Grave Disability Standard and Jury trial notice
Conservatorship of Benvenuto, 180 Cal. App. 3d 1030
The conservatorship of Benvenuto deals with whether conservatees can be adjudicated gravely disabled based on future relapse. The trial court found that if released from conservatorship, Benvenuto would become gravely disabled in the future due to noncompliance. Furthermore the court had failed to provide the proposed conservatee with written notice of his right to a jury trial. This case covers the key questions of whether the present grave disability matters and how much medication compliance should be weighed in the deciding factors of whether an LPS conservatee is gravely disabled.
The trial court found the conservatee gravely disabled and reappointed the public conservator as conservator of the person of Benvenuto based on the fact that the conservatee could be become gravely disabled in the near future. The conservatee filed an appeal the same day. Upon appeal the court of appeals reversed the decision citing misapplication of the law with failure to provide written notice of jury trial rights and misinterpretation of the gravely disabled standard.
In regards to the present grave disability standard.;
The trial court noted that "Benvenuto has no overt symptoms but still displays two residual symptoms; he shows some depression and has the feeling that people don't like him. Because of the medication Benvenuto presently has the ability to provide for his food, shelter, and clothing needs". The conservatee contended that his case was analogous to that of a Murphy conservatorship. The court affirmed his statement but reminded him that a Murphy conservatorship is no different in the burden of proof needed than an LPS conservatorship. In addition, the court cited how a LPS conservatorship is a serious derivation of civil liberties and the court must judiciously apply the principals of LPS statute in determining whether a conservatee is gravely disabled. and miss-applying the law would result in many inappropriate conservatorships. The court cited how it did not want to set the grave disability at a standard of such "probabilistic pessimism". Rather, the court would prefer to use several factors to determine the grave disability standard; ie noncompliance, medical history, ability to care for food, clothing, and shelter".
"[t]he law must still strive to make certain that only those truly unable to take care of themselves are being assigned conservators under the LPS Act and committed to mental hospitals against their will."
The second matter of notice of jury trial is a procedural issue. This is a case of where the court argues more of a principal of the matter than procedural adherence. The public conservator argues that this is a reversible error that can be remedied by the counsel providing notice orally to the conservatee on the day of the hearing or through phone conference.
The unstated claim implicit in the conservator's argument is that it should be presumed that counsel informed Benvenuto of his right to jury trial. But if a petition for reappointment is filed, counsel must always be appointed for the conservatee. Therefore, by the conservator's logic, failure to send the section 5362 notice would invariably be cured in the ordinary course of events.
The appellate court contends that this is not an issue that can be remedied through later actions. The court reminds again that LPS conservatorships are an even greater deprivation of civil liberties than probate and need to be treated with the same level as criminal proceedings. The court seeks to preserve the:
formal advisements of the right to jury trial on the record [as to] to safeguard against the loss of the fundamental right to jury trial [for the conservatee]
The court found that by simply appointing counsel and hoping that they inform the conservatee of the nature of the upcoming proceedings is not enough. The court needs to have formal notice that the conservatee of made aware of his rights and that recording have notice be taken and a formal record be made.. Without such a record, the court has no way of truly knowing if the conservatee was informed. In addition, the public conservator tried to defend their position begging the question of whether notice of jury trial was really necessary. If the conservatee had enough insight to know that he was legally entitled to notice then did he really need a formal notation on the record. The court overruled the public conservator's argument and ordered that the conservatorship order be reversed. The court again reminded everyone that no matter the level of insight all parties are entitled to the same rights to be served with proper notice.
Implicit in the statutory requirement for written notice of the right to jury trial is the conclusion that the mandatory appointment of counsel is insufficient to insure that the fundamental right to jury trial will be brought home to the LPS conservatee.
It would be an analytical "Catch-22" to presume Benvenuto knew he had the very right of which he complains he was not informed. "'Absent an understanding by the patient of the nature of his detention and of his rights, it is difficult to perceive how he could knowingly decide whether or not to exercise them.
Despite all of this the appellate court reversed the order appointing the pubic conservator conservator over the person of Benvenuto.
Procedural Posture
Appellant individual sought reversal of the order entered by the Superior Court of Placer County (California) which reappointed respondent guardian as conservator of appellant's person and estate, contending that the trial court erred in finding him still gravely disabled and in failing to inform him of his right to jury trial on the issue of whether he was gravely disabled.
Overview
Respondent guardian was appointed conservator of the person and estate of appellant individual, under the Lanterman-Petris-Short Act,Cal. Welf. & Inst. Code § 5350 et seq., based upon a finding that he was gravely disabled as a result of a mental disorder. Appellant was placed in a mental health facility for treatment. After a year, respondent petitioned for reappointment. At the hearing, appellant's doctor testified that, because of medication, appellant presently had the ability to provide for his food, shelter, and clothing needs, but if he did not continue with the medication, he would be likely to regress and become gravely disabled in a fairly short period of time. Appellant testified that he did not intend to continue with the medication. The trial court found him still gravely disabled and reappointed respondent. On appeal, the court held the evidence demonstrated that appellant was not presently gravely disabled. The reappointment could not be based upon a perceived likelihood of future relapse. Further, appellant was not given the written notice of the right to a jury trial, required by § 5362, and not a harmless error. Both errors required that the order be overturned.
Outcome
The court reversed the trial court's order which reappointed respondent guardian as conservator of appellant individual's person and estate because the reappointment could not be based on the likelihood of future relapse and the evidence demonstrated that he was not presently gravely disabled. Further, appellant was not given written notice of his right to a jury trial.
Conservatorship of Benvenuto, 180 Cal. App. 3d 1030
The conservatorship of Benvenuto deals with whether conservatees can be adjudicated gravely disabled based on future relapse. The trial court found that if released from conservatorship, Benvenuto would become gravely disabled in the future due to noncompliance. Furthermore the court had failed to provide the proposed conservatee with written notice of his right to a jury trial. This case covers the key questions of whether the present grave disability matters and how much medication compliance should be weighed in the deciding factors of whether an LPS conservatee is gravely disabled.
The trial court found the conservatee gravely disabled and reappointed the public conservator as conservator of the person of Benvenuto based on the fact that the conservatee could be become gravely disabled in the near future. The conservatee filed an appeal the same day. Upon appeal the court of appeals reversed the decision citing misapplication of the law with failure to provide written notice of jury trial rights and misinterpretation of the gravely disabled standard.
In regards to the present grave disability standard.;
The trial court noted that "Benvenuto has no overt symptoms but still displays two residual symptoms; he shows some depression and has the feeling that people don't like him. Because of the medication Benvenuto presently has the ability to provide for his food, shelter, and clothing needs". The conservatee contended that his case was analogous to that of a Murphy conservatorship. The court affirmed his statement but reminded him that a Murphy conservatorship is no different in the burden of proof needed than an LPS conservatorship. In addition, the court cited how a LPS conservatorship is a serious derivation of civil liberties and the court must judiciously apply the principals of LPS statute in determining whether a conservatee is gravely disabled. and miss-applying the law would result in many inappropriate conservatorships. The court cited how it did not want to set the grave disability at a standard of such "probabilistic pessimism". Rather, the court would prefer to use several factors to determine the grave disability standard; ie noncompliance, medical history, ability to care for food, clothing, and shelter".
"[t]he law must still strive to make certain that only those truly unable to take care of themselves are being assigned conservators under the LPS Act and committed to mental hospitals against their will."
The second matter of notice of jury trial is a procedural issue. This is a case of where the court argues more of a principal of the matter than procedural adherence. The public conservator argues that this is a reversible error that can be remedied by the counsel providing notice orally to the conservatee on the day of the hearing or through phone conference.
The unstated claim implicit in the conservator's argument is that it should be presumed that counsel informed Benvenuto of his right to jury trial. But if a petition for reappointment is filed, counsel must always be appointed for the conservatee. Therefore, by the conservator's logic, failure to send the section 5362 notice would invariably be cured in the ordinary course of events.
The appellate court contends that this is not an issue that can be remedied through later actions. The court reminds again that LPS conservatorships are an even greater deprivation of civil liberties than probate and need to be treated with the same level as criminal proceedings. The court seeks to preserve the:
formal advisements of the right to jury trial on the record [as to] to safeguard against the loss of the fundamental right to jury trial [for the conservatee]
The court found that by simply appointing counsel and hoping that they inform the conservatee of the nature of the upcoming proceedings is not enough. The court needs to have formal notice that the conservatee of made aware of his rights and that recording have notice be taken and a formal record be made.. Without such a record, the court has no way of truly knowing if the conservatee was informed. In addition, the public conservator tried to defend their position begging the question of whether notice of jury trial was really necessary. If the conservatee had enough insight to know that he was legally entitled to notice then did he really need a formal notation on the record. The court overruled the public conservator's argument and ordered that the conservatorship order be reversed. The court again reminded everyone that no matter the level of insight all parties are entitled to the same rights to be served with proper notice.
Implicit in the statutory requirement for written notice of the right to jury trial is the conclusion that the mandatory appointment of counsel is insufficient to insure that the fundamental right to jury trial will be brought home to the LPS conservatee.
It would be an analytical "Catch-22" to presume Benvenuto knew he had the very right of which he complains he was not informed. "'Absent an understanding by the patient of the nature of his detention and of his rights, it is difficult to perceive how he could knowingly decide whether or not to exercise them.
Despite all of this the appellate court reversed the order appointing the pubic conservator conservator over the person of Benvenuto.
Procedural Posture
Appellant individual sought reversal of the order entered by the Superior Court of Placer County (California) which reappointed respondent guardian as conservator of appellant's person and estate, contending that the trial court erred in finding him still gravely disabled and in failing to inform him of his right to jury trial on the issue of whether he was gravely disabled.
Overview
Respondent guardian was appointed conservator of the person and estate of appellant individual, under the Lanterman-Petris-Short Act,Cal. Welf. & Inst. Code § 5350 et seq., based upon a finding that he was gravely disabled as a result of a mental disorder. Appellant was placed in a mental health facility for treatment. After a year, respondent petitioned for reappointment. At the hearing, appellant's doctor testified that, because of medication, appellant presently had the ability to provide for his food, shelter, and clothing needs, but if he did not continue with the medication, he would be likely to regress and become gravely disabled in a fairly short period of time. Appellant testified that he did not intend to continue with the medication. The trial court found him still gravely disabled and reappointed respondent. On appeal, the court held the evidence demonstrated that appellant was not presently gravely disabled. The reappointment could not be based upon a perceived likelihood of future relapse. Further, appellant was not given the written notice of the right to a jury trial, required by § 5362, and not a harmless error. Both errors required that the order be overturned.
Outcome
The court reversed the trial court's order which reappointed respondent guardian as conservator of appellant individual's person and estate because the reappointment could not be based on the likelihood of future relapse and the evidence demonstrated that he was not presently gravely disabled. Further, appellant was not given written notice of his right to a jury trial.