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general / Family Law

LPS conservatorships: a safety net

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2nd Appellate District, Division 8

Maria E. Stratton

Associate Justice, Los Angeles County Superior Court

The objective of this article and accompanying self-study test is to educate the bench and bar about how LPS conservatorships provide a safety net for those individuals who cannot fend for themselves due to a mental disease or disorder.

A conservatorship is a way to take charge of a person or estate. There are several types of conservatorships in California, each of which can be temporary or permanent. Each is established for a different type of mental or physical infirmity. In each, it must be shown that because of the infirmity, the proposed conservatee cannot provide for his or her basic personal needs of food, clothing or shelter, cannot handle his or her financial matters, and/or cannot resist undue influence by third parties who seek unfair advantage.

A conservatorship can be of the "person only" or of the "person and estate." Welfare & Institutions Code Section 5350. Once the need for a conservatorship is established, the court alone determines who is qualified and suitable to serve as conservator and decides which "powers" to give to the conservator and which "disabilities" to impose on the conservatee.

The Purpose of LPS Conservatorships and Grave Disability

LPS conservatorships were established by the Lanterman-Petris-Short Act, W&I Sections 5000-5599. They are intended to protect the well-being and civil rights of individuals who are "gravely disabled" as a result of a mental disease or disorder or chronic alcoholism. (Chronic alcoholism is now rarely a basis for an LSP conservatorship and will not be discussed in this article.) In addition, these conservatorships are intended to guarantee and protect public safety. W&I Section 5001(c). "Grave disability" is defined as the inability to provide food, clothing or shelter for oneself. W&I Section 5008(h); Conservatorship of Smith, 187 Cal. App. 3d 903 (1986).

The typical proposed LPS conservatee is a person who has been diagnosed with a mental illness (e.g., schizophrenia, bi-polar disorder, schizoaffective disorder, depression) and will not voluntarily accept treatment for the disorder. As a result, the proposed conservatee cannot attend to his or her activities of daily living. Practically speaking, if you put these individuals on a street corner, they would not be able independently to formulate or execute a plan for food, clothing or shelter because mental illness is interfering with their ability to think and act rationally.

Minors as well as adults can be conserved. A minor is considered "gravely disabled" if, as a result of a mental disorder, he or she is "unable to use the elements of life that are essential to health, safety and development, including food, clothing and shelter, even though provided to the minor by others." W&I Section 5585.25.

From the conservator's perspective, the best feature of an LPS conservatorship is that a conservator is given the authority to consent to the administration of anti-psychotic medication and to commit the conservatee involuntarily to a locked institution for treatment of the mental illness or disorder. The conservatorship is, above all else, a way to force a mentally ill person into treatment. W&I Section 5358(a); Conservatorship of Roulet, 23 Cal. 3d 219 (1979).

Powers and Disabilities

When the conservatorship is established, the court decides which "powers" to give to the conservator and which "disabilities" to impose on the conservatee. W&I Sections 5357, 5358. The most important powers are to fix the conservatee's residence (locked or unlocked placement); to consent or withhold consent for noninvasive medical procedures and treatment; and to consent or withhold consent for the administration of anti-psychotic medication. W&I Sections 5357, 5358.

The court also decides which "disabilities" to impose on the conservatee. These are personal civil or statutory rights that are taken away from the conservatee and not transferred to the conservator. The most important are the right to drive, to vote, to contract, and to possess firearms. W&I Sections 5357, 5358. If the right to drive, to possess firearms, or to vote is taken away, the court must notify the Department of Motor Vehicles, the California Department of Justice, and the county's election officials, respectively. LPS proceedings are presumptively nonpublic, meaning the proceedings are confidential, unless the conservatee waives the right to confidentiality. See Sorenson v. Superior Court, 219 Cal. App. 4th 409 (2013).

How to Commence a Conservatorship

LPS conservatorships are difficult to establish. They were created in the late 1960s to combat unwarranted involuntary commitments to mental institutions by private parties with unscrupulous motives (think Angelina Jolie in "Changeling" or Jack Nicholson in "One Flew Over the Cuckoo's Nest"). As a result of abusive commitments, the act sets strict standards that must be met before an LPS conservatorship can be established.

Typically, the process starts with a 911 call to a police or fire department. The call is prompted by unusual or bizarre behavior by the proposed conservatee that has frightened the caller: "My son is has been holed up in his room for days." "My sister is dancing on the freeway." "My father won't eat because he thinks we are poisoning his food." "My neighbor has put aluminum foil on all of his windows to protect himself from aliens." "There is a guy on the street corner ranting uncontrollably and threatening passers-by." 9ll responders arrive and if they determine that the person is gravely disabled or dangerous because of a mental disorder, they will take the person to a local LPS-designated hospital and commence a 72-hour involuntary psychiatric hold pursuant to W&I Code Section 5150. Ford v. Norton, 89 Cal. App. 4th 974 (2001).

At the end of the 72-hour hold, the treating psychiatrist will determine whether to release the patient or extend the hold another 14 days. There is a series of incremental holds to try to manage the illness and avoid the need for a conservatorship. A person can be held no longer than 47 days on an involuntary hold (initial three days, a first extension of 14 days, and a second extension of 30 days). If, during the involuntary hold period, the treating psychiatrist determines that the patient is gravely disabled due to a mental disorder and will not voluntarily accept treatment for the disorder, the psychiatrist will ask the public guardian to file an LPS conservatorship petition. (LPS conservatorships are reserved only for the "gravely disabled" (W&I Section 5008(h)); persons initially held because they were dangerous, and who remain dangerous but are not gravely disabled, are subject to different procedures not covered here. See People v. Superior Court (Ghilotti), 27 Cal. 4th 888 (2002).)

Unlike with other conservatorships, only the public guardian, the county's designated conservatorship investigation agency (W&I Section 5351), has the authority to initiate an LPS conservatorship. W&I Section 5352. This is of concern to family members who would like to file a petition themselves, but it is another safeguard of the statute. Practically speaking, unless the proposed conservatee comes to the attention of the public guardian by way of a Section 5150 hold, it is almost impossible to establish an LPS conservatorship. A public guardian investigator will review the facts and circumstances and recommend whether to file a petition. The investigator is required to look into and discard all available less restrictive alternatives to conservatorship before recommending a conservatorship. W&I Section 5354.

Rights Accorded the Conservatee

Once the petition is filed, the proposed conservatee has specifically enumerated rights - again, a safeguard against the abuses of the last century. The conservatee has the right to appointed counsel; the right to a speedy jury trial on the issue of grave disability; the right to a unanimous jury verdict; the right to confront, cross-examine and subpoena witnesses; the right against self-incrimination. The public guardian must prove beyond a reasonable doubt that the proposed conservatee is gravely disabled by reason of a mental disorder and that there is no less restrictive alternative to conservatorship. Conservatorship of Roulet.

If a conservatorship is established, the conservatee is guaranteed additional rights. The conservatee may petition for rehearing at any time (and then in six-month intervals if the initial petition for rehearing is denied). W&I Section 5358.3. The conservatee has a right to a placement hearing at any time if he or she objects to the conservator's choice of placement. W&I Section 5358.3. If the conservator determines that invasive medical treatment is necessary (e.g., surgery, dental extraction, colonoscopy) a petition must be filed to obtain authorization from the court. Scott v. Superior Court, 204 Cal. App. 4th 326 (2012). The conservatee can also petition the court at any time to reinstate rights that have been taken away. For example, if the court restores a conservatee's voting rights, the court shall so notify the county's election officials. W&I Section 5358.3; Elections Code Section 2210.

Evidentiary Issues at Trial

At trial, the trier of fact must consider the historical course of the proposed conservatee's mental disorder if it has a direct bearing on whether the person is gravely disabled. Such evidence includes medical and psychiatric records and testimony by family members, the patient, health care providers, and anyone else designated by the patient. W&I Section 5008.2(a). Expert testimony on the connection between the mental disorder and the proposed conservatee's inability to care for himself or herself may be based on hearsay. Conservatorship of Torres, 180 Cal. App. 3d 1159 (1986). The public guardian's investigative report is inadmissible at trial as hearsay. Conservatorship of Manton, 39 Cal. 3d 645 (1985). Lay opinion on whether the conservatee is able to provide for his or her basic needs is admissible. See W&I Section 5008.2(a).

A person is not gravely disabled if he or she can survive safely without involuntary detention with the help of responsible third parties who are both willing and able to help provide for the person's basic personal needs for food, clothing or shelter. W&I Section 5350(e)(1). However, unless the third parties testify in court or specifically indicate in writing their willingness and ability to help, their oral assurances of help must be disregarded by the court. W&I Section 5350(e)(2); Conservatorship of Johnson, 235 Cal. App. 3d 693 (1991).

Responsibilities of the Court

The court determines who should be appointed conservator. The public guardian's investigator will try to locate family members or other individuals who are willing and suitable to act as conservator. If no such persons are available and willing, the public guardian will be appointed. See W&I Section 5350; Probate Code Section 1812.

Unlike other conservatorships, LPS conservatorships expire automatically after one year by operation of law. W&I Section 5361. This is so on the theory that once a conservatee begins treatment to manage the mental illness, the grave disability will dissipate along with need for a conservatorship. As a practical matter, however, most LPS conservatorships are extended year after year either because the mental illness cannot be managed effectively; the conservatee cannot be counted upon to continue voluntary treatment without a conservatorship; or the conservatee consents to reappointment because the idea of having a "safety net" in the event of a relapse is positive.

Sixty days before the expiration of the conservatorship, the clerk of the court must notify the conservator of the upcoming expiration date. At that point it is the conservator's responsibility to file a petition to be reappointed. W&I Section 5350. The public guardian does not conduct another investigation into the need for reappointment. In support of reappointment, the conservator must submit two physician or psychologist declarations stating under penalty of perjury that the conservatee remains gravely disabled because of a mental disorder. W&I 5361; Conservatorship of Guerrero, 69 Cal. App. 4th 442 (1999). If the conservatee objects to reappointment of the conservator, the conservatee may exercise all of the same rights available at the initial appointment proceedings. W&I Sections 5350(d), 5362(a).

It is the court's responsibility to supervise the actions of the conservator. Placement decisions are ultimately the court's responsibility. Mismanagement of the conservatorship can and should be brought to the attention of the court at any time. The conservatee's appointed counsel is not discharged upon establishment of the conservatorship and is available to assist the conservatee at any time. The court may remove a conservator and appoint a successor conservator, if necessary due to death, illness, or malfeasance.

#195

Ben Armistead


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