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Looking into court investigator and doctor reports is key as they hold small facts and errors that can help a patient's counsel successfully argue their case. Not all but many of the LPS conservatorship investigators preform reports that are like rubber stamps to what the county wants. They gather the facts and then make a point blank statement that the conservatee should be conserved. The facts are too general or they present the conservatee as mentally ill but not severe enough to be gravely disabled. It is counsel's to find the errors in these reports and use them to their advantage in court. Here are some of the common mistakes found in reports that impact cases....
"CANHR’s Study of California Conservatorships reveals that the vast majority of completed GC 335 forms have virtually no internal variance regarding the many functional capacities that are supposed to be considered. The lack of variance indicates that assessing doctors do not carefully consider each factor individually but rather use one overall impression to dominate their analysis."
Least restrictive alternatives are often rubber stamped by the public conservator investigator. When reading over the court reports, often the public conservator gives generals such as the conservatee cannot maintain safely in society. The conservatee lacks the capacity to make his or her own medical decisions. Too often counsel for the conservatee will fail to really question the least restrictive alternatives. Counsel although has little time to review the file and does not have the time to investigate whether there are really no alternatives. There are usually some kind of alternative to LPS conservatorship. There may be third party relatives or assistance that the conservatee may have that the investigator has failed to discover. Also, counsel should look at the consideration that the court investigator has put into the criteria for grave disability and whether they met the high burden of proof.
Improper diagnosis that do qualify the person as mentally ill but not gravely disabled. There have been several cases where the concern was autism but the person was conserved under LPS even though limited conservatorships are in place for those who suffer from a developmental disorder. This points at the investigator's failure to really review the report and the law that mandates that autism is a diagnosis not suitable for LPS.
Failure to really include the conservatee's plan of action should they be discharged. The reporter focuses on whether the conservatee is mentally ill or not but not the fact of the matter of whether they can care for themselves or not. If a conservatee can take care of their food, clothing, or shelter then they cannot be found to be gravely disabled.
The court reporter should try and include all details that they find. Failure to include all the details builds an incomplete narrative that bodes poorly for the conservatee. Since the court relies heavily on the report failure to certain details may create a misleading report that makes the conservatee appear more severely impaired. The investigator may know the facts of the case but remember that the court is not a mind reader. Let everyone know whats up!
Improper reports can influence counsel. There are some attorneys who read the report and base their arguments on the contents of that report. It is human nature to have bias but counsel should remember that they are representing the conservatee's wishes not what is in the best interest of the conservatee. That is the county's responsibility. Many times I have seen counsel urge the conservatee to comply and wait until the 6 month review hearing to contest anything. And even though there may be merit in pushing the conservatee out of a trial, it is in the end the conservatee's right for a jury trial. Counsel's job is to properly defend their conservatee and creating a proper report is the first step.
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