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Constitutional law and LPS conservatorship
Conservatorship of Delay (1988) 199 Cal. App. 3d 1031

In re Conservatorship of Delay

The conservatee objected to the establishment of an LPS conservatorship over his person citing that the trial court violated his due process by not mandating that the referring physicians be specialized in psychiatry nor evaluating him in person
. The conservatee contended that the lack of qualifications of the two physicians violated his constitutional rights in accordance with U.S. Const. amend. XIV. Upon appeal the appellate court found that the trial court did not err in its decision in appointing public conservator as conservator over the person of Delay and cited that the matter of the doctor's expertise was not an infringement upon constitutional rights and that it was up to the trier of the fact's discretion. The ruling was upheld. 

​Discussion
This case is an example of how LPS conservatorship can be unclear in its procedural process. The LPS act entails that two physicians submit a declaration as to why they believe that the proposed conservatee is in need of an LPS conservatorship. In re. Welfare and Inst Code 
§ § 5352- 5352.1*. The conservatee does have a valid point in bringing up that the court should not seek to impose an LPS conservatorship based on a non psychiatric standpoint, however, the court found that there was no constitutional right for the conservatee to have specialized mental health physicians.

However, when you look at it logically, there is a deal of common sense in having the professionals evaluating the conservatee be mental health professionals. With a professional psychiatrist, the evaluator will know what is abnormal and what is normal. The evaluator knows best practices for long term mental health treatment. They will better understand the definition of gravely disabled and how it manifests than say a GP. Most GPs will tell a patient to see a specialist if they come to the doctor seeking treatment for mental health reasons. Some patients could reason if a non psychiatric doctor can make a referral than any doctor could and this would be "medical malpractice". 

The county contended that the issue of the reestablishment hearing is the matter of whether the conservatee is gravely disabled not the merits of the evaluating doctors. Even though the county follows this legal reasoning, I dissent because in my opinion the qualifications of the evaluating doctors does play a role in how they interpret grave disability standard. 

Some counties will argue that there is not enough time or money to ensure that every referral report is performed by a mental health professional. For now the ruling stands, but there may be a future case that deals with the credentials of the recommending doctor. 


*Note that in some counties it may be two doctors to fill out the recommendation. 


Conservatorship of Delay (1988) 199 Cal. App. 3d 1031


Appellant conservatee challenged the facial constitutionality of the Lanterman-Petris-Short Act, Cal. Welf. & Inst. Code §§ 5361, 5365.1(1979), and sought review of the judgment of the Superior Court of San Diego County (California), that granted respondent county's petition to reestablish the conservatorship of appellant and reappoint the conservator pursuant to § 5361.


After the automatic one-year expiration of the conservatorship of appellant conservatee for being gravely disabled as the result of a mental disorder under the Lanterman-Petris-Short Act, Cal. Welf. & Inst. Code § 5361 (1979), the trial court granted respondent county's petition to reestablish the conservatorship of appellant and reappoint the conservator. Appellant sought review and argued that Cal. Welf. & Inst. Code §§ 5361 and 5365.1 (1979) violated U.S. Const. amend. XIV. The appellate court found that the general reference to physicians in § 5361 did not rise to the level of a constitutional deficiency in the context of the requirements to present the petition for the reappointment. Further, there was nothing in § 5365.1 that compelled appellant to waive the presence of the physicians at the reappointment hearing. The appellate court affirmed the trial court's judgment because the statute on its face did not violate appellant's due process rights and issues as to the qualifications of the physicians and whether they personally examined appellant were matters for the trier of fact when evaluating whether the requisite showing of grave disability had been made.


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  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
  • LPS CONSERVATORSHIP OVERVIEW
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
      • Suspension of Drivers License
  • YOUR DAY IN COURT
    • Deposition Sample
    • Conservatorship Legal Documents
    • Conservatorship proceedings >
      • Grave Disability
      • Venue
      • Conservator's Bond
      • When the Conservatee Goes AWOL
      • Involuntary Commitment
      • Conservatorship Factors
      • Riese Hearing >
        • Riese Hearing
      • Supplemental Security Income/ SSI >
        • Applying for SSI
        • Documents for SSI
        • Process and Appeal
        • Award Letter
        • Rep Payee
        • SSI Amounts 2018/2019
  • Public Conservator
    • CONSERVATORSHIP INVESTIGATION REPORT
    • CAREER >
      • Continuing Education
      • Public Conservator County Numbers '16
    • LPS Conservatorship for Dependent Parents and Minors
  • LPS Conservatorship Case Law
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • In re Ben C- Wende Brief no issue writ
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Present Grave Disability
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • New Updates
  • Harm Reduction
    • Needle Exchange Programs
    • Safe Consumption Sites
    • Safer Injection Drug Use
    • Narcan
    • Syringe Services Programs in SoCal
  • CWS/CMS