TECHNICAL CONSIDERATIONS OF CARE COURT LIMITED APPLICATION IN RE INCREASED LPS CONSERVATORSHIP REFERRALSRead Now
TECHNICAL CONSIDERATIONS OF CARE COURT LIMITED APPLICATION IN RE INCREASED LPS CONSERVATORSHIP REFERRALS
So this shall address the issue of how CARE lacks a solid plan of enforcement and the direct issue referring for LPS Conservatorship. This shall analyze each element of SB 1338 seriatim and its application within the current framework of LPS Conservatorship.
SB 1338 reads in part:
5979. (a) (1) If, at any time during the proceedings, the court determines by clear and convincing evidence that the respondent is not participating in the CARE proceedings, after the respondent receives notice, or is not adhering to their CARE plan; after the respondent receives notice, the court may terminate the respondent’s participation in the CARE program process. (2) To ensure the respondent’s safety, the court may utilize existing legal authority to request an evaluation of a mentally disordered person under to Welf & I C § 5200.
The next issue is mostly a matter of clarification. The SB cites to Welf & I C § 5200. This code reads in part: Any person as a result of mental disorder, to be a danger to others, or to himself, or to be gravely disabled, may be given an evaluation. Welf & I C § 5213 (a) finds if upon evaluation, the person is found to be in need of treatment because they are as a result of mental disorder, a danger to others, or to himself, or gravely disabled, they may be detained for treatment in a facility for 72-hour treatment and evaluation. However, per Welf & I C § 5203, any individual who seeks a petition and know that the person is not, as a result of mental disorder, a danger to himself, or to others, or gravely disabled is guilty of a misdemeanor, and may be held liable in civil damages by the person against whom the petition was sought. Welf & I C § 5208 notes if the person to be evaluated fails to appear the professional person in charge, shall notify the person who served the order to have the person to be evaluated [and] detained.
The next portion of the SB reads:
The court shall provide notice to the county behavioral health agency and the Office of the Public Conservator and Guardian if the court utilizes that authority.
(3) If the respondent was timely provided with all of the services and supports required by the CARE plan [reasonable services finding], the fact that the respondent failed to successfully complete their CARE plan, including reasons for that failure, shall be a fact considered by the court in a subsequent hearings under the Lanterman-Petris-Short Act (Welf & I C § 5000 et seq), provided that the LPS Conservatorship hearing occurs withing within six months of the termination of the CARE plan and this shall create a presumption at that hearing that the respondent needs additional intervention beyond the supports and services provided by the CARE plan.
PUBLIC GUARDIAN CANNOT BE COMPELLED TO INITIATE LPS PROCEEDINGS AND EVEN IF THERE WERE A BYPASS PROVISION ADDED TO THE LEGISLATURE, THIS WILL STILL FAIL TO OVERCOME THIS HURDLE
Now to address the issue of whether CARE will expediate LPS Conservatorship referrals. As relevant to this discussion, Penal Code § 1370, (c)(2) authorizes the criminal court to order the conservatorship investigator to initiate conservatorship proceedings when it appears to the criminal court the defendant is gravely disabled. It is very important to distinguish this from order the public guardian to initiate a temporary conservatorship. This means that
As a refresher SB reads: (2) The court shall provide notice to the county behavioral health agency and the Office of the Public Conservator and Guardian if the court utilizes that authority.
DRC’s concerns that CARE will lead to more LPS Conservatorship cases is misplaced as the current legal authority does not allow courts nor health agencies to direct the public guardian to act in a particular manner.
As CARE statute is “fine tuned” policy makers need to construe this body of law in reference to the whole system of prior existing LPS Conservatorship law of which CARE intends to play a part, so that both laws may be harmonized and have a tangible beneficial effect on the severely mentally ill population it purports to serve. Any CARE legislative construction rendering statutory language surplusage or contravening LPS Act intent ought be avoided. Kaplan v. Superior Court (1989) 216 Cal.App.3d 1354, 1356 [265 Cal.Rptr. 408].
Juvenile Dependency and