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REMOVING DIRECTORS WITH
UNSOUND MINDS
 QUESTION: What is required to disqualify a director from serving on the board if they are of unsound mind? Does a mental health diversion assessment apply? –Noelle
ANSWER: Some believe that an unsound mind is a requirement for serving on the board. Maybe. However, it is always best when business-oriented volunteers with intact minds serve. Under California law, an HOA board may declare vacant the office of a director who has been declared of unsound mind by a final court order. (Corp Code § 7221)
Board Determination. A board cannot make its own evaluation that a director is unfit and summarily remove him/her from office. There must be a specific ruling resulting from a civil lawsuit (brought by shareholders, family members, or the board) seeking a formal declaration from a judge that the individual is mentally unfit to perform his/her fiduciary duties.
Mental Health Assessment. A "Mental Health Diversion Assessment" is not a judicial declaration that an individual is of "unsound mind." It is a pretrial criminal program used to pause prosecution for individuals whose qualifying mental health disorders contributed to a misdemeanor or felony. (Penal Code § 1001.36) It does not apply to corporate director disqualifications.
Memory Slips and Mood Swings. Before disqualifying a director, a court starts with a presumption that the director has the capacity to make board decisions. A medical diagnosis of early-stage dementia, Alzheimer's, or a mental health condition by itself is not sufficient for a court to declare someone of unsound mind. It is not enough to show that a director has memory slips or mood swings. The evidence must show a direct link between the mental deficit and the director's ability to appreciate the consequences of his/her corporate decisions or tasks.
Required Evidence. There must be evidence of a deficit in at least one of the following mental functions: (i) alertness, attention and ability to concentrate, (ii) severe deficits in short- or long-term memory, communication skills, logic, reasoning, or the ability to plan and understand regular business concepts, (iii) severe delusions, hallucinations, or highly disorganized thinking, or (iv) pervasive, severe, and recurrent emotional states, such as extreme apathy, panic, or unprovoked anger, that are highly inappropriate to the situation and block logical reasoning.
Filling the Vacancy. Once a court issues a final order or establishes a probate conservatorship, the board of directors can officially pass a resolution declaring the office vacant. Unless otherwise provided in the articles or bylaws, the vacancy may be filled by board appointment. If the vacancy is not filled by the board, the members may elect a director. (Corp Code § 7224)
LEGAL UPDATE
WEBINAR
 The Legislature was unusually busy this year.
With the 2026 legislative year now over, attorneys Farah Nourmand, Alison Greiner, and Melissa Ward will discuss the new laws and their impact on California's community associations.
The webinar will be held at 12 noon on Tuesday, October 13.
HIRING A TRANSACTIONAL
ATTORNEY
 We are seeking an experienced transactional attorney. If you are interested or know someone who may be a good candidate, please contact Adrian Adams by email or by phone at (800) 464-2817.
Potable Water. HOAs that irrigate their turf with potable water should have their water district inspect the turf and issue a written determination. We did that for our association, a 5-year-old community plumbed with potable water infrastructure, but neither the City nor the Water District required the builder to extend nonpotable water to the community. –Ted R.
CERT Training. I’ve been part of Poway CERT for a few years, and this is the first time I have seen anyone outside of the program promoting it. Thank you for promoting self-reliance and preparedness for your communities. –Tina S.
Architectural Applications. Thanks again for the incredible and informative newsletter and website. I've been using it for years and find it to be an amazing and vital resource. If a homeowner submits an architectural request, can the board deny the request if the homeowner has unpaid fines resulting from previous architectural violations? –Rick S.
RESPONSE: That is something we build into our CC&Rs--only members in good standing may submit architectural applications. If it's in yours, you can deny the request until such time as the member is in good standing. Contact us if you would like us to amend your CC&Rs.
Smoking Weed. Some jurisdictions prohibit marijuana in or within 20 feet of the front door or windows of multifamily units. Marin County is one such jurisdiction. -Ann V.
RESPONSE: Many municipalities have recognized the health problems associated with secondhand pot smoke and have restricted it in multifamily buildings. Boards can legitimately prohibit it in their buildings.
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DISCLAIMER. We serve as corporate counsel to California associations. Our newsletter provides commentary, not legal advice. Boards needing legal advice should have an attorney review the facts and law for their particular situation.
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