RIGHT TO BE PRESENT AT HEARING/ COUNSEL WAIVING CONSERVATEE'S PRESENCE AT HEARING


Proposed conservatees and current conservatees do not have a constitutional right to be present at the hearing. This being said most conservatees do make it to their hearings and are given some chance to say on the record what they believe about their mental illness, need for a conservator, and plan of care if discharged. However, conservatees should know what the law provides in regard to their right to appear in front of a judge or jury trial.


The law provides that the proposed conservatee's presence is not required at a hearing to establish the conservatorship, provided that counsel for the proposed conservatee has waived their presence with express consent from the conservatee. However, an exception applies for LPS conservatees where the conservatee's permission may not always be needed.

Current case law also asserts that: "[T]he LPS Act makes no express mention of any specific requirement for the presence of a proposed conservatee at a hearing to establish a conservatorship of the person." In re Conservatorship of John L. (2010) 48 C4th 131, 143.


The exception for producing the conservatee is found in Probate Code § 1825. This code section mandates that
(a) The proposed conservatee shall be produced at the hearing except in the following cases: (c) Emotional or psychological instability is not good cause for the absence of the proposed conservatee from the hearing unless, by reason of such instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the proposed conservatee.


*It is also very important to know that this issue of being present at the hearing and having counsel waive presence is a statutory right not constitutional right. This means that raising the issue on appeal and citing due process is much much harder.   

In these certain circumstances the law does permit patient's counsel to bind their client to the decision to waive their presence even without the express permission of the conservatee. Very little case law debates this issue. The main issue with this is there lacks a clear standard of proof for demonstrating that a proposed conservatee or current conservatee is too emotionally unstable. 


More case law will be updated later to reflect this issue of waiving conservatee's presence without the conservatee's express consent.