Durable Power of Attorney vs LPS Conservatorship?
A power of attorney in general is a legal document that many people sign in order to safeguard their financial and medical future in the case that they find themselves incapacitated due to physical ailment. The principle in an power of attorney can also dismiss agent whenever he or she wishes. The agent in a power of attorney can act on behalf of the person if they find themselves incapacitated but if the person is considered capable, they bear the right to make their own decisions. Some instances where the power of attorney may be used is in the case of dementia, Alzheimers, coma, or stoke. However, a power of attorney must be signed when the person is coherent and not impaired. If the person becomes incapacitated after the fact the court may step and in manage the person's business. A power of attorney cannot be signed when someone is declared legally incompetent.
A lot of legal articles discuss whether a patient should consider an conservatorship or a durable power of attorney? In many cases a durable power of attorney over the person and estate is the best option for those who suffer from dementia and other elderly diseases. However, with disorders such as schizophrenia and bipolar disorder, the patient may find it difficult to sign a power of attorney given that they are impaired by delusions and psychosis. If the patient refuses to sign one because they believe that someone is trying to control them, then no further actions can be taken against them. The patient can sign themselves out voluntarily or decide that they want to quit taking their medication and no one bears the power over them to force them to stop.
With an LPS conservatorship, the patient can be forced to take medication and accept treatment against their will. Even if they object or wish to fire their conservator they cannot simply accomplish this. Rather it takes lengthy court processes for the conservatee to petition for a new conservator. The conservatee also can be placed in a locked facility against their wishes whereas a power of attorney never authorizes closed locked treatment. The durable power attorney rarely permits involuntary psychotropic treatment.
My final words? I believe that a power of attorney for financial and an LPS conservatorship of the person may be the best solution for persons who suffer from mental illness.
What happens if a LPS conservatee calls a suicide hotline? If they are detained under a 5150 hold despite being under an LPS conservatorship? Is the conservator notified? Does the conservator play a role in the hold? What if the conservator objects to the conservatee being placed under a 5150?
These issues were issues that were addressed several years back. There are some answers for these questions but lots more left unanswered.:
LPS Conservatee in the ED
• Make reasonable attempts to determine if a conservatorship is in place
• Utilize 5150 until LPS Conservatorship is confirmed
• If possible, consult with conservator and/or case manager
• Standard emergency procedures apply to psychiatric disturbances, and the patient must be stabilized prior to transfer
• Surgery (and presumably similar procedures) are authorized when conservatee faces loss of life or serious bodily injury (apparently without consent of the conservator or conservatee)
• It is always best to obtain consent, if at all possible
Must Law Enforcement Transport LPS Conservatees?
• Conservators can request law enforcement to detain AWOL conservatees and return them to the facility where they have been placed
• Conservators can request law enforcement to detain conservatees and transport them to “the county designated treatment facility”
• This often causes law enforcement to feel that they are a taxi service
• Compare to 5150 where the individual must appear to the officer to be danger to self, danger to others or gravely disabled in order to transport. Requests for transport of LPS conservatees must be made in writing and must be accompanied by certified copies of the letters of conservatorship.
Although these answers the questions of what general procedures occur when the conservatee is in need a of a 72 hour hold there are several unanswered questions. The first question is even if the conservatee is detained who makes the decisions? The conservator may be unavailable for several reasons. Especially if it is the PC and it might be the weekend when people are not working., who would authorize treatment. Although the patient is not facing risk of bodily injury or death, they may need medication adjustment due to psychiatric outbursts or their current regimen may not be providing therapeutic effect. In these cases who authorizes non bodily injury or death related medical decision making? Also what happens if the conservator cannot be reached after the 72 hour hold? Does the treating facility put the person on a 14 day hold? Do they discharge them again? If the conservatee needs to be transported after their 72 hour hold to a different facility and the conservator is not available who provides the copy of certified letters and orders? Finally what if the conservatee does not have evidence that he or she is under an LPS? What if they are detained in a different county and the county does not have access to a database that complies a list of LPS conservatees? What happens then? Is the hospital liable for discharging them on their own without prior knowledge of an LPS conservatorship? Although this a rare case, it is important that practitioners know of this issue since many people come in for 5150 evaluations but no everyone knows their background and legal status.
A good question for the court is does the conservator hold any responsibility for a conservatee's violent actions?
Let say for sake the conservatee makes a threat against another person and a Tarasaoff warning is issued. The appropriate people are given notice of the intent and dagner that the conservatee poses. After that the conservatee finds a way to carry out his threat. If so who is responsible.? Given that proper notice and protective actions are taken the therapist or which ever professional is told, they are considered to have properly fulfilled their duty. However, what about the conservator? If the LPS conservator has been demonstrated to enact reasonable efforts to prevent the conservatee from behaving in a dangerous manner are they still liable? Usually the court would rule that the conservator is not liable but it does vary county to county. Love to hear input about this.
In order to be considered to serve as a personal conservator for someone be it a family member or close friend, all persons must be screened by the public conservator. This applies for San Diego mostly but other counties would have similar procedures for applying to serve as private conservator..
For San Diego you need to begin by sending in a request to the public conservator. This must occur after the temporary conservatorship has been opened. You would write a letter to the public conservator marked as Attn: Beth Olin. Within the letter you would discuss serving as conservator for your loved one. The public conservator during their 30 day investigation will perform background checks on you to determine if you are eligible to serve as conservator. They will see if you have the conservatee's best interests in mind. They want to ensure that you aid the conservatee in being compliant and provide them the best care possible. This is the case for conservators who may want to divest the conservator of their rights or conservators who are close friends and will discharge the conservatee even if it is against their best interest. The public conservator will make reasonable efforts to assess the conservatee's opinion about you serving as conservator. The public conservator will also notify all relatives of your intent to serve as conservator. This is to ensure that no one in the family has objections to your office as conservator. The list of relatives is listed in the petition unlike a separate form with limited conservatorships. In some cases the public conservator may hold a meeting with the proposed conservator so that they can sign the agreement to serve as LPS conservator and that they understand the role of conservator.
The judge likes to see that notice has been properly served or they may continue the hearing. This is very common in probate conservatorship matters. Once all relatives are served, the matter will be taken to the judge for review. Usually the judge will appoint family as conservator. You will be issued certified letters of conservatorship and orders of conservatorship. Once you have those letters you do not have to do much more except renew your conservatorship every year if needed.
In the case of probate cases, when a petitioner asks for a temporary conservatorship, the judge will ensure that the conservatorship is warranted. Many times I have heard a judge remind the petitioners that the conservators that a temporary conservatorship is for those who are imminent danger of hurting themselves or being taken advantage of. The judge will then ask the proposed conservators why they believe that the conservatee need the extra protection of a conservator right away. The conservators must produce documents and evidence of the above. Pictures, bank statements, and witness testimony may be considered when deciding if the conservatee needs a t-con.
Conservatorship Proposals Raise Concern
Interest in conservatorship issues is high in the Legislature this year, as policymakers and counties seek solutions for those living without shelter. CSAC is working to gain clarification on each of the current conservatorship proposals with an eye on the potential fiscal impacts.
Conservatorship activities are funded solely through County General Fund and handled by each county’s Public Guardian (PG) or Public Conservator (PC). The location and organization of each PG/PA office varies across the state, but it is one of the few service-related county functions that is funded solely through County General Fund.
The proposals in the Legislature take a variety of approaches, but most seek to make it easier to conserve people under the state’s Lanterman-Petris-Short Act (LPS Act). A person can be conserved for a year if a PG/PC recommends and a court agrees that they are gravely disabled due to mental illness. The county conservator is responsible for the conservatee’s care and protection, housing, and health care, including involuntary mental health treatment.
Besides the county cost for conservatorship activities, a dearth of placement options for conservatees remains a top issue and is closely tied with the overall lack of housing for at-risk populations in the state. This supply issue is not addressed by any of the current conservatorship proposals. CSAC is working on a comprehensive housing proposal in response to the homelessness crisis, but creating secure and affordable placement options for conservatees will be a longer-term effort.
CSAC is committed to working with counties and legislators on each of the conservatorship measures outlined below:
AB 1971 (Santiago) is currently a spot bill sponsored by Los Angeles County. The County plans to amend it to expand the current statutory definition of gravely disabled to include a physical health condition. This would allow a county to conserve a person who refuses to seek medical care despite being at risk of harm or death. CSAC Position: Pending
AB 2156 (Chen) is similar to AB 1971 above and would make changes to the definition of gravely disabled to include a physical health condition. The main issue with this bill is that probate conservatorship address physical conditions. By including physical issues such as diabetes and high blood pressure in criterion for LPS conservatorship, this places some individuals as further risk of losing their civil liberties for non mental health issues. It is understood that a mental illness preventing them from making sound medical decisions is the real reason for this law, but it still stands that the criteria should focus on whether the conservatee is GD.
AB 2236 (Maienschein) would clarify that a conservatorship continues until terminated by the death of the conservatee. My question? Is this for probate or LPS? It is already answered in probate code and LPS is only for a year and should remain that way since more rights are lost.
SB 931 (Hertzberg) is sponsored by the Los Angeles District Attorney’s Office. It seeks to clarify that a county conservatorship investigator may begin investigations while a person is in custody in a county jail, which simply affirms what is current law. So why beg the question in the first place? Isn't this what a Murphy conservatorship is?
SB 1045 (Weiner) is sponsored by the City and County of San Francisco. It was amended this week to broaden the scope of who can be conserved, including those with substance use disorders. This is a difficult issue because with substance abuse, the person is making the decision to use. Although drug abuse stems from addiction which in itself can be inherited, the person is intact with reality and can provide for themselves when sober. This also begs the problem of funding. LPS law currently allows alcoholism to be criteria for LPS however, many doctors do not initiate LPS proceedings for alcoholism alone. Adding substance abuse would simply complicate the process and strip the county for funding even more.
SB 1095 (Anderson) would delete a restriction on the court’s ability to order certain revocation matters to the public guardian. This could increase the workload of county PGs and PCs. This addresses the issue with Karriker and Kennebrew which both address whether the public conservator abused its power in regards to initiating an LPS conservatorship.
There are some new laws in the works that I would like to discuss and how they pertain to LPS conservatorship.
AB-2156 Mental health services: gravely disabled
This bill would address the issue surrounding the issue of grave disability. Currently the legal definition for grave disability addresses whether the conservatee can manage their own food, clothing, and or shelter. The law does not account for whether the conservatee can make sound decisions about their medical care. If the conservatee makes a decision to refuse medical care despite it being in their best interest, they cannot be deemed gravely disabled. This bill seeks to impose conservatorship on those who meet the criteria for grave disability based on refusal of medical care. Some providers find this new bill worrisome because the conservatee’s rights may be further limited by the mere fact that the conservatee has a history of refusing medical treatment in their best interest. However, those opposed to the bill must bear in mind that they law means to use conservatorship as a wholesome approach as in the mental health conservatorship clinician must remember other factors such as noncompliance, past hospitalizations, inability to care for the trifecta of needs, and ability to make sound judgements about medical care. Currently the law stipulates that medical decision making is not imperative for a conservatorship. The conservatee is judged on their ability to understand whether they need treatment, accept that they have a mental illness, and that they need medication to function. This bill naturally follows in that the latter are signs of whether the conservatee can actually understand the nature of their illness and make sound medical judgements based on their understanding. Therefore, I concur with the bill.
In regards to the conservatorship laws SB-1045
This bill addresses whether chronic homelessness is grounds for involuntary detention and subsequent conservatorship. The idea that homelessness alone can be a qualifier for conservatorship worries a great number of people as they find that homelessness should not be considered grave disability. They believe that many people become homeless due to poor circumstances. However, policy makers argue that the conservatorship investigator would consider all factors before initiating an LPS conservatorship.. In addition, individuals who have had frequent interactions with the police and mental health professionals but not had further action taken may be considered eligible for LPS conservatorship. This poses as problematic as the individual who has had police interaction frequent times may have had such interactions as a result of where they live. Take for example, one of the areas of San Diego with many homeless persons is east village. Here is houses the San Diego projects. There is a lot of crime such as drug dealings, illicit behaviour, and mentally ill. However, the regular people may find themselves wrapped up in the criminal activities that run rampant in these areas. Through they may not be mentally ill, they can be marked by the police. Homeless persons can also resort to drugs and alcohol to cope with the rigors and dangers that come with being homeless. These populations are not inherently ill but may be treated as such due to their coping mechanisms. Given that people may argue that they should know better or find healthier outlets but until one has suffered the degradation, shame, danger, and negative pit of being homeless they should not pass judgement. Again this is not to say that all homeless persons are not mentally ill or down on their luck but there are plenty of people who find themselves upon hard times and do not have access to the resources to pull themselves out of the pit of homelessness. Conservatorship would not bring them out of being homeless; rather, it may temporarily house them but once the year is up many find themselves on the streets again right where they started but with the addition of crippling medical bills.
Juvenile Dependency and