WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS Guided by Different Laws?
The Probate Code presumptions and legal authority is generally inapplicable to LPS Conservatorship proceedings under the Welfare and Institutions Code.
Although both probate court and LPS Conservatorship courts have the authority to make orders concerning conservatorship and involuntary care of a conservatee, the two courts operate under separate statutory schemes and serve distinct purposes.
LPS Conservatorship is codified in Welf & I C as a means to cover services to individuals who are gravely disabled; that is, persons who are in need of treatment but are unwilling or incapable of accepting it voluntarily Welf & I C §5352, and to provide the treatment and care of those who are gravely disabled while providing protection to the public. Probate conservatorships codified within probate code § 1800.3: are for persons who are unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter. Additionally a probate conservatorship of the estate can be established for persons who are unable to resist fraud or undue influence.
Because of these separate and distinct purposes of the probate and LPS Conservatorship courts, most probate code provisions do not apply in LPS Conservatorship proceedings. It is vital that those understand that LPS Conservatorship proceedings are governed by the Welfare and Institutions Code, rather than the Probate Code.
Probate Codes are not applicable in LPS Conservatorship cases unless Welfare and Institutions Code directs to the probate code for further instruction. Welfare and Institutions Code will supersede the mandates of probate code when within the realm of LPS Conservatorship and involuntary treatment under Welf & I C § 5150 et seq.
When the mental health court makes LPS Conservatorship orders or makes involuntary treatment and commitment findings, it does so pursuant to its authority codified by Welfare and Institutions Code, considering the totality of the circumstances including doctor’s petition, patient course of illness, and court investigator’s findings.
Welfare and Institutions Code § 5350 et seq is part of the overall involuntary treatment scheme set forth in the Welfare and Institutions Code to govern involuntary treatment and care of mentally disordered persons. When operating under Welf & I C the court makes its considerations that impact involuntary treatment under the grave disability beyond a reasonable doubt standard.
In LPS Conservatorship proceedings the patient enters the court process because he or she has been detained under Welf & I C § 5150. Because involuntary care orders are not made until the patient has been declared legally incapable of providing for themselves or a danger to self/others, the presumption of mental health fitness that underlies probate code no longer is stipulated. Henceforth, LPS Conservatorship proceedings are far more restrictive than probate proceedings since the presumption is that the person is not gravely disabled due to a mental disorder under DSM V standards.
Probate court is almost never involved with LPS Conservatorship matters because the county designated mental health court, tasked with being intimately involved in the treatment of gravely disabled mentally unfit patients, is best situated to make involuntary care orders due to the need to understand the precise nature of understanding the case law and reasoning behind involuntary psychiatric care. Probate court manages the affairs of elderly and developmentally disabled adults and therefore lacks standing and knowledge of the specific LPS provisions in Welf & I C.
As of now there exists no case law that finds sound reasoning to depart from the conclusion that Probate Code provisions are inapplicable in LPS Conservatorship cases unless expressly stated in the statute.
Although both probate court and LPS Conservatorship courts have the authority to make orders concerning conservatorship and involuntary care of a conservatee, the two courts operate under separate statutory schemes and serve distinct purposes.
LPS Conservatorship is codified in Welf & I C as a means to cover services to individuals who are gravely disabled; that is, persons who are in need of treatment but are unwilling or incapable of accepting it voluntarily Welf & I C §5352, and to provide the treatment and care of those who are gravely disabled while providing protection to the public. Probate conservatorships codified within probate code § 1800.3: are for persons who are unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter. Additionally a probate conservatorship of the estate can be established for persons who are unable to resist fraud or undue influence.
Because of these separate and distinct purposes of the probate and LPS Conservatorship courts, most probate code provisions do not apply in LPS Conservatorship proceedings. It is vital that those understand that LPS Conservatorship proceedings are governed by the Welfare and Institutions Code, rather than the Probate Code.
Probate Codes are not applicable in LPS Conservatorship cases unless Welfare and Institutions Code directs to the probate code for further instruction. Welfare and Institutions Code will supersede the mandates of probate code when within the realm of LPS Conservatorship and involuntary treatment under Welf & I C § 5150 et seq.
When the mental health court makes LPS Conservatorship orders or makes involuntary treatment and commitment findings, it does so pursuant to its authority codified by Welfare and Institutions Code, considering the totality of the circumstances including doctor’s petition, patient course of illness, and court investigator’s findings.
Welfare and Institutions Code § 5350 et seq is part of the overall involuntary treatment scheme set forth in the Welfare and Institutions Code to govern involuntary treatment and care of mentally disordered persons. When operating under Welf & I C the court makes its considerations that impact involuntary treatment under the grave disability beyond a reasonable doubt standard.
In LPS Conservatorship proceedings the patient enters the court process because he or she has been detained under Welf & I C § 5150. Because involuntary care orders are not made until the patient has been declared legally incapable of providing for themselves or a danger to self/others, the presumption of mental health fitness that underlies probate code no longer is stipulated. Henceforth, LPS Conservatorship proceedings are far more restrictive than probate proceedings since the presumption is that the person is not gravely disabled due to a mental disorder under DSM V standards.
Probate court is almost never involved with LPS Conservatorship matters because the county designated mental health court, tasked with being intimately involved in the treatment of gravely disabled mentally unfit patients, is best situated to make involuntary care orders due to the need to understand the precise nature of understanding the case law and reasoning behind involuntary psychiatric care. Probate court manages the affairs of elderly and developmentally disabled adults and therefore lacks standing and knowledge of the specific LPS provisions in Welf & I C.
As of now there exists no case law that finds sound reasoning to depart from the conclusion that Probate Code provisions are inapplicable in LPS Conservatorship cases unless expressly stated in the statute.