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  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LIFETIME PROHIBITOR WELF & INST CODE § 8103 SUBD. (F)(1)(B) 18 U.S.C. § 922 (G) (4)
    • CA MHRS >
      • Armed and Prohibited Person System
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  • For LPS Conservatees
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    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
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    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
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Public Conservator's Exclusive Power to Initiate LPS Conservatorship
​Kaplan v. Superior Court (Adler) (1989)
No. C007688. Court of Appeals of California, Third Appellate District. December 27, 1989
 
This case lays down the foundation that private citizens cannot an initiate an LPS conservatorship. Only the public conservator may initiate an LPS conservatorship and third parties may not usurp that function. This case is special as the superior court of Yolo county is the real party in interest, but the court refers to the public conservator throughout most of the brief as it is the party most affected.
 
 
The appellate court during this proceeding assess whether a private person such as a relative or family member may initiate LPS conservatorship proceedings. The appellate court determined that privately initiating an LPS conservatorship would violate the LPS act. The act intends to preserve the civil liberties of the conservatee and by allowing any citizen to initiate a petition would place the conservatee’s rights at risk of unnecessary deprivation. The appellate court ordered a writ of prohibition ordering that the instant court only dismiss the petition.
 
Since this case deals with the legislature intent of the conservatorship, the appellate court does not review the facts leading to the petition of conservatorship. The court seeks to address the matter of safeguarding the conservatee’s civil liberties. The proposed conservatee was facing involuntary hospitalization facing a pending temporary conservatorship. The conservatorship investigator found that there were other “alternative” measures that were least restrictive than an LPS conservatorship. The conservatorship investigator refused to file with the court and initiate an LPS temporary conservatorship. After the public conservator refused to file, the petitioner, the proposed conservatee’s husband filed with the superior court petition to establish a “Petition for Appointment of Conservator of the Person" under LPS”. The petition alleged that the proposed conservatee was gravely disabled and special disabilities be applied pursuant to Welfare and Inst Code § 5357 (d). The petition contends that the public conservator had failed to conduct a complete investigation and abused its discretion. The petitioner asked that the superior court order an investigation and create a report recommending conservatorship. In re Welf and Inst §§ 5354, 5354.5 and 5356.
 
In response to public conservator filed an objection to the order to file of petition. The pubic conservator contends that the public conservator is the only person authorized by LPS to initiate an LPS conservatorship. The public conservator sought an order to dismiss the petition. The superior court responded that it was had the power to hear a petition by forth by a third party other than the public conservator. The superior court cites Probate Code §1454:
 
(a) The court shall appoint a court investigator when one is required for the purposes of a proceeding under this division.  The person appointed as the court investigator shall be an officer or special appointee of the court with no personal or other beneficial interest in the proceeding.
 
(b) The person appointed as the court investigator shall have the following qualifications:
 
(1) The training or experience, or both, necessary (i) to make the investigations required under this division, (ii) to communicate with, assess, and deal with persons who are or may be the subject of proceedings under this division, and (iii) to perform the other duties required of a court investigator.
 
(2) A demonstrated sufficient knowledge of law so as to be able to inform conservatees and proposed conservatees of the nature and effect of a conservatorship proceeding and of their rights, to answer their questions, and to inform conservators concerning their powers and duties.
 
The court set a merits hearing. Pending that hearing, the appellate court stayed the hearing for extraordinary relief. The appellate court reviews the case and provides the following reasoning for its judgement.
 
The appellate court cites the spirit of the LPS act when providing it’s reasoning. The act allows for the establishment of an LPS conservatorship for persons who are gravely disabled pursuant to Welf and Inst Code § 5008 (h). In re. Conservatorship of Early (1983) 35 Cal. 3d 244, 247-248 [197 Cal. Rptr. 539, 673 P.2d 209], set forth the procedural prerequisites for appointment of an LPS conservator. The legislature stipulates that the court designate a local conservatorship investigation agency that handles LPS matters see Welf and Inst Code § 5351. Welf and Inst Code §5352 mandates that the
 
"professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment" may recommend to the conservatorship investigation officer that a conservatorship be sought. If the officer concurs with that recommendation, section 5352 requires that "... he shall petition the superior court in the county of residence of the patient to establish conservatorship."

Before the hearing the officer in charge of conservatorship investigation must draft a comprehensive report detailing recommendations for or against conservatorship and the powers to be granted for the LPS conservator. The report will also recommend a proper conservator should conservatorship be established over the person. The LPS act is silent on the matter of when the official recommending conservatorship receives a recommendation for conservatorship from an interested but the officer does not find that conservatorship is not appropriate. Petitioner claims that in lieu of this code, the probate code does permit for an interested party to petition for LPS conservatorship. The petitioner refers to Welf and Inst Code 5350 which stipulates:
 
"The procedure for establishing, administering and terminating conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with §1400) of the Probate Code except as follows: ..."
 
Petitioner asserts that Probate Code §1820 (a)(2) allows the proposed conservatee's spouse as one of the persons who may petition for the creation of a probate conservatorship. Because of this code, he incorrectly assumes that this carries over for LPS. The appellate court corrects stating that although this may appear to be attractive argument there are two fundamental issues with this line of reasoning. First, the petitioner incorrectly cites this section of the code. Welfare and Inst Code mandates that LPS conservatorship follows probate code unless superseded by Welf and Inst Code. In the case of LPS conservatorship the code mandates that an agency set forth by the county may be the only one to petition for temporary LPS conservatorship. Secondly, the petitioner draws from the code with the assumption that this is just a formality that can be overruled. This formality or “procedure” is codified to safeguard the proposed conservatee’s rights so that unnecessary deprivation does not occur.
 
To allow anyone who may initiate a Probate Code conservatorship to assume the role of "prosecutor" in an LPS proceeding would run counter to these protections.
 
The court addresses another issue; the issue of interpreting the law piecemeal rather than as a whole. The petitioner in this case draws from a specific statue from probate code without examining the rest of the law. Although not cited in this case the following is an example of the the appellate court seeks to enforce:
 
Statutes should also be read in context of the statutory framework in which they appear. (Smith v. Workers’ Comp Appeals Bd. (2002) 96 Cal.App.4th 117, 123
 
The appellate court’s citation:
'"The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] Moreover, 'every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.”
The court finds that it is obligated to examine each assertion and whether it appears in the legislature. If it does not the court will turn to present law and case law and apply it within the already outline provisions. In regards to the specificity of the LPS act v the rest of the probate code, the court calls attention to:
"It is ... settled law that when a special and a general statute are in conflict, the former controls. (Code Civ. Proc., § 1859.)
 
The court also notes the petitioner’s proposed reasoning behind seeking an LPS conservatorship. The petitioner seeks LPS to place his wife in a mental health facility. The petitioner cites probate code § 2356 (a) which strictly prohibits: involuntary commitment in a locked facility.
 
(a) A ward or conservatee shall not be placed in a mental health treatment facility under this division against his or her will.  Involuntary civil placement of a ward or conservatee in a mental health treatment facility may be obtained only pursuant to Chapter 2 (commencing with Section 5150 ) or Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code .  Nothing in this subdivision precludes the placing of a ward in a state hospital under Section 6000 of the Welfare and Institutions Code upon application of the guardian as provided in that section.
 
The provision leads the petitioner back to LPS when it comes to the matter of involuntary treatment and confinement which also mandates that only the public conservator may initiate an LPS conservator. It appears that this is a case of the petitioner cannot be a beggar and a chooser meaning that they cannot pick and choose which aspects of a law they wish to follow. The court notes that the petitioner cannot decide that the probate code helps with one aspect of the case while ignoring another part of the code that hinders their case.
 
However, Probate Code section 2356, subdivision (a), provides that no conservatee shall be placed in such a facility except pursuant to LPS. Thus, the Probate Code itself, which petitioner relies on to justify his assertion that he may prosecute an LPS proceeding, refers him back to LPS in order to exercise the exact authority he seeks.
The appellate court moves to the next point. The court asserts that in re Welf and Inst Code §5114 any allegations that a proposed conservatee is a danger to others, or to himself, or gravely disabled as a result of mental disorder ... , must be presented by the district attorney for the county or county counsel.” Since those two people may present such evidence of grave disability and petitioner is neither, he cannot manage the court proceeding.
 
 
Because of these reasons listed above, the court of appeals finds that an order of prohibition is appropriate. The court notes that the public conservator although not a direct party to this case is not precluded from filing a writ for extraordinary relief. The public conservator would have been aggrieved by the petitioner’s actions should the order have followed.
 
The appellate court granted the request for peremptory writ of prohibition prohibiting the instant court from granting the order for investigation. The stay was vacated.
 
 
 
 
 
 
 
 
 
 
Procedural Posture
A public guardian applied for a writ of prohibition to restrain respondent, the Superior Court of Yolo County (California) from proceeding on petitioner husband's petition under the Lanterman-Petris-Short Act (LPS), Cal. Welf. and Inst. Code § 5000 et seq., to appoint a conservator for his wife. The public guardian alleged that under Cal. Welf. and Inst. Code § 5352, only the public guardian could petition for a conservator under the LPS.
 
Overview
After a public guardian declined to appoint a conservator for the wife of petitioner, a husband, under the Lanterman-Petris-Short Act, (LPS), Cal. Welf. and Inst. Code § 5000 et seq., petitioner filed a petition under the LPS to have himself appointed as his wife's conservator. Respondent, the trial court, set the matter for hearing, and the public guardian applied for a writ of prohibition. The trial court held that under Cal. Prob. Code § 2356(a), petitioner could not place his wife in a mental institution as he intended except pursuant to the LPS. Because Cal. Welf. and Inst. Code § 5114 permitted only the district attorney, who could not represent petitioner, to establish an LPS conservatorship, and because Cal. Welf. and Inst. Code § 5352 specifically gave the public guardian as the designated agency the right to petition for a conservatorship, only the public guardian could file a petition to establish an LPS conservatorship. Therefore, the court granted the writ and ordered respondent to dismiss the petition.
 
Outcome
The court granted a public guardian's application for a writ of prohibition restraining respondent, the trial court, from proceeding on petitioner husband's petition under the Lanterman-Petris-Short Act (LPS) to appoint a conservator for his wife and directed respondent to dismiss the petition. The court held that the LPS specifically gave only the public guardian as a designated agency the right to file a petition for an LPS conservatorship. 

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  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • LPS Conservatorship Court Overview >
      • Public Conservator >
        • Los Angeles Public Guardian
        • CONSERVATORSHIP INVESTIGATION REPORT
        • CAREER >
          • Continuing Education
          • Public Conservator County Numbers '16
          • San Diego Public Conservator '19
        • LPS Conservatorship for Dependent Parents and Minors
      • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
      • Court of Appeals >
        • In re Ben C- Wende Brief no issue writ
      • Trial Court Transcript
      • Conservatorship Legal Documents
      • INITIAL INVOLUNTARY PROCEEDINGS >
        • Grave Disability >
          • Present Grave Disability
        • Venue
        • Conservator's Bond
        • When the Conservatee Goes AWOL
        • Involuntary Commitment
        • Conservatorship Factors
        • Riese Hearing >
          • Riese Hearing
        • Supplemental Security Income/ SSI >
          • Applying for SSI
          • Documents for SSI
          • Process and Appeal
          • Award Letter
          • Rep Payee
          • SSI Amounts 2018/2019
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LIFETIME PROHIBITOR WELF & INST CODE § 8103 SUBD. (F)(1)(B) 18 U.S.C. § 922 (G) (4)
    • CA MHRS >
      • Armed and Prohibited Person System
    • National Instant Criminal Background Check System (NICS)
    • Registration
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose