LPS MENTAL HEALTH CONSERVATORSHIP

LPS conservatorship
and
​juvenile dependency updates

  • 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

4/4/2022

Disability Rights LPS Conservatorship Appeal and Challenge Seminar: Additional Information

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Disability Rights LPS Conservatorship Appeal and Challenge Seminar

I have inserted some extra information to consider before attending this seminar hosted by DRC on the 12th of April.

About the webinar:
Join us as we discuss the re-hearing process, options to appeal the judge’s decision and understanding how Third-Party Assistance can help show a person is not gravely disabled.
​

We will explore the following:

  • The LPS Conservatorship Process
    • What is Third Party Assistance?

Þ   From the outset, Welf & I C §5350(e)(1), establishes that a person is not gravely disabled if he or she can survive safely with the assistance of a third party.
Þ   The court must consider willingness and ability of family members, friends, or other third parties when assessing whether a proposed conservatee can provide for his or her needs.
Þ   Welf & I C §5350(e)(2) dictates that family, friends, and others must specifically indicate in writing their willingness and ability to help. If they do not do this the court must not consider their willingness and ability to provide help.
Þ   It is presumed that if a family member testifies about their willingness to help then their written testimony is not needed.
Þ   Welf & I C §5350(e)(3): states that families do not need to testify or write out that they are unwilling to provide assistance. This is so that families do not have to face the “pain of testifying in front of loved ones”.
Þ   However, we have several cases that better define third party assistance and the meaning of the term “survive safely”
Þ   The legal authority on this matter is found in Conservatorship of Early (1983) 35 C3d 244; Conservatorship of Neal (1987) 190 CA3d 685; Conservatorship of Johnson (1991) 235 CA3d 693; Conservatorship of Wilson (1982) 137 Cal. App. 3d 132
Þ   Conservatorship of Early: the appellate court issued its opinion stating that a jury is entitled to consider the availability of third party assistance to meet a proposed conservatee's basic needs for food, clothing and shelter.
Þ   Conservatorship of Neal: The appellate court found that a conservatee cannot be found gravely disabled with the assistance of his wife. They opined that no one in society truly survives completely without assistance. Even if there is risk that the relative will not be able to control a relapse in the future if they are currently being able to assist their loved one, conservatorship cannot be established because of a perceived likelihood of future relapse.
Þ   Conservatorship of Johnson: If a conservatee’s mental condition was so severe it is “beyond an ordinary person's ability to deal with, ... [requiring] expert assistance. ...”, then the court may find that the person is gravely disabled despite written or oral testimony regarding third party assistance.
Þ   Conservatorship of Wilson: In this case, the Fourth District held it was error to instruct the jury the person is gravely disabled if he or she is unable, "'unassisted,'" to provide for his or her basic personal needs. The court cites Davis and added that in modern society no one lives completely independently of everyone and everything. It was therefore too much to ask a proposed conservatee to do so.
Þ   Conservatorship of Jones (1989) 208 CA3d 292: The California Department of Corrections and Rehabilitation does not qualify as a third party provider of assistance.
Þ   Conservatorship of Law (1988) 202 CA3d 1336: A board and care home does not qualify as third party assistance when the establishment of the conservatorship predates their move into the board and care.

·       Things that can be done to appeal the conservatorship hearing decision
  • What is a Rehearing Petition?
Þ   Welf & I C §5364 All LPS conservatee are entitled to a rehearing on the issue of whether they are gravely disabled and in need of LPS conservatorship.
Þ   The petition for rehearing to be filed at any time, but after the filing of the first petition, another one cannot be filed for another 6 months. Conservatorship of Amanda B. (2009) 173 CA4th 1380.
Þ   BURDEN OF PROOF: For the rehearing, the conservatee bears the burden of proving by a preponderance of the evidence that they are no longer gravely disabled.
Þ   There is no right to a jury trial. Baber v Superior Court (Hill) (1980) 113 CA3d 955, 965.
Þ   Additionally, any time, a conservatee may petition the court for a hearing to contest the rights denied under Welf & I C §5357 or the powers granted to the conservator under Welf & I C §5358. Welf & I C §5358.3.
Þ   Welf & I C §5358.3; Welf & I C §5358.3: However, after the filing of the first petition challenging the rights denied. No further petition for rehearing may be submitted for 6 months. 
 
o   What is a Writ of Habeas Corpus?

Þ   Per Welf & I C §7250; . Pen C §1473: a conservatee may challenge their placement or conditions of confinement via a writ of habeas corpus
Þ   Patients need to understand that writ of habeas corpus post LPS Conservatorship establishment are very hard to “get”. Since the courts view writs as extraordinary relief, conservatees are generally foreclosed from pursuing writs.
Þ   The courts consider that the LPS act has many built in safeguards for LPS conservatees to challenge conservator’s powers and their conditions confinement so writs are not routinely granted post LPS Conservatorship establishment. In re Gandolfo (1984) 36 C3d 889; In re Azzarella, 207 Cal. App. 3d 1240, 254 Cal. Rptr. 922 (Ct. App. 1989)
Þ   The Pen C §1473 writ is available, but to sustain such a writ, the party would have to allege that "unreasonable consequences [would] ensue because of the limitations of the [LPS] statutory review mechanisms”.
Þ   As your counsel how to best build a case for unreasonable consequences.
 
o   Appealing LPS Conservatorship
 
Þ   In general, the rules governing criminal appeals apply to an LPS conservatorship. Cal Rules of Ct 8.304–8.368, 8.480, 8.508.
Þ   The trial court will not stay the conservatorship proceedings during the lifetime of an appeal.
Þ   This is most likely because of the lengthy time periods to process an appeal as the conservatorship would be “stayed” for a year as the appellate court receives trial court records, etc.
Þ    In rare cases the appellate court may order that the trial court stay the proceedings. Welf & I C §5352.4.
Þ   Trial counsel has the obligation to file a timely notice of appeal on behalf (NOA) when they deem that there are justiciable issues. Pen C §1240.1(b).
Þ   Trial counsel must also assist with appointing appellate counsel. Pen C §1240.1(b).
Þ   HOWEVER, de novo court review of the record, is not required in LPS conservatorship proceedings. (People v Wende (1979) 25 C3d 436) does not apply to LPS Conservatorship.
Þ   See in re Conservatorship of Ben C. (2007) 40 C4th 529
Þ   On review, the court of appeal must apply the substantial-evidence test to determine whether the record supports a finding that the conservatee is gravely disabled.
Þ   Know that often the actual issue of appointment of an LPS Conservatorship becomes moot once it terminates by operation of law appellate court may hear the case on the grounds that there are issues that “capable of repetition yet evading review”. They may also hear a case citing that the issue on appeal is not moot even when the appointment of LPS Conservator has terminated. Conservatorship of Forsythe (1987) 192 CA3d 1406; Conservatorship of Bones (1987) 189 CA3d 1010; Conservatorship of Moore (1986) 185 CA3d 718.
Þ   The courts will be highly deferential to the trial court so the conservatee will have a very hard time overcoming the standard of review; abuse of discretion.
Þ   Remember to ask your trial lawyer about preserving the record for appeal as unpreserved evidence, objections, etc are generally not considered at the appellate level.
 
How to develop an action plan to show you are not gravely disabled?
See link

Speakers:
Debi Davis MSW, is a person with lived experience and a long-time mental health advocate. Volunteered for 10 years with Riverside County Patient Rights Office. For the past 13 years, Ms. Davis has worked in the Peer and Self-Advocacy unit of Disability Rights California, facilitating self-advocacy groups at a state hospital and facilities in the community.
Maria Garcia’s journey with Disability Rights California started 14 years ago. First as Assistant Patients’ Rights Advocate with the California Office of Patients’ Rights. COPR advocates for the rights of patients receiving mental health treatment at state hospitals.
Maria has lived experience with mental health and while working for COPR she learned to self-advocate and advocate for others. In 2020, she joined DRC’s Peer Self-Advocacy program as Coordinator.
Her passion is learning and teaching to empower others.
 
 

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    Juvenile Dependency and
    LPS Conservatorship
     

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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


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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