Yesterday I sat in on probate conservatorship hearings and limited conservatorship hearings. There are two things I would like to address today about the hearings I saw.
The first is unnecessary conservatorships. The first family had a developmentally disabled daughter who suffered from global developmental delays. She however, could voice an opinion for herself, listened and took the advice of her family members if it was in her best favour, and did not object to having her parents serve as proposed co conservators. The parents asked for all seven powers and the conservatee only objected to the 7th power (right to control social sexual contacts/marriage). The judge called their case and when presenting their case the parents asked for a conservatorship over their daughter out of concern for what she might do in the future. Like LPS conservatorships, conservatorship is not used just as a preventative action. The judge reminded the parents that conservatorships stripped a person of their constitutional rights. He kept on arguing that the conservatee has the potential to act against what was in her best even though there was no prior actions indicating that she had gone against advice that was in her own best interests.
The second point that I would like to really address is that probate conservatorships are NOT LPS conservatorships. Too often parents will have an autistic child and come to court saying I would like complete control over my loved one's life. I would like to dictate where they would stay, who they may see, what medications and doctors they see, etc...... This is not the purpose of an probate conservatorship. A probate conservatorship has lower standard of proof because the powers granted to the conservator are far less restrictive. The conservator does not have the right to lock the conservatee in a facility against their will. or administer psychotropic medication against the conservatee's will.
The judge ended up granting the petition and both parents were appointed as co conservators over her person. However, there was an 30 minute delay as the parents were reminded of what a conservatorship was and how it was used as a last resort when no other alternatives could be found. He discussed how the daughter was not a criminal deemed incompetent to stand trial or an LPS conservatee. He said these are the only two circumstances where the conservatee would lose their rights. Otherwise the conservatee should maintain their rights.
Stephen Dale is a special needs attorney who practices mostly limited conservatorships. However, he does make many good points about LPS conservatorships. I enjoy his humour and ease with the topic matter. He gives frequent advice on limited conservatorship, patient's rights advocacy, and autism.
Watch his video in the link above.
"My doctor said he was going to talk to me. He had a hearing yesterday and said conservatorship. I don't even know what that means." "I think he is in a meeting right now but he will probably talk to you later." I didn't want to go there, nor should I go there. "He said conservatorship can get me a place to stay when I leave."
“It’s interesting how many patients in acute inpatient psych wards don’t know what a conservatorship is and how it pertains to their life; especially when they are conserved by the Public Guardian (PG.) I once had a patient ask me what a conservator was; he said one of the staff told him it was a person that takes care of you when you leave the hospital. No one mentioned that having a conservator meant you lose your right to freedom. Sadly enough, because they are conserved, a lot of the time a patient won’t know they are headed to a locked facility. They are not filled in with details of what a conservatorship means or how the Public Guardian plays a hand in it."
Loberg, Erica. Inside the Insane (Kindle Locations 3497-3500).
This shows how many patients are confused when they first hear of conservatorship. They do not know the term and how it relates to their discharge plan. For a patient, LPS conservatorship is very confusing. To begin they tend not be in a place where they understand their own mental state. The patient might have been recently stabilized and are just coming to terms with their new mental clarity. Personally when I first heard the word I did not heed it much attention because I did not know how much weight it carried. I was too focused on my 5150 and 14 day hold. Other patients whom I worked with have asked me what these papers mean and why they couldn't leave. after their hold was up. They asked what does this mean and why is this happening. It is true, the doctors do not tell the patients what is going on during their 14 day hold which is the most common time for initiating an LPS conservatorship. The patients only learn about it when they are served notice of hearing, letters of conservatorship, and proof of service for their T-con. One time I had snuck a peek at the paperwork for the hospital for a friend of mind and it was written potential T-con? I quickly let my friend know what was up and what was in store for her. She was not aware of their intent to establish a conservatorship and I had to spend the next few days teaching her and preparing her for her conservatorship investigation. She began to cry because she was nervous and was shocked to hear that she could be conserved and spend up to a year in a closed locked facility. (She subsequently was conserved and spent three consecutive years in Alpine Special Treatment Center. I think she moved to a lower level recently).
Another common issues is once the patient is placed on a T-con they are not informed of how they can defend themselves. They know very little of the process and why the psychiatrist is asking for LPS. They are told generals about the specifics of how and why they are being conserved. Few patients know and understand terms such as grave disability, powers of conservator, proof beyond a reasonable doubt, and how public conservator's role. On the day of the hearing they meet with their public defender and given 10 minutes to prep for their hearing. I overhear often patients ask the basics minutes before their hearing and being given perfunctory answers in return. How are they supposed to prepare a solid and well informed argument based on that?
One thing I would like to note is that there are psychiatrists who does not inform the patient of the intent to initiate a conservatorship because they find that it is above the patient's head. They may falsely assume that they will not notice that they are conserved. (This is not true for all doctors but there are some who will do such things). I once had a doctor in San Bernardino who thought that I would not notice that I was placed on a 14 day hold. I do not know what was going on his head. Patients mentally ill or not deserve to know their fate no especially when they are about to have their civil liberties deprived.
I would like to address an issue that leads to case conflicts and poor management. Often there will be a conservatorship calendar and several cases will be continued to several factors such as incomplete report, papework delays, psychiatrist absence, or patient issues. In the case of paperwork not being filed or public conservator issues, please be mindful that these patients are being detained against their will. The conservatee spends an entire day in the hospital with no room to leave. In the case of county psychiatric institutions, these are not comfortable places to spend your days. The beds are minimally comfortable, the rooms the same, doors constantly locked, and a limited few hours outside. The patients's days revolve around the clock hands and their scheduled meals. So when they find that they may have to spend another week or two in the psychiatric hospital due to legal complications, this does not pose fair to them. In an ideal world everything would happen within proper time frames so that they are not detained without proper cause for too long.
Similary after a conservatorship is established, the conservator may delay the paperwork when placing the conservatee. I have called over to LA county and our own, and sometimes have gotten a response that the letters of conservatorship are often delivered a week or two after a decision has been made. This is not quite fair for a conservatee who has been conserved and awaiting placement. The facility often requires proper paperwork for the conservatee to be placed. Without this paperwork in place, the conservatee may face another several weeks of waiting. From personal experience this waiting is very hard due to the lack of freedom and schedule.
All I ask is that court is mindful of the conservatee's situation and try to expedite conservatorship paperwork since the conservatee's treatment is contingent on the right paperwork. So much of mental health treatment is paperwork which is a shame because it reduces the quality of time spent on treatment and patient care.
A very common question I find and get asked is how do I start a conservatorship for a family member? This question is quite difficult to answer without knowing the patient's medical background, relationship with patient, county of residence., and compliance with current medication/treatment plan. I will walk you through some of the issues that commonly prevent family members from obtaining an LPS conservatorship for their loved one.
The first question I begin with is what is the patient's diagnosis? This question is very important as that the patient must have a serious mental illness to even be considered for a LPS conservatorship. Because LPS conservatorship is managed by the public conservator, there are very limited investigators and resources. Because of these limited resources, the public conservator only considers patients with serious mental illness. Serious mental illness is bipolar disorder, schizophrenia, schizoaffective., and in some rarer cases major depressive disorder. The reason that the public conservator only considers serious mental illness because serious mental illness has a higher chance for meeting the criteria of gravely disability.
The next question that I ask is how many hospitalizations has the patient had? The patient should have had several historical hospitalizations. Without any history of hospitalization, the court will find that the conservatee is not gravely disabled enough. Hospitalizations "show" that the conservatee is truly unable to safely manage in their community and need intensive treatment and supervision. From what I hear and seen in cases is around 3-5 hospitalizations indicate a greater likelyhood of a conservatorship being granted. Even if the family member says that "even if he hasnt been hospitalized before, he shows signs of mental illness" or "if it weren't for my help he would be on the streets and struggling" they will be hard pressed to conserve their loved one. Third party assistance clause may be relevant in the latter case.
The third question I will pose to these questioning caretakers, is what county are they usually seeking to conserve the patient. Depending on the county they will either have a harder or easier time conserving the patients. In some counties with more funding such as Santa Clara, the caretaker will have a relatively easier time conserving the patient, but in large counties without much funding like LA or San Diego, conservatorship will be hard to obtain. Seems like a small factor but it is important to note that it does place a factor.
The last thing I consider is treatment plan. Does the patient take their meds, engage in outpatient or therapy, and/or show insight into their mental illness. I have run across caretakers who have compliant loved ones but still want a conservatorship out of concern for what may happen. One lady mentioned how well her son was doing but she wanted to conserve him just in case of relapse. I had to reiterate to the concerned mother that he had to be actively showing symptoms in order to be considered for hospitalization and conservatorship. I strongly recommend that the caretakers wait for the conservatee to decompensate before asking the public conservator for a psychiatric investigation to be opened against the patient.
The final and largest point that I make is that ONLY THE PUBLIC CONSERVATOR MAY INITIATE AN LPS CONSERVATORSHIP. The public conservator does not take referrals from family or friends. This is not probate conservatorship where anyone can make a referral. Only the psychiatrist can send a request and the public conservator can initiate proceedings with the court. The family can send a request into the public conservator for a psychiatric evaluation, but the public conservator's psychiatrist will be the one making a referral.
These are many points that people are not told about LPS conservatorship and knowing this can help clear up the many confusing points surrounding LPS conservatorship initiation procedures.
This is a surprisingly common question. What do I do if the patient has autism and a mental disorder such as bipolar. As more and more research comes out data starts to suggest that some patients may have a concurrent diagnosis of autism spectrum disorder and bipolar disorder. This is a hard line to draw since there are many over laps between autism spectrum disorder and bipolar behaviour. Verbal and physical outbursts seen in co-morbid patients are consistent with sensory overload common with autisms but are also common with manic rages seen in bipolar patients. When the parents of an adult child find themselves faced with long term treatment, they may find themselves confused with legal terminology. They may hear about LPS conservatorship and limited conservatorships at the same time. They wonder which one is best for their loved one and which one they can obtain.
A simple and fast breakdown.
For autism spectrums disorders and developmental disorders
Standard of proof: clear and convincing evidence- lower
Referrals through regional center, self, conservatee, or family
Rights of conservator: right to make general medication decisions (NOT psych) right to decide education, control if conservatee can enter contracts, manage social sexual contacts, and where the conservatee can live (not locked)
The hearing takes place usually in a probate court in an very informal manner- bench trial
Lasts as long as the conservatee lives or until it the order is terminated.
For serious mental illness such as bipolar, schizophrenia, and schizoaffective
Standard of proof: proof beyond a reasonable doubt
Referrals through doctor then public conservator
Rights of conservator to make over conservatee: withold voting, can order psychotrop medication, can place in a closed locked facility, restrict firearms, withold driver's license
The hearing usually is heard within a criminal courthouse or a special courthouse for mental health matters and there is an option for a jury trial
So which one will the autistic patient have?
Depending on the patient's presentation to the court investigator, most likely a limited conservatorship. A limited conservatorship reduces the burden off the public conservator. The public conservator has a massive caseload and cannot manage extra work. It is considered that autism trumps any mental illness and the patient will be referred out to the regional center for further assessment. For the patient to even be considered for an LPS conservatorship, the referring party should make a bigger deal over the mental illness symptoms. In my experience it is wise to not even mention autism to the investigator. This way, you can increase your chances of having an LPS investigation opened rather than being pushed away. In all honestly, an LPS conservatorship will give you far more solid footing in demanding certain treatments for your loved one if they are unable to manage with some assistance. An LPS conservatorship grants you far more power than a limited conservatorship.
An issue I would like to address is the over reliance on the DSM V. Too many doctors in and out of the office rely on the DSM criteria for diagnosing and treating patients. When I did my time in county, I had doctors who literally looked at the DSM and check the boxes for the symptoms. This lead to my misdiagnosis. DSM-5 criteria for: Bipolar I disorder: These doctors find themselves so rushed that they cannot take the time to really think about the patient's history and circumstances. All of these play a role in mental illness and indicate the genesis of the behaviour.
Take for example bipolar disorder. Many people will receive an incorrect diagnosis of bipolar disorder due to isolation of symptoms. The doctor will treat the patient based on what they observe in the now. During a psych eval, the doctor will question the patient about their symptoms and what they are.
"Have you slept too much or finding yourself sleeping too little?"
"Do you find yourself feeling hopeless or down?"
"Are you more goal driven recently?"
"Have you been more sexually active in the last few weeks?"
"Do you feel unusually elated or euphoric?"
"Do you hear voices or see things that aren't there?"
There are the common barrage of questions asked during a psych intake. The patient may lie or give simple answers such as yes or no. Not often do I hear clinicians probe the issue farther such as asking "what are your living conditions, have any tragic events happened recently, or have you suffered domestic violence." "How does this affect you."
These secondary questions can provide valuable as they might uncover other reasons for the behaviour. Even though a great deal of symptoms are best answered by a organic mental illness that comes from the brain, some of them may stem from conditions. Some conditions such as abuse or trauma lead to irrational behaviour or emotions. It has been well documented that children who suffer from abuse demonstrate erratic behaviour unrelated to mental illness. It would be termed mental disordered behaviour. For example when I lost my child, on the outside, I displayed behaviours consistant with a mixed episode. There were moments of crying, yelling, depressive moments, and irrational thoughts. Prima facie this would present as a bipolar mixed episode with psychotic features. However, the disqualifying factors are time, isolated incidence, and lack of impairment in daily life. This reaction did not halt my life or create issues with the law. It was an isolated incident that perhaps needed talk therapy but did not necessitate hospitalization nor consevatorship. I personally believe that a small number of psych patients need to be reevaluated to ensure that their mental illness is primarily organic and not simply a one time reaction to stress or trauma. Like there is situational DV I strongly believe in situational mental illness. disorders.
For reference: DSM V criteria for bipolar I.
Characterized by the occurrence of 1 or more manic or mixed episodes
Juvenile Dependency and