LPS jury trial review and issue spotting

There have been some circulating issues with folks not fully understanding jury trials and LPS conservatorships. Both LPS and probate conservatorships allow for jury trials. However, LPS differs from probate. As usual this will cover LPS.

A proposed conservatee can demand a court or jury trial on the issue of whether he or she is gravely disabled. Welf & I C §5350(d)(1).

Counsel may debate about the specifics of when jury trial requests are made due to each county having their own local rules and WIC § 5350 setting out "self contained" procedures for demanding an LPS jury trial that is technically inconsistent with the normal timelines and procedures under the standard Code of Civil Procedure/Probate Code but counsel on either side needs to remember that LPS conservatorship/ MH court is a closed universe. The only thing counsel needs to use when they are dealing with an LPS bench/jury trial is everything in the WIC. If in the Welf and I C it directs them to the probate code then they can go to the probate code.... if it directs them to the criminal/penal code then they can go to the penal code. Probate code and LPS Welf and I C have separate statutory schemes and distinct purposes and this translates to jury trials. The LPS court which is intimately involved in the protection of the public and the treatment of the conservatee is best situated to make involuntary treatment determinations based on the best interest of the public and the treatment needs of the patient without any preferences or presumptions. 

Now given the rules about when to apply the WIC code vs the probate code, first the proposed LPS conservatee must be given notice of the right to a court or jury trial on the issue of whether they are gravely disabled. Welf & I C §5350(d). Failure to notice on time does not meet the harmless error exception and the decision appointing LPS conservator may be reversed. 

Conservatees generally need to give their express permission to waive their presence and right to a jury trial. Waiver of jury trial has several exceptions covered in a different section.

Conservatees retain the right to a jury trial during their T-con period. If the proposed conservatee demands a court or jury trial on the issue of grave disability, the court may extend the permanent  conservatorship hearing deadline but no more than 6 months. Welf & I C §5352.1 

If this demand for jury trial is made before the initial P-con hearing on the initial conservatorship petition, the normal P-con hearing is considered waived. Welf & I C §5350(d)(1).  The jury trial "shall" begin within 10 days of the date of the demand has been made, but certain courts may continue the hearing for up to 15 days in re Welf & I C §5350(d).


This shall indicates that this statute is directory, and not mandatory meaning terminating sanctions may not be applied should the court hold the jury trial late. 

The jury verdict must be unanimous. Welf & I C §5303. Although Welf and I C is silent on the issue of whether the burden of proof remains proof beyond a reasonable doubt, most counties and courts apply the Roulet findings to jury trials. 



Regarding the confidentiality of jury trials, in Sorenson v Superior Court (2013) 219 CA4th 409, the court interpreted Welf and I C §5118 to mean that "all LPS proceedings, including court trials, jury trials and other hearings under the Act, are presumptively nonpublic". This does contradict with the very nature that jury trials have "strangers" observing the hearing. However, this is very rarely considered on the day of the jury trial.


The next section shall cover the admissibility of statements made in front of a jury in light of the Sanchez ruling.

Jury instructions: CACI 4000..