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ISSUE OF DISCRETIONARY CHALLENGE
The issue in chief is whether the LPS Conservatorship investigator abused their discretion in refusing to allow an out of state conservator without providing all alternatives and good reason for such denial and whether their discretion can be challenged in order to make them make a decision that comports with the LPS Act and available law.
STATEMENT OF THE CASE
Around [date], public conservator was noticed of relative’s request to serve as private LPS Conservator. The relative cited that they were interested in serving as private conservator after an earlier offer by public conservator investigator xxxxx, to serve as conservator was given around [date]. Between that time, relative noted many deficiencies in the Public Conservator’s oversight of the case due to their high case load and limited workers. The conservatee was not provided proper dental care, timely vaccination with the COVID vaccine, nor given the correct medication despite emails with information about prior adverse reactions. Additionally, the conservatee has made many threats about leaving the county if discharged from a locked facility. The conservatee stated that he would return to living with his partner who in the trial court record has been noted as ineffective third party assistance. The conservatee intends to cross county lines and live without any reasonable plan to take care of himself or maintain medical care. When noticed about this the public conservator made no mention about extending the conservatee’s stay or providing safeguards if the conservatee elopes. The public conservator warned the relative that if the conservatee eloped, there would be little they could do except notice the police but even that would not result in probable return to the county. Based on this, conservatee’s relative reached out around again in [date] and made an email request to serve as LPS Conservator and cited to the previous offer made by xxxxx. The public conservator’s duty worker at this time, stated that the issue of being out of state would not be a problem and that he would conduct an investigation to determine whether it would be a viable option. Three days later, he returned and stated that it was not possible for relative to serve at this time. When asked for a reason, he was unable to provide a reason nor alternatives that would ensure the conservatee would receive the same level of care. An email was sent out to the supervisor of the LPS Conservatorship unit xxx and xxxx and both returned with a simple statement that it was not possible at this time. They did not provide notice of what reasons were behind their decision and how they would uphold the intent of the LPS act which is set in place to safeguard the public and provide treatment to the conservatee. This fact pattern calls for review.
The Court Should Hav the Authority to Review the Public Conservator’s Refusal to Appoint Private Conservator
Under Welfare and Institutions Code §§5352, 5352.5, Kaplan v Superior Court (1989) 216 CA3d 1354, 1360, and People v Karriker, supra, the determination of whether or not a person is gravely disabled as a result of a mental health disorder is vested solely in the discretion of the county officer designated to conduct LPS Conservatorship investigations. A trial court cannot order the filing of the initial petition; only the county conservatorship office can make that decision Kaplan v Superior Court (1989) 216 CA3d 1354, 1360. However, the court in County of Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434, found that the trial court does have the authority to review the LPS investigator's reason behind their refusal to seek an LPS conservatorship under the abuse of discretion standard. If the officer providing conservatorship investigation recommends against conservatorship, he or she must set forth all alternatives available in a written report. By a parity of reasoning, the court should consider that the trial court’s permission to investigate this refusal to file for initial Conservatorship should be extended to refusal to appoint a private LPS Conservator without a sufficient offer of proof.
Public Conservator Acted in a Manner Erroneous to Current Interpretation of the LPS Act
In People v. Karriker, 149 Cal. App. 4th 763, 778, 57 Cal. Rptr. 3d 412, 420 (2007), asserts that the role of the court and by extension the Public Guardian is to act in a manner consistent with the LPS Act which first and foremost “consider[s] the purposes of protection of the public and the treatment of the conservatee. Notwithstanding any other provision of the section, the court shall not appoint the proposed conservator if the court determines that appointment of the proposed conservator will not result in adequate protection of the public”. We assert that the public conservator in making its decision to not appoint relative as private conservator, it deviated from the intent of the Act and relied on its own erroneous interpretation of the law. The proposed alternative remedy proffered by the public guardian—continued public conservatorship and discharge of the conservatee to a less secure facility and less oversight of personnel trained in the care of mentally ill conservatees with no insight falls under failure to address or to satisfy the concerns for public protection and safety that are legally mandated with respect to the LPS Act. The Public Conservator may choose a private conservator unless that private conservator will not result in adequate protection of the public or proper treatment of the conservatee. We assert that the proposed relative has made a sufficient offer[s] of proof demonstrating their capacity to oversee the treatment of the conservatee, has the capacity to provide better oversight than the public conservator’s workers who carry many cases, a lack of conflict of interest, and consent of the conservatee to serve. Additionally, we aver that the public conservator will have failed in its duties by law when it failed to consider the conservatee’s high risk of elopement and failure to provide adequate protection against such. The duties of the conservatorship investigator under the LPS Act under Welf & I C § 5354 include a duty to determine the availability of suitable alternatives to a private conservator. The public conservator in light of notice of this risk did not ensure there were procedural safeguards, name programs or people who would be able to keep the conservatee safe if AWOLed despite relative proffering evidence that she could keep the conservatee safe and compliant, or provide a realistic plan to maintain treatment of the conservatee if they eloped. Additionally, under Welf & I C § 5354 provides that if the officer providing conservatorship investigation recommends against conservatorship the trial court may “consider the contents” of the investigator's report in determining abuse of discretion. Under Welf & I C § 5354 the court has discretion to render judgment on the availability of the conservatorship under the LPS Act, and the alternatives to it, even when the conservatorship investigator has recommended against that remedy. We assert that the trial court should apply this logic to the Public Conservator’s statement of facts regarding denial of appointment of private conservator and that the trial court shall investigate the conservator’s failure to provide good reasoning for their decision and lack of alternative safe and effective treatment options. It is with these matters that we assert that the public conservator acted in a way that is erroneous to current interpretations of the LPS Act.
This Abuse of Discretion Issue Differs from the Reasoning found in Karriker
In People v Karriker (2007) 149 CA4th 763, 770 the trial court determined that the public conservator was the sole entity that may file a petition to establish an LPS conservatorship. Although in this case the issue at stake is whether the public conservator has the sole discretion to appoint a private LPS Conservator. However, we reason that the trial courts in San Diego regularly apply the findings of Karriker to private LPS Conservator appointments. However, we aver that this case is more closely aligned to (Conservatorship of Kennebrew) Cty. of Los Angeles v. Superior Ct., 222 Cal. App. 4th 434, 453, 166 Cal. Rptr. 3d 151, 165 (2013). In the Kennebrew case, the appellate court found that the public guardian's refusal to establish an LPS conservatorship might be reviewed as an abuse of discretion if the public conservator was found to have misapplied the law or act in a manner that did not uphold the intent of the LPS Act. As discussed above, we have laid out the reasons for why the public conservator in this case erroneously applied the law. Like the Karriker court, the alternative remedy currently sought by the public guardian—continued public LPS Conservatorship, despite notices and documentation of the many risks that lie within continuing with public conservatorship, would constitute acting in a manner contrary to the law. Within the Kennebrew decision, the appellate court noted that Karriker failed to create a bright line rule as to how the trial court shall handle a situation when the public conservator might have abused his or her discretion in refusing to file a petition for a conservatorship under the LPS Act (or in this case, a petition for private LPS Conservator appointment) and this abuse was a result of the Public conservator’s deviation from the law . Furthermore, citing to the language of the Kennebrew opinion, the appellate court continued in its explanation that the Karriker court “left undecided the question whether a public guardian might abuse its discretion by failing to seek an LPS conservatorship “under some other set of facts.” Simply stated, the Karriker court did not establish whether a public guardian's refusal to establish an LPS conservatorship might be reviewed as an abuse of discretion thus leaving this issue open to interpretation. Given that this fact pattern arises “under some other set of facts” than those in Karriker, the trial court should give consideration to whether the public conservator abused its discretion in not allowing private LPS Conservator to be appointed and failure to provide an offer of proof as to why their decision to remain conservator is more favourable to the conservatee. We assert that the court’s decision should extend beyond Karriker and find that the public guardian has abused its discretion because of its erroneous interpretation of the controlling statute under Welf & I C § 5008 subparagraph (B) of paragraph (1) of subdivision (h), it has resulted in a refusal to properly investigate private LPS Conservatorship when the statutory requirements for remedying abuse of discretion are met.
For the foregoing reasons, we are requesting review of this matter not in an attempt to compel an official to exercise discretion in a particular manner, but to ensure that the public official will perform an official act required by LPS provisions. People v. Karriker, 149 Cal. App. 4th 763, 57 Cal. Rptr. 3d 412 (2007). Should the court decide to review the available law with the current court record, it shall find that the Public conservator abused its discretion as it had made its decision not to allow a private conservator based on its erroneous interpretation of a controlling statute which resulted in a refusal to seek appoint an LPS Conservator when the statutory requirements for private conservator appointment under Welf & I C § 5008 subparagraph (B) of paragraph (1) of subdivision (h) have been met and therefore the trial court would not be abusing its discretion in ordering the public conservator to make a decision that comports within the LPS Act as determined by the Kennebrew court.
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