Disability Rights LPS Conservatorship Appeal and Challenge Seminar: Additional Information

Disability Rights LPS Conservatorship Appeal and Challenge Seminar

I have inserted some extra information to consider before attending this seminar hosted by DRC on the 12th of April.

About the webinar:
Join us as we discuss the re-hearing process, options to appeal the judge’s decision and understanding how Third-Party Assistance can help show a person is not gravely disabled.
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We will explore the following:

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• The LPS Conservatorship Process
  • What is Third Party Assistance?
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Þ   From the outset, Welf & I C §5350(e)(1), establishes that a person is not gravely disabled if he or she can survive safely with the assistance of a third party.
Þ   The court must consider willingness and ability of family members, friends, or other third parties when assessing whether a proposed conservatee can provide for his or her needs.
Þ   Welf & I C §5350(e)(2) dictates that family, friends, and others must specifically indicate in writing their willingness and ability to help. If they do not do this the court must not consider their willingness and ability to provide help.
Þ   It is presumed that if a family member testifies about their willingness to help then their written testimony is not needed.
Þ   Welf & I C §5350(e)(3): states that families do not need to testify or write out that they are unwilling to provide assistance. This is so that families do not have to face the “pain of testifying in front of loved ones”.
Þ   However, we have several cases that better define third party assistance and the meaning of the term “survive safely”
Þ   The legal authority on this matter is found in Conservatorship of Early (1983) 35 C3d 244; Conservatorship of Neal (1987) 190 CA3d 685; Conservatorship of Johnson (1991) 235 CA3d 693; Conservatorship of Wilson (1982) 137 Cal. App. 3d 132
Þ   Conservatorship of Early: the appellate court issued its opinion stating that a jury is entitled to consider the availability of third party assistance to meet a proposed conservatee's basic needs for food, clothing and shelter.
Þ   Conservatorship of Neal: The appellate court found that a conservatee cannot be found gravely disabled with the assistance of his wife. They opined that no one in society truly survives completely without assistance. Even if there is risk that the relative will not be able to control a relapse in the future if they are currently being able to assist their loved one, conservatorship cannot be established because of a perceived likelihood of future relapse.
Þ   Conservatorship of Johnson: If a conservatee’s mental condition was so severe it is “beyond an ordinary person's ability to deal with, ... [requiring] expert assistance. ...”, then the court may find that the person is gravely disabled despite written or oral testimony regarding third party assistance.
Þ   Conservatorship of Wilson: In this case, the Fourth District held it was error to instruct the jury the person is gravely disabled if he or she is unable, "'unassisted,'" to provide for his or her basic personal needs. The court cites Davis and added that in modern society no one lives completely independently of everyone and everything. It was therefore too much to ask a proposed conservatee to do so.
Þ   Conservatorship of Jones (1989) 208 CA3d 292: The California Department of Corrections and Rehabilitation does not qualify as a third party provider of assistance.
Þ   Conservatorship of Law (1988) 202 CA3d 1336: A board and care home does not qualify as third party assistance when the establishment of the conservatorship predates their move into the board and care.

·       Things that can be done to appeal the conservatorship hearing decision

• What is a Rehearing Petition?

Þ   Welf & I C §5364 All LPS conservatee are entitled to a rehearing on the issue of whether they are gravely disabled and in need of LPS conservatorship.
Þ   The petition for rehearing to be filed at any time, but after the filing of the first petition, another one cannot be filed for another 6 months. Conservatorship of Amanda B. (2009) 173 CA4th 1380.
Þ   BURDEN OF PROOF: For the rehearing, the conservatee bears the burden of proving by a preponderance of the evidence that they are no longer gravely disabled.
Þ   There is no right to a jury trial. Baber v Superior Court (Hill) (1980) 113 CA3d 955, 965.
Þ   Additionally, any time, a conservatee may petition the court for a hearing to contest the rights denied under Welf & I C §5357 or the powers granted to the conservator under Welf & I C §5358. Welf & I C §5358.3.
Þ   Welf & I C §5358.3; Welf & I C §5358.3: However, after the filing of the first petition challenging the rights denied. No further petition for rehearing may be submitted for 6 months. 
 
o   What is a Writ of Habeas Corpus?

Þ   Per Welf & I C §7250; . Pen C §1473: a conservatee may challenge their placement or conditions of confinement via a writ of habeas corpus
Þ   Patients need to understand that writ of habeas corpus post LPS Conservatorship establishment are very hard to “get”. Since the courts view writs as extraordinary relief, conservatees are generally foreclosed from pursuing writs.
Þ   The courts consider that the LPS act has many built in safeguards for LPS conservatees to challenge conservator’s powers and their conditions confinement so writs are not routinely granted post LPS Conservatorship establishment. In re Gandolfo (1984) 36 C3d 889; In re Azzarella, 207 Cal. App. 3d 1240, 254 Cal. Rptr. 922 (Ct. App. 1989)
Þ   The Pen C §1473 writ is available, but to sustain such a writ, the party would have to allege that "unreasonable consequences [would] ensue because of the limitations of the [LPS] statutory review mechanisms”.
Þ   As your counsel how to best build a case for unreasonable consequences.
 
o   Appealing LPS Conservatorship
 
Þ   In general, the rules governing criminal appeals apply to an LPS conservatorship. Cal Rules of Ct 8.304–8.368, 8.480, 8.508.
Þ   The trial court will not stay the conservatorship proceedings during the lifetime of an appeal.
Þ   This is most likely because of the lengthy time periods to process an appeal as the conservatorship would be “stayed” for a year as the appellate court receives trial court records, etc.
Þ    In rare cases the appellate court may order that the trial court stay the proceedings. Welf & I C §5352.4.
Þ   Trial counsel has the obligation to file a timely notice of appeal on behalf (NOA) when they deem that there are justiciable issues. Pen C §1240.1(b).
Þ   Trial counsel must also assist with appointing appellate counsel. Pen C §1240.1(b).
Þ   HOWEVER, de novo court review of the record, is not required in LPS conservatorship proceedings. (People v Wende (1979) 25 C3d 436) does not apply to LPS Conservatorship.
Þ   See in re Conservatorship of Ben C. (2007) 40 C4th 529
Þ   On review, the court of appeal must apply the substantial-evidence test to determine whether the record supports a finding that the conservatee is gravely disabled.
Þ   Know that often the actual issue of appointment of an LPS Conservatorship becomes moot once it terminates by operation of law appellate court may hear the case on the grounds that there are issues that “capable of repetition yet evading review”. They may also hear a case citing that the issue on appeal is not moot even when the appointment of LPS Conservator has terminated. Conservatorship of Forsythe (1987) 192 CA3d 1406; Conservatorship of Bones (1987) 189 CA3d 1010; Conservatorship of Moore (1986) 185 CA3d 718.
Þ   The courts will be highly deferential to the trial court so the conservatee will have a very hard time overcoming the standard of review; abuse of discretion.
Þ   Remember to ask your trial lawyer about preserving the record for appeal as unpreserved evidence, objections, etc are generally not considered at the appellate level.
 
How to develop an action plan to show you are not gravely disabled?
See link

Speakers:
Debi Davis MSW, is a person with lived experience and a long-time mental health advocate. Volunteered for 10 years with Riverside County Patient Rights Office. For the past 13 years, Ms. Davis has worked in the Peer and Self-Advocacy unit of Disability Rights California, facilitating self-advocacy groups at a state hospital and facilities in the community.
Maria Garcia’s journey with Disability Rights California started 14 years ago. First as Assistant Patients’ Rights Advocate with the California Office of Patients’ Rights. COPR advocates for the rights of patients receiving mental health treatment at state hospitals.
Maria has lived experience with mental health and while working for COPR she learned to self-advocate and advocate for others. In 2020, she joined DRC’s Peer Self-Advocacy program as Coordinator.
Her passion is learning and teaching to empower others.