LPS MENTAL HEALTH CONSERVATORSHIP
  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • ABOUT YOURS TRULY
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • 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.
    • Writ of Habeas Corpus burden of proof
    • 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
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • 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
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LPS Conservatorship Court Overview
    • Public Conservator >
      • Los Angeles Public Guardian
      • CONSERVATORSHIP INVESTIGATION REPORT
      • CAREER >
        • Continuing Education
        • Public Conservator County Numbers '16
        • San Diego Public Conservator '19
      • LPS Conservatorship for Dependent Parents and Minors
    • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
    • Court of Appeals >
      • In re Ben C- Wende Brief no issue writ
    • Trial Court Transcript
    • Conservatorship Legal Documents
    • INITIAL INVOLUNTARY PROCEEDINGS >
      • Grave Disability >
        • Present 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
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose
In re George H- Jury instructions and special disabilities
​
169 Cal. App. 4th 157 (Cal. Ct. App. 2008)

​Conservatee appealed a decision appointing public conservator conservator over his person and estate citing that failure to comply with jury instructions was reversible error that prejudiced the outcome. The appellate court found that the instant court did not err in giving out jury instructions as it does not have a sua sponte duty that is applied to criminal cases. Conservatee was recommended for a LPS conservatorship by his treating facility. The facility recommended conservatorship to the public conservator. The public conservator investigator found that after investigating all other alternatives LPS conservatorship was the least restrictive placement option. Temporary conservatorship was established and all notices for permanent LPS conservatorship were effectuated and counsel appointed for conservatee. The public conservator submitted its report opining that conservatee was gravely disabled, LPS conservatorship was the least restrictive placement, and conservatee's medical history. The report noted a lengthy significant psychiatric history and noncompliance with treatment. The report also opined that special disabilities be applied. Appellant requested a jury trial in re Welf and Inst Code § 5350, subd. (d)" [t]he person for whom conservatorship is sought shall have the right to demand a court or jury trial on the issue whether he or she is gravely disabled".

At trial expert witness was called and proffered his psychiatric opinion and observations about conservatee's behaviour. Appellant's mother also gave a history to the jury. The jury was given the following instructions:

"the term `gravely disabled' means a condition in which a person, as a result of mental disorder, is unable to provide at the present time for his basic personal needs for either food, clothing or shelter in the general context of his life. The ability to provide for these basic needs requires more than the physical or mechanical ability to do certain acts. It means that the person is able to function and sustain himself in the community with or without the assistance of other available resources. However, he need not necessarily be financially capable of self-support. He need only be aware of the social services and resources available to him, and be capable of applying any income he receives, regardless of its source, to provide for his basic personal needs.

"If you find that as a result of a mental disorder [appellant] does not at this time have ability to function in this manner, you must find he is gravely disabled."


The jury was also instructed that if it found that appellant was "capable of surviving in freedom by himself or with the help of willing and responsible family members or friends or with the assistance of available community resources you shall find that he is not gravely disabled."


Based on the instructions and the evidence presented at trial, the jury unanimously found that conservatee was gravely disabled. Appellant filed a timely appeal afterwards.

Conservatee made two contentions;

The first is that the trial court had a sua sponte duty to instruct the jury about the conservatee's ability to accept voluntary treatment and if able to do so, there was no need for a LPS conservatorship. Conservatee cites in re Cons of Walker (1987). In re cons of Walker, the trial court had erred in not delivering all of the jury instructions and this mistake was prejudicial. The Walker court found that the court had a duty to The trial court had a sua sponte duty to correctly instruct the jury on the general principles of law necessary for the jury's understanding of the case.

Appellate court contends that appellant's assertion and reliance on in re cons of Walker is incorrect for several reasons. The first is that in re People v Breverman (1998), the trial court's duty in regards to jury instructions over civil matters is different from criminal cases. In criminal matters, the trial court must instruct the jury on the principles of law relevant to the issues raised by any evidence presented, even absence any request. The second is that in civil matters the appellant must propose instructions to be presented with their legal theory and failure to do so does not burden the court to do so sua sponte (In re Metcalf v. County of San Joaquin  (2008). The final is that even though the LPS conservatee is entitled to due process rights under the LPS provisions, the due process rights are those of a civil nature not a criminal nature.

Conservatee's other minor contention was that status of LPS conservatee did not ipso facto establish incompetence therefore warranting imposition of special disabilities. Appellant argued that establishment of these special disabilities violated his due process rights and not valid. Conservatee argues that such disabilities cannot be applied without making an express finding. Conservatee cites in re Riese v. St. Mary's Hospital & Medical Center (1987) and in re Baber v. Napa State Hospital (1984). The appellate court disagrees stating that the instant court did properly specify the need, powers, and disabilities to be applied. The conservatee contends that it should be an on the record statement of the reason behind each disability specifically the suspension of driver's license. The court saw no legal requirement to do so and that the

The public guardian presented ample evidence that appellant suffered from a mental illness, making medication necessary, and the public guardian's report, Dr. Freedman-Harvey's testimony, and appellant's mother's testimony was that appellant often refused to take his medication. This evidence, and the evidence that appellant suffered delusional beliefs and auditory hallucinations, supported the order suspending appellant's driving privilege and right to contract. 


Based on these facts contained in this opinion the appellate court found that the trial court did not err in its judgement and affirmed the lower court's judgement. 


Procedural Posture
Appellant proposed conservatee challenged an order of the Superior Court of Los Angeles County, California, which appointed a conservator of his person and estate under California's Lanterman-Petris-Short (LPS) Act, Welf. & Inst. Code, § 5000 et seq. Appellant had requested a jury trial, and the jury unanimously found that he was gravely disabled.


Overview
Appellant argued that the trial court had a sua sponte duty to instruct the jury that if he was able to accept voluntary treatment, there was no need for a conservatorship. The court found that because LPS conservatorship proceedings were not criminal proceedings, the sua sponte duty to instruct that applied to jury trials in criminal cases did not apply to jury trials under Welf. & Inst. Code, § 5350. Thus, the court found no trial court error. Moreover, the trial court properly specified each of the powers and disabilities it imposed, and the evidence warranted the trial court findings. The county's public guardian presented ample evidence that appellant suffered from a mental illness, making medication necessary, and the public guardian's report, a forensic psychologist's testimony, and the testimony of appellant's mother was that appellant often refused to take his medication. That evidence, and evidence that appellant suffered delusional beliefs and auditory hallucination, supported the trial court's order suspending appellant's driving privilege and right to contract.


Outcome
The court affirmed the judgment.

    Questions or need more information?

    Leave phone or email for contact/ check spam folder for response
Enter

Los Angeles Office of the Public Guardian 
510 S Vermont Ave, 14th Floor 
Los Angeles, California 90020 
Phone: LPS (213) 974-0527
(213) 974- 0407
Los Angeles Mental Health Court 
5925 Hollywood Blvd 
Los Angeles, California 90028 
Fax: (442) 247-3972


San Diego Central Courthouse
1100 Union St, Dept 1902
​LPS Hearings Tuesday/Thursday 9am
San Diego, California 92101 
Phone: (619) 844-2700



San Diego
Office of the Public Conservator

5560 Overland Ave Ste 130
San Diego, California 92123
Phone: (858) 694-3500 ext 2
© 2017 LPS Conserved   ALL RIGHTS RESERVED.
  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • ABOUT YOURS TRULY
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • 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.
    • Writ of Habeas Corpus burden of proof
    • 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
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • 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
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LPS Conservatorship Court Overview
    • Public Conservator >
      • Los Angeles Public Guardian
      • CONSERVATORSHIP INVESTIGATION REPORT
      • CAREER >
        • Continuing Education
        • Public Conservator County Numbers '16
        • San Diego Public Conservator '19
      • LPS Conservatorship for Dependent Parents and Minors
    • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
    • Court of Appeals >
      • In re Ben C- Wende Brief no issue writ
    • Trial Court Transcript
    • Conservatorship Legal Documents
    • INITIAL INVOLUNTARY PROCEEDINGS >
      • Grave Disability >
        • Present 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
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose