired. The neurologist believed the senior living facility was the most appropriate setting for the conservatee because she was receiving appropriate supervision and stimulation. He further testified that a change in her environment could be detrimental, and cause "acute confusional states."

A geriatric care expert testified that either the senior living facility or the Residence would be "do-able" as a residence for the conservatee. Returning the conservatee to the Residence would require structural work in the bathroom. Twenty-four hour care at the Residence would cost about $200,000 per year. In the expert's opinion, the conservatee would be better off at the senior living facility because a change in her environment would be "very unsettling and disturbing to someone with cognitive impairment." The conservatee told the expert she wanted to stay at the senior living facility, and did not want to return to the Residence because she would be lonely there. The expert testified the senior living facility is safe, the conservatee is happy and well cared for there, and she has lots of activities in which to participate.

The geriatric care expert opined that the cost to provide 24-hour in-home care for the conservatee at the Residence would be at least $192,000 per year. Certain modifications would be required to the property, at a cost of about $20,000. The cost of care at the senior living facility is $8,700 per month. The conservatee's monthly income from all sources is about $11,000 per month. Her house, which is valued at $1.6 million, is owned outright, and she also owns two stock portfolios valued at $190,000 each.

Dr. Stephanie Moore, a clinical psychologist who performed a cognitive evaluation of the conservatee, could not opine whether the senior living facility would be a better or safer residence for the conservatee than would the Residence. She did opine: "You always get better care when you're in your own home and you have private caregivers that care about you and are consistent in their treatment." The conservatee told Moore she would like to live at the senior living facility. Moore noted that, given the conservatee's declining cognitive state, the conservatee was unable to weigh the benefits and risks of different living situations.

The conservatee repeatedly told her guardian ad litem that she wanted to return to the Residence and live with Shirley. On the guardian's more recent visit, the conservatee said it would be okay to stay at the senior living facility; the guardian believed that her capacity had declined. The guardian ad litem believed the best living option for the conservatee would be at the Residence with 24-hour caregivers, based on the conservatee's strongly expressed desires.

The conservatee's court-appointed conservator inspected the Residence and felt that with some modifications it would be appropriate for the conservatee. The conservator felt in-home caregiving would provide a more flexible alternative, and always preferred to have her clients placed in their own homes if possible. The conservator estimated the cost of necessary in-home care to be $23,000 per month.

PROCEDURAL HISTORY

In March 2015, Duff and Janet filed petitions requesting their temporary appointment and general appointment as conservators of the person and estate of the conservatee. The court granted their appointment as temporary conservators, set the conservatee's residence at the senior living facility, and appointed an attorney, Ernest Hayward, to represent the conservatee. Later, a guardian ad litem was appointed to represent the conservatee. Hayward filed a petition asking that an independent conservator, Margo Richardson, be appointed.

Greg filed a separate petition requesting the appointment of Lee Ann Hitchman and Bruce Hitchman as conservators of the person and estate of the conservatee. Ultimately, the parties reached a negotiated settlement of all issues other than the conservatee's residence. Hayward's challenge to Duff as successor trustee of the conservatee's trust was withdrawn, and Duff agreed to provide funds from the trust estate to the conservator, without unreasonable delay, to provide for the conservatee's care. Sally Cicerone, an independent professional fiduciary, was appointed as the conservator of the person and estate of the conservatee. It was further agreed that the court would decide where the conservatee would reside.3 The court approved the parties' settlement agreement as an order of the court.

After a contested evidentiary hearing, the trial court found that the least restrictive placement for the conservatee would be the Residence, and that she should be moved from the senior living facility as soon as all necessary repairs and remodeling of the Residence were complete; a detailed statement of decision was attached to and incorporated in the minute order. Duff, Janet, and Greg (appellants) filed a notice of appeal from the court's order.

DISCUSSION

We review the trial court's order giving instructions to the conservator for abuse of discretion. (Estate of Denton (1971) 17 Cal.App.3d 1070, 1075.) We review the trial court's factual findings for substantial evidence. (Manson v. Shepherd (2010) 188 Cal.App.4th 1244, 1259; Guardianship of K.S. (2009) 177 Cal.App.4th 1525, 1529-1530; Estate of Beard (1999) 71 Cal.App.4th 753, 778-779.)4

Generally, it is the responsibility of the conservator to select the conservatee's residence. The criteria to be used in this decision are: Is this the least restrictive appropriate residence? Will it meet the needs of the conservatee? Is it in the conservatee's best interests? (Prob. Code, § 2352, subd. (b).) The Probate Code creates a rebuttable presumption that the conservatee's residence at the time the proceeding is commenced is the least restrictive appropriate residence. (Prob. Code, § 2352.5, subd. (a).) In this case, the selection of the conservatee's residence was left to the trial court, by agreement of the parties. The same criteria, however, applied to the court's decision.

Because the conservatee was living at the senior living facility at the time the conservatorship proceedings were instituted, that was presumed to be the least restrictive appropriate residence for her. The burden was on respondents to rebut that presumption with evidence that moving the conservatee back to the Residence was more appropriate.

The trial court specifically noted in its statement of decision that it was not giving any weight to the conservatee's recently expressed desires about her residence because she expressed a desire to return to the Residence as often as she expressed a desire to remain at the senior living facility. The testimony from all lay and expert witnesses regarding the conservatee's confusion and lack of capacity supports this finding. However, before the conservatee became unable to express her true desires, she had set those desires out in her trust. The trust document specifically requests that she be provided nursing care in her home at the Residence. Thus, the only expression of the conservatee's desire of where to live that was made when she was lucid, points toward the Residence.

There was no evidence that the Residence, after undergoing modifications and without Shirley and Monette, was not an appropriate and safe residence for the conservatee.

The senior living facility provided the opportunity to participate in activities and eat meals with other residents. The Residence provided more flexibility in terms of outings, activities, and visitors, although there might be less socialization. Remaining at the senior living facility would presumably avoid any distress that might be caused by a change in location. But the conservatee's apparent ability to remember the Residence could make the transition less difficult.

The biggest factor influencing the trial court was the attention that could be provided to the conservatee by a one-on-one caregiver in the Residence. As the court noted, even the best facilities have a single staff member responsible for multiple residents, making it more difficult to respond immediately to any patient's needs.

Finally, the trial court found that the conservatee possesses sufficient resources to be able to afford in home care for the next five to six years. That finding was amply supported by the testimony regarding the cost of in-home care, and the value of the conservatee's assets.

In short, the trial court properly exercised its discretion in determining that the least restrictive, most appropriate placement for the conservatee would be in her former home at the Residence, as appropriately modified.

DISPOSITION

The order is affirmed. Respondents to recover costs on appeal.

IKOLA, J. and THOMPSON, J., concurs.