Mcle Self-study Article Lps, General, and Limited Conservatorships: Where We Were, Where We Are and Where We Might Be Going

• Publication year: 2022

MCLE SELF-STUDY ARTICLE LPS, GENERAL, AND LIMITED CONSERVATORSHIPS: WHERE WE WERE, WHERE WE ARE AND WHERE WE MIGHT BE GOING

Written by Mark Schmuck, Esq.^*

I. INTRODUCTION

Protective proceedings that are designed to protect vulnerable adults, generally known in California as conservatorships, are familiar to trust and estate practitioners. However, even the most seasoned trust and estate attorneys may not be intimately familiar with the different types of conservatorships that are available to protect those that are afflicted with serious mental disorders.

This article will describe the basic structures for conservatorships in California, including Lanterman-Petris-Short Act ("LPS") conservatorships, probate conservatorships and limited conservatorships.¹ This article will then discuss recently enacted legislation that affects those proceedings, especially Assembly Bill No. 1194 (2021-2022 Reg. Sess.) regarding probate conservatorships that went into effect in 2022. Finally, this article will discuss pending and anticipated bills that could be enacted in the near future that could affect adult protective proceedings.

II. PROCEEDINGS UNDER THE WELFARE & INSTITUTIONS CODE

Conservatorships under the Welfare & Institutions Code are complicated. There are multiple cross-references to other provisions in the Welfare & Institutions Code, the Probate Code, the Health & Safety Code, and even the Penal Code. Among the stated purposes of the Welfare & Institutions Code conservatorships is to end the former practice of indefinitely confining people with mental health disorders, developmental disabilities and chronic alcoholism, and to provide treatment to those most vulnerable.² To the extent that the Code provides for services to people who are involved with the criminal justice system, the protective proceedings are designed to treat those people as sick persons, not as criminals.³

As discussed below, there are two types of "long(er)-term" conservatorships available to vulnerable adults with mental disorders. LPS and Murphy conservatorships generally are designed to treat persons with "mental health disorders" that typically develop during adulthood or arise as a result of a brain injury or disease.⁴ The discussion below focuses on the substance and procedures of general LPS conservatorships and Murphy conservatorships. Provisions regarding shorter-term commitments (such as 72-hour "holds" pursuant to Welfare & Institutions Code section 5150 and intermediate-term commitments pursuant to Welfare & Institutions Code section 5250) and temporary proceedings are beyond the scope of this article. Practitioners interested in a full survey of all protective proceedings are encouraged to study the relevant provisions of the Welfare and Institutions Code, specifically Welfare & Institutions Code sections 5000 et seq.

A. LPS Conservatorships

"LPS" stands for the "Lanterman-Petris-Short Act" (the "LPS Act"), after the state legislators who originally proposed

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its provisions in 1967. The LPS Act is found at Welfare & Institutions Code sections 5000-5500. Broadly speaking, LPS conservatorships are designed to provide individualized treatment, supervision and placement for those who are "gravely disabled."⁵ "Gravely disabled" means, for purposes of an LPS Conservatorship, "[a] condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing or shelter."⁶ The term "gravely disabled" also includes a person who is unable to provide for these basic personal needs as a result of chronic alcoholism.⁷ As discussed in the following section with regard to Murphy Conservatorships, the term "gravely disabled" has a third possible definition when dealing with a person who has a mental health disorder and is involved with the criminal justice system.⁸

LPS conservatorship petitions are filed by the County Counsel of the county in which the proceeding takes place.⁹The conservatorship petition is often filed in connection with a person who is on a 72-hour temporary mental health "hold" pursuant to Welfare & Institutions Code section 5150, or on a longer hold pursuant to Welfare & Institutions Code section 5250. The person in charge of the facility in which the patient is held ordinarily recommends to the county conservatorship investigator that a conservatorship is necessary.¹⁰ If the county conservatorship investigator concurs with the recommendation, the investigator must file a conservatorship petition.¹¹ Note that the county conservatorship investigator is the only person who is authorized to file an LPS conservatorship petition.¹² The conservatorship investigator's decision on whether to file a petition is discretionary, and that decision may only be reviewed for an abuse of discretion through a civil Writ of Mandate.¹³ The investigator is required to "investigate all available alternatives to conservatorship and [to] recommend conservatorship to the court only if no suitable alternatives are available."¹⁴

Once an LPS conservatorship petition is filed, the judicial proceedings are governed by the same procedures as probate conservatorships,¹⁵ with a number of exceptions. Some of those exceptions include: (1) a conservator may be appointed for a gravely disabled minor;¹⁶ (2) the appointment of a conservator is subject to the same list of priorities as set forth in Probate Code section 1812, though that is subject to modification on recommendation by the conservatorship investigator;¹⁷ and (3) an LPS conservator of the estate may not be appointed if there is a probate conservator of the estate.¹⁸ The court is also required to appoint the public defender or another attorney for the proposed conservatee within five days of the date the petition is filed.¹⁹ The proposed conservatee has the statutory right (not a Sixth Amendment right) to the effective assistance of counsel because LPS proceedings are civil in nature.²⁰ The LPS Act also has provisions that provide for the appointment of a temporary conservator in appropriate emergency circumstances.²¹

1. Right to a Jury Trial

Among the most litigated issues that set LPS conservatorships apart from probate conservatorships is the right of the proposed conservatee to demand a jury trial on the issue of whether the proposed conservatee is gravely disabled.²² This is such an important right that the failure to address it or to ensure that the right was properly exercised is a violation of the proposed conservatee's due process rights.²³ The proposed LPS conservatee must be personally notified of the right to a jury trial by the court if the proposed conservatee is willing and able to appear.²⁴However, there is no requirement that the proposed conservatee personally waive the right to a jury trial on the record, and, absent evidence of a contrary desire by the proposed conservatee, a jury trial waiver by counsel is sufficient.²⁵

If the conservatorship petition is contested by the proposed conservatee, the matter proceeds to trial. The burden of proof imposed on the petitioner in seeking a conservatorship is substantial. The petitioner must prove beyond a reasonable doubt that the proposed conservatee is gravely disabled.²⁶ The petitioner is not required to prove that the proposed conservatee is unable or unwilling to accept meaningful treatment, but the trier of fact may consider this fact in reaching its conclusion.²⁷ Furthermore, a person is not "gravely disabled" if responsible family, friends or others are willing and able to help provide for the person's basic needs for food, clothing, or shelter.²⁸However, the court may not consider a person's willingness to help unless they indicate that willingness in writing.²⁹ In a jury trial, jury unanimity is required for a finding of grave disability.³⁰ Nine of twelve jurors are required for a finding that the proposed conservatee is not gravely disabled.³¹

2. Testimony By Proposed Conservatee at Trial

Another important topic regarding LPS conservatorship litigation is whether a proposed LPS conservatee can be compelled to testify at trial. This issue was at least partially addressed by the California Supreme Court in Public Guardian of Contra Costa County v. Eric B.³² In Eric B., the Supreme Court considered the conservatee's argument that, because the right to silence is statutorily afforded to criminal defendants who are not guilty by reason of insanity ("NGI"), the same right should be afforded to LPS conservatees as a matter of Equal Protection.

In examining the issue, the Supreme Court found that LPS conservatees are similarly situated to NGI defendants because both proceedings involve the loss of liberty and some civil rights such that unequal treatment must be

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justified in order to pass muster. Unfortunately, the court did not reach the issue of justification because Court of Appeal had found that any error in compelling the conservatee to testify was harmless, a finding that the conservatee did not challenge. The court stated that, in the absence of harmless error, the case would have been remanded so that there could be an examination and a lower court ruling regarding whether there was justification for treating NGI defendants and LPS conservatees differently on the issue of compelled testimony.³³ Therefore, at least in the short term, it appears likely that County Counsel will be required at the trial court level to put forth reasons why LPS conservatees should be required to testify against themselves so that the issue can be teed up for a final decision in the future by the Court of Appeal or possibly by the Supreme Court.

3. Powers of the LPS Conservator

If the court finds that a conservatorship is appropriate, most often the Public Guardian is appointed as the conservator of the person and/or estate, though the conservatorship investigator may designate "the most suitable person, corporation, state or local agency or county officer, or employee designated by the...