Supreme Court of California Justia
Citation 48 Cal. 4th 131, 225 P.3d 554, 105 Cal. Rptr. 3d 424

Conservatorship of John L.

Filed 2/25/10

IN THE SUPREME COURT OF CALIFORNIA

Conservatorship of the Person of JOHN L. )
____________________________________)

SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY
Petitioner and Respondent,
S157151
v.
Ct.App. 4/1 D048654
JOHN L.,
San Diego County
Objector and Appellant.
Super. Ct. No. MH99550

At a hearing on April 4, 2006, the superior court considered a petition to
establish a conservatorship of the person of John L. pursuant to the Lanterman-
Petris-Short Act (LPS Act or Act; Welf. & Inst. Code, § 5000 et seq.).1 A report
prepared by a conservatorship investigator the month before the hearing stated that
John “made it clear” he did not want a conservator and did not need any
assistance. At the hearing, however, John‟s appointed attorney informed the court
that John did not want to be present in court and was not contesting the
conservatorship. Relying on the attorney‟s representations, the court excused

1
Unless otherwise indicated, all further statutory references are to this code.
1


John‟s presence, granted the petition, and appointed the Public Conservator of San
Diego County as conservator of John‟s person. We conclude the superior court
did not commit any statutory or due process violation in doing so. We therefore
affirm the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The LPS Act authorizes the superior court to establish a conservatorship of
a person who is gravely disabled as a result of a mental disorder. (§§ 5350, 5008,
subd. (h)(1).) Here, the Public Conservator of San Diego County (Public
Conservator) sought to establish an LPS conservatorship of the person of 60-year-
old John L. The relevant facts, all of which occurred in 2006, are undisputed.
On February 15, John was taken to an emergency psychiatric unit in San
Diego on an involuntary basis. He was yelling and screaming and unable to
provide a chief complaint. Later that day, John was transferred to the behavioral
health unit at Palomar Hospital, under the care of Dr. Christopher Gorman.
During John‟s stay, he was described as extremely manic, grandiose,
nondirectable, intrusive, manipulative, and having poor boundaries. He refused
antipsychotic medication until February 22, when a court-appointed hearing
officer found that he lacked the capacity to withhold his consent on the matter.
(See Riese v. St. Mary’s Hospital & Medical Center (1987) 209 Cal.App.3d 1303.)
On February 24, Dr. Gorman executed a declaration recommending a
conservatorship based on his belief that John was gravely disabled as a result of a
mental disorder, diagnosed as “Bipolar Disorder, manic [with] psychotic features.”
(§ 5352.1.) He cited the circumstances that John had been evicted from his
apartment, and that while residing at Palomar Hospital he took food from other
patients‟ trays, barricaded the door to his room (which required fire department
intervention), often walked around with his shirt open, and had attempted to leave
his room one night naked from the waist down. Although Dr. Gorman considered
2
other alternatives to conservatorship, he found no suitable alternative available for
John.
Dr. Gorman executed a second declaration stating he had informed John
that a recommendation for conservatorship of the person was being filed with the
court, and that a petition for appointment of a conservator also might be filed. He
explained to John what the appointment of a conservator meant and identified the
possible orders that could result from a hearing on the petition. He also informed
John of his rights to be present at the hearing, to hire an attorney of his choice or
to have one appointed for him, to demand a court or jury trial on the issue of grave
disability, to confront and cross-examine witnesses, and to produce witnesses in
opposition to the petition.
On March 7, the Public Conservator filed an “Ex Parte Petition for
Appointment of Temporary Conservator and Conservator of the Person” for John
(the petition), along with Dr. Gorman‟s two declarations. (§§ 5350, 5352.) That
same day, the court appointed the Public Conservator as temporary conservator.
(§ 5352.1.)
On March 17, a “Citation for Conservatorship” was issued, notifying John
he was required to appear at a hearing on April 4, at which time the court would
determine whether to appoint the Public Conservator as a conservator of his
person. (§ 5350; Prob. Code, § 1823.) The temporary conservator filed a
“Conservatorship Investigation Report” (the investigation report), prepared by
investigator Candy Elson of the Public Conservator‟s office, which recommended
that a conservatorship be established to ensure John would obtain necessary
mental heath treatment. (§ 5354.) The investigation report summarized John‟s
lengthy history of mental illness dating back to the early 1960‟s and noted both his
previous diagnosis of schizophrenia and his current diagnosis as “Bipolar Manic
with Psychosis.” The report recounted that John had numerous past involuntary
3
hospitalizations with a long history of medication noncompliance, a significant
history of violent, agitated, and obstreperous behavior when hospitalized, and an
“extremely turbulent” present course at Palomar Hospital.
The investigation report additionally described investigator Elson‟s meeting
with John at Palomar Hospital on March 3. According to Elson, John appeared
somewhat subdued and sedated, and also was “religiously preoccupied” and
delusional. John, however, “made it clear that he did not want a Conservator and
thought that he did not need any assistance.” The report concluded there was no
viable alternative to conservatorship, and recommended “a closed, locked facility”
as “the least restrictive, most appropriate placement to meet [John‟s] needs.”
(§ 5354.)
John was personally served with the petition and citation for
conservatorship. His appointed counsel, Lidia Garcia, was served with the
petition, the investigation report, and notice of the April 4 hearing for the
appointment of the Public Conservator as a conservator of the person for John.
John did not attend the April 4 hearing. As relevant here, Garcia appeared
at the hearing on John‟s behalf and reported to the court, “Your [H]onor, I have
visited with him at Telecare Choices. Recently he was here. He had requested a
writ which he took off calendar. At any rate Mr. L[.] is doing much better. [¶] We
discussed the conservatorship and on Friday then he wished to put it over until
yesterday so that he could think about it. When we met he indicated that at this
time he was not contesting the conservatorship. He did not want to be present in
court. So we would ask the court to excuse his presence.”
After excusing John‟s presence from the hearing, the superior court
received the investigation report into evidence. (§ 5354.) It then ordered the
appointment of the Public Conservator as conservator of the person of John and
further ordered that John not be permitted to vote or contract, to possess a driver‟s
4
license or a firearm, or to refuse or consent to medical treatment. Consistent with
the investigation report‟s recommendation, the court determined that the least
restrictive placement available and necessary for John was a closed, locked
treatment facility.
On appeal, John contended his rights under the LPS Act, as well as his state
and federal constitutional due process rights, were violated when the superior
court proceeded with the April 4 conservatorship hearing in his absence and
ordered the conservatorship without any admissible evidence that he knowingly
and intelligently waived his right to appear at the hearing. The Court of Appeal
affirmed.2
DISCUSSION
The central issue is whether the superior court properly proceeded with the
April 4, 2006, hearing on the petition to establish a conservatorship of the person
in John‟s absence. It bears emphasis that, before his appeal, John raised no
objection to the court‟s actions; in fact, it is undisputed he told his appointed
attorney he was not contesting the proposed conservatorship and did not wish to
appear at the hearing. The court excused John‟s presence and appointed a
conservator only after hearing the attorney‟s representations on the matter.
We first review the requirements of the LPS Act to determine whether a
violation occurred when the superior court excused John‟s absence based upon his
appointed counsel‟s representations. If no statutory violation appears, we must

2
John‟s conservatorship ended during the pendency of the appellate process.
“We exercise our discretion to decide this otherwise moot case because it raises
important issues that are capable of repetition but likely to evade review.” (In re
Lemanuel C.
(2007) 41 Cal.4th 33, 38, fn. 4; see Conservatorship of Susan T.
(1994) 8 Cal.4th 1005, 1011, fn. 5.)

5


then determine if the court nonetheless deprived John of due process in
establishing the conservatorship as it did. These are legal issues subject to de
novo review. (See Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 357;
Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 610.)
A. The LPS Act
The LPS Act governs the involuntary detention, evaluation, and treatment
of persons who, as a result of mental disorder, are dangerous or gravely disabled.
(§ 5150 et seq.) The Act authorizes the superior court to appoint a conservator of
the person for one who is determined to be gravely disabled (§ 5350 et seq.), so
that he or she may receive individualized treatment, supervision, and placement
(§ 5350.1). As defined by the Act, a person is “gravely disabled” if, as a result of
a mental disorder, the person “is unable to provide for his or her basic personal
needs for food, clothing, or shelter.” (§ 5008, subd. (h)(1)(A).)
Integral to the LPS Act is its procedure for ascertaining whether a
conservatorship of the person should be established. Each county is required to
designate an agency to undertake an investigation to aid the court in determining
whether a conservatorship is appropriate (§ 5351), and the investigating officer
must submit a comprehensive written report to the court prior to the
conservatorship hearing (§ 5354). The written report must include “all relevant
aspects of the person‟s medical, psychological, financial, family, vocational and
social condition, and information obtained from the person‟s family members,
close friends, social worker or principal therapist.” (Ibid.) It must also state if the
investigator recommends a conservatorship, and if not, identify all available
alternatives. (Ibid.) When a conservatorship is recommended, the report must
make recommendations concerning a suitable conservator, the powers and duties
to be granted and imposed upon the conservator, the legal disabilities to be
6
imposed upon the proposed conservatee, and the appropriate placement. (§§ 5355,
5356.)
The procedures for establishing a conservatorship include a number of
requirements pertaining to notice, hearing and trial rights, and other matters.
Specifically, the petition for appointment of a conservator of the person and the
citation for conservatorship must be served upon the proposed conservatee at least
15 days before the scheduled hearing date, and the proposed conservatee must be
given notice of the privileges and rights subject to deprivation as part of the
conservatorship. (§ 5350; Prob. Code, §§ 1823, 1824.) A hearing must be held
within 30 days of the date of the petition, and the court must “appoint the public
defender or other attorney for the . . . proposed conservatee within five days after
the date of the petition.” (§ 5365.) The proposed conservatee “shall have the right
to demand a court or jury trial on the issue whether he or she is gravely disabled,”
but must do so before or within five days following the hearing on the
conservatorship petition. (§ 5350, subd. (d).) The party seeking imposition of the
conservatorship must prove the proposed conservatee‟s grave disability beyond a
reasonable doubt, and a jury verdict finding such disability must be unanimous.
(Conservatorship of Roulet (1979) 23 Cal.3d 219, 235.) An LPS conservatorship
automatically terminates after one year, and reappointment of the conservator
must be sought by petition. (§ 5361.)
To determine whether the superior court violated the LPS Act when it
proceeded with the April 4, 2006, hearing in John‟s absence, we must first find
what the Act requires. In construing the Act, our goal is to ascertain and
effectuate the Legislature‟s intent. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th
661, 666; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 543.)
We start by observing that the LPS Act makes no express mention of any
specific requirement for the presence of a proposed conservatee at a hearing to
7
establish a conservatorship of the person. Section 5350, however, mandates that
LPS conservatorships shall be established pursuant to the procedure set forth in the
Probate Code, subject to certain listed exceptions. As pertinent here: “The
procedure for establishing . . . a conservatorship under this chapter shall be the
same as that provided in Division 4 . . . of the Probate Code, except as follows:
[¶] . . . [¶] (f) Conservatorship investigation shall be conducted pursuant to this
part and shall not be subject to Section 1826 . . . of the Probate Code. [¶] . . . [¶]
(h) As otherwise provided in this chapter.” (§ 5350, italics added.) In turn,
division 4 of the Probate Code embodies the Guardianship-Conservatorship Law
(Prob. Code, § 1400 et seq.), a separate statutory scheme governing the
appointment of conservators of the person for “adults who for any reason are
incapable of taking care of themselves.” (38 Cal.Jur.3d (2006) Incompetent
Persons, § 3, p. 180.)3
Before delving into the relevant Probate Code procedures, we briefly
review some important distinctions between LPS conservatorships and probate
conservatorships. Unlike an LPS conservatorship, a probate conservatorship does
not depend on a showing of grave disability resulting from a mental disorder, and
involuntary commitment is not contemplated. (See generally 38 Cal.Jur.3d, supra,
Incompetent Persons, § 3, p. 180.) While LPS conservatorship proceedings may
be initiated only by the agency-designated conservatorship investigator (§ 5352),
the proposed conservatee, spouse, domestic partner, relative, or other “interested”
agency, person, or friend has standing to file a petition for a probate
conservatorship (Prob. Code, § 1820, subd. (a)). Finally, the court need not
appoint counsel in all proceedings to establish a probate conservatorship because,

3
Henceforth, this opinion will refer to conservatorships established pursuant
to the Guardianship-Conservatorship Law as probate conservatorships.
8


unlike the situation in LPS conservatorships, there is no risk of involuntary
commitment.4 But because the person seeking the probate conservatorship may or
may not be acting free of ulterior motives, the court generally must appoint a
“court investigator” to perform an independent and comprehensive investigation.
(Prob. Code, § 1454; Prob. Code, § 1826 [providing exception in subd. (o) when
the proposed conservatee personally executes the petition or nominates the
conservator, and attends the hearing].)5
We now return to section 5350, requiring that the conservatorship
procedures set forth in division 4 of the Probate Code be followed in establishing
LPS conservatorships where they do not conflict with LPS Act provisions. As
relevant here, division 4 contains Probate Code section 1825, which provides that
“[t]he proposed conservatee shall be produced” at the hearing to establish a
conservatorship, subject to three exceptions. We are concerned with the exception

4
In contrast to LPS procedures, appointment of counsel in a probate
conservatorship proceeding is mandatory only if the proposed conservatee
requests counsel, or if the court determines, based on information contained in the
court investigator‟s report or obtained from any other source, that the appointment
would be helpful to the resolution of the matter or is necessary to protect the
proposed conservatee‟s interests. (Prob. Code, § 1471, subds. (a), (b).)

5
The individual appointed as the “court investigator” may not have a
personal or other beneficial interest in the proceeding (Prob. Code, § 1454, subd.
(a)), and must have the following qualifications: “(1) The training or experience,
or both, necessary (i) to make the investigation required under this division, (ii) to
communicate with, assess, and deal with persons who are or may be the subject of
proceedings under this division, and (iii) to perform the other duties required of a
court investigator. [¶] (2) A demonstrated sufficient knowledge of law so as to be
able to inform conservatees and proposed conservatees of the nature and effect of
a conservatorship proceeding and of their rights, to answer their questions, and to
inform conservators concerning their powers and duties.” (Prob. Code, § 1454,
subd. (b).)

9


set forth in subdivision (a)(3) of that section (Probate Code section 1825(a)(3)),
providing that a proposed conservatee may be excused from attending the hearing
if he expressly informs the “court investigator” that he is unwilling to attend and
does not contest the conservatorship or oppose the proposed conservator.6 To aid
in the operation of Probate Code section 1825, Probate Code section 1826 requires
the court investigator to interview the proposed probate conservatee personally, to
provide relevant information regarding the hearing to establish a conservatorship
and the proposed conservatee‟s rights, to determine the individual‟s inability or
unwillingness to attend the hearing and desire to contest the establishment of the
conservatorship or appointment of the proposed conservator, and to report the
investigator‟s determinations to the court. (Prob. Code, § 1826, subds. (c), (e), (f),
(k).)7 The Probate Code‟s mechanism for excusing a proposed conservatee‟s

6
Probate Code section 1825, subdivision (a), requires that the proposed
conservatee “be produced” at the hearing to establish a probate conservatorship,
“except in the following cases: [¶] (1) Where the proposed conservatee is out of
the state when served and is not the petitioner. [¶] (2) Where the proposed
conservatee is unable to attend the hearing by reason of medical inability. [¶] (3)
Where the court investigator has reported to the court that the proposed
conservatee has expressly communicated that the proposed conservatee (i) is not
willing to attend the hearing, (ii) does not wish to contest the establishment of the
conservatorship, and (iii) does not object to the proposed conservator or prefer that
another person act as conservator, and the court makes an order that the proposed
conservatee need not attend the hearing.” This case does not implicate the first
two statutory exceptions, pertaining to proposed conservatees who are out of state
and those who are unable to attend the hearing because of medical inability.
(§ 1825, subd. (a)(1), (2).)

7
Probate Code section 1826 provides in pertinent part that, regardless of
whether the proposed conservatee attends the hearing, the court investigator shall
interview the proposed conservatee personally (id., subd. (a)); inform the proposed
conservatee of the nature, purpose, and effect of the proceeding, and of the right to
oppose the proceeding, to attend the hearing, to have the matter of the
establishment of the conservatorship tried by jury, to be represented by legal

(footnote continued on next page)
10


production and attendance through a court investigator promotes the dual
legislative goals of minimizing the individual‟s unwanted court appearances, while
guarding against abuse of the conservatorship process by ensuring the individual
actually wants to forgo attendance and opposition to the proposed conservatorship.
In determining whether and to what extent the procedures set forth in
Probate Code section 1825 apply to LPS conservatorship proceedings, we must
give effect to Welfare and Institutions Code section 5350‟s explicit command that
the procedure for establishing LPS conservatorships shall be the same as that
provided for establishing probate conservatorships, except that “[c]onservatorship
investigation shall be conducted pursuant to [the LPS Act] and shall not be subject
to [Probate Code] Section 1826.” (§ 5350, subd. (f).) The quoted language is
critical, for as noted above, the Probate Code contemplates the use of a court-
appointed investigator to conduct an independent investigation into whether a

(footnote continued from previous page)

counsel, and to have legal counsel appointed by the court if the proposed
conservatee is unable to retain counsel (id., subd. (b)); determine whether it
appears the proposed conservatee is unable or unwilling to attend the hearing (id.,
subd. (c)); determine whether the proposed conservatee wishes to contest the
establishment of the conservatorship (id., subd. (e)); determine whether the
proposed conservatee objects to the proposed conservator or prefers another
person to act as conservator (id., subd. (f)) and whether the proposed conservatee
wishes to be represented by legal counsel and desires appointment of legal counsel
(id., subds. (g), (i)); determine whether the appointment of legal counsel would be
helpful to the resolution of the matter or is necessary to protect the proposed
conservatee‟s interests in any case where the proposed conservatee does not plan
to retain legal counsel and has not requested appointment of counsel (id., subd.
(j)); and report to the court in writing “[w]hether the proposed conservatee is not
willing to attend the hearing, does not wish to contest the establishment of the
conservatorship, and does not object to the proposed conservator or prefer that
another person act as conservator” (id., subd. (k)(2)).
11


conservatorship should be established, and in particular, Probate Code section
1826 requires the court investigator to interview the proposed conservatee in order
to ascertain and report the information necessary to trigger the application of
Probate Code section 1825(a)(3). (Prob. Code, § 1826, subds. (c), (e), (f), (k).)
By contrast, the agency-designated official charged with conducting a
conservatorship investigation in an LPS proceeding has none of the duties
specified in Probate Code section 1826 (see ante, fn. 7), and in particular has no
obligation to investigate or report on the proposed conservatee‟s unwillingness to
attend the hearing or nonopposition to the conservatorship. (See Welf. & Inst.
Code, §§ 5354, 5356.)
In order to give effect to Welfare and Institutions Code section 5350‟s
mandate that LPS conservatorships be established pursuant to the same procedure
used to establish probate conservatorships where there is no conflict between the
two schemes, we hold that Probate Code section 1825(a)(3)‟s procedure pertaining
to a proposed conservatee‟s production and attendance at the hearing must be
followed in LPS cases, with one exception. That exception, rooted in section
5350, subdivision (f), effectively bars the authorization and use of a court-
appointed investigator to convey the desire of a proposed conservatee not to
appear at a hearing. Section 5350‟s prohibition on the use of court investigators,
however, does not foreclose using other procedures generally applicable in civil
proceedings, namely, Code of Civil Procedure section 283, subdivision 1, which
permits an attorney to make binding representations in court on behalf of her
client. Indeed, as we explain below, construing the LPS Act to permit counsel for
proposed LPS conservatees to seek excusal of their clients‟ presence is logical and
furthers the purposes of the Act.
In providing that the procedure set forth in division 4 of the Probate Code
shall apply in establishing LPS conservatorships absent a statutory conflict,
12
Welfare and Institutions Code section 5350 plainly requires the operation of
Probate Code section 1827, which provides in full: “The court shall hear and
determine the matter of the establishment of the conservatorship according to the
law and procedure relating to the trial of civil actions, including trial by jury if
demanded by the proposed conservatee.” (Italics added.) While proceedings
under the LPS Act are already commonly viewed as being civil in nature (e.g.,
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 537 (Ben C.)), Probate Code
section 1827 makes it all the more clear that the laws of civil procedure apply in
LPS conservatorship proceedings. (See Conservatorship of Maldonado (1985)
173 Cal.App.3d 144, 148.)
Of significance here is Code of Civil Procedure section 283, subdivision 1,
which prescribes the manner in which an attorney may bind her client in a civil
proceeding. (See City of Fresno v. Baboian (1975) 52 Cal.App.3d 753, 757.)
Under that statute, an attorney “shall have authority” to “bind [her] client in any of
the steps of an action or proceeding by [her] agreement filed with the Clerk, or
entered upon the minutes of the Court.” (Code Civ. Proc., § 283, subd. 1.) In
view of Welfare and Institutions Code section 5350, Probate Code section 1827,
and Code of Civil Procedure section 283, subdivision 1, we hold that a client who
tells his appointed attorney he is unwilling to attend the hearing and does not wish
to contest a proposed LPS conservatorship may reasonably expect his attorney to
report such information to the court, with binding effect. (See Conservatorship of
Mary K. (1991) 234 Cal.App.3d 265, 271 (Mary K.); Conservatorship of
Maldonado, supra, 173 Cal.App.3d at p. 148.)8

8
We express no opinion on the situation where an appointed attorney seeks
to excuse her client‟s presence at the hearing without the client‟s consent or over
the client‟s objection.
13


Although Probate Code section 1825 speaks in terms of requiring that a
proposed conservatee “be produced” at the hearing unless one of three exceptions
is shown, John suggests the provision is properly understood as conferring a
“right” upon a proposed conservatee to attend the hearing. (Cf. Prob. Code,
§ 1823, subd. (b)(5).) John‟s interpretation of the statute, however, does not
support a different outcome. Even assuming Probate Code section 1825 grants
such a right of attendance, the right is of legislative origin and not a constitutional
right. When a statutory right in a civil commitment scheme is at issue, the
proposed conservatee may waive the right through counsel if no statutory
prohibition exists. (E.g., People v. Rowell (2005) 133 Cal.App.4th 447, 452-454
[in sexually violent predator recommitment proceeding, trial court properly
accepted counsel‟s representation that client wanted court trial instead of jury
trial]; Mary K., supra, 234 Cal.App.3d at p. 271.) Our review of the LPS Act
discloses no provision purporting to bar a proposed conservatee‟s reliance on
counsel to convey to the court a waiver of the right to attend a hearing to establish
an LPS conservatorship.9

9
John also suggests the term “court investigator,” as used in Probate Code
sections 1825 and 1826, may include persons, such as investigator Candy Elson in
the instant case, who conduct conservatorship investigations in LPS proceedings.
Starting from this premise, he contends that Elson‟s investigation report did not
satisfy Probate Code section 1825(a)(3)‟s requirement for excusing his production
at the April 4 hearing because it indicated he was opposed to the conservatorship.
These contentions are lacking in merit. First, we have already explained that an
agency-appointed LPS conservatorship investigator has no obligation to
investigate or report on the matters addressed in Probate Code section 1825(a)(3).
Second, the LPS Act, properly construed, allowed John to obtain court excusal of
his production through his attorney. Third, although John evidently told Elson in
early March that he was opposed to a conservatorship, there is no dispute he told
his attorney otherwise shortly before the April 4 hearing.
14


Moreover, allowing a proposed LPS conservatee to communicate such
matters through counsel is substantially consistent with the procedure applicable in
probate conservatorships, without posing any conflict with LPS Act provisions.
As indicated above, Probate Code section 1825(a)(3) contemplates that a person
who has no objection to a proposed conservatorship or conservator and no desire
to attend the hearing may have his production at the hearing excused after
informing the court of his views through a court investigator, i.e., one who has
“demonstrated sufficient knowledge of law so as to be able to inform . . . proposed
conservatees of the nature and effect of a conservatorship proceeding and of their
rights, [and] to answer their questions.” (Prob. Code, § 1454, subd. (b)(2); see
ante, fn. 5.) Our interpretation of the LPS Act allows a person who has no
objection to a proposed LPS conservatorship, and no desire to attend the hearing,
to similarly have his production excused when he has communicated his wishes to
the court through an advocate who is professionally obligated to perform these
same advisory duties. Permitting counsel to serve this function is only logical, and
satisfies the Legislature‟s intent both to safeguard the rights of proposed
conservatees and “to minimize, when appropriate and warranted, actual court
appearances” in proceedings to establish a conservatorship. (Conservatorship of
Moore (1986) 185 Cal.App.3d 718, 731 (Moore).)10

10
Relying on an unenacted bill that he claims was “later revised and became”
the bill that was enacted as a predecessor of Probate Code section 1825, John
contends the Legislature considered, but later rejected, a provision that would have
allowed the proposed conservatee‟s attorney to waive presence at the probate
conservatorship hearing. (Assem. Bill No. 4260 (1973-1974 Reg. Sess.) § 17; see
Assem. Com. on Judiciary, Dig. of Assem. Bill No. 4260 (1973-1974 Reg. Sess.)
p. 2.) Even assuming the unenacted bill may be considered a part of the legislative
history of Probate Code section 1825, we reject John‟s suggestion that the
Legislature‟s action (or inaction) evinces an intent to preclude attorney waivers of
presence.

(footnote continued on next page)
15


In this case, John‟s appointed attorney, Lidia Garcia, informed the superior
court at the April 4 hearing that she had discussed the conservatorship with John,
and that John indicated to her (1) “at this time he was not contesting the
conservatorship” and (2) he “did not want to be present in court.” There is no
suggestion that Garcia misrepresented what John told her or that she lacked actual
authority to waive John‟s presence on his behalf. (See Conservatorship of
Maldonado, supra, 173 Cal.App.3d at p. 148.) Garcia‟s conveyance of John‟s
stated desire to absent himself from the hearing was duly entered upon the minutes
of the court, and was thus effective to bind John. (§ 5350; Prob. Code, § 1827;
Code Civ. Proc., § 283, subd. 1.) The superior court did not violate the LPS Act
when it excused John‟s production and proceeded with the April 4 hearing without
him in attendance.
B. Due Process
Because a conservatorship may result in an involuntary civil commitment,
John contends that the interests involved in conservatorship proceedings are no
less fundamental than those at stake in criminal proceedings, and that therefore
many of the due process safeguards against the erroneous deprivation of liberty in

(footnote continued from previous page)

The unenacted bill reflects that, prior to the time the Probate Code provided
authority for court investigators in 1976, the Legislature considered a provision
requiring appointment of counsel in all proceedings to establish a probate
conservatorship. (Assem. Bill No. 4260 (1973-1974 Reg. Sess.) § 17; see Assem.
Com. on Judiciary, Dig. of Assem. Bill No. 4260 (1973-1974 Reg. Sess.) p. 2; cf.
Stats. 1976, ch. 1357, § 7, p. 6184; Assem. Com. on Judiciary, Dig. of Assem. Bill
No. 1417 (1975-1976 Reg. Sess.) as amended May 15, 1975, p. 3.) But because
the Legislature decided not to mandate counsel in all such proceedings, its
decision to forgo the accompanying provision for waivers through counsel is
hardly surprising.
16


the criminal context — such as the right to a hearing, the right to trial, and the
right to confront witnesses — are equally important and apply in the
conservatorship context. John claims he was denied due process because the
superior court found he waived these fundamental rights, without any showing his
waiver was valid. More specifically, although John does not dispute that his
attorney accurately informed the court he did not want to attend the hearing or
contest the conservatorship, he argues that the court improperly relied on the
attorney‟s unsworn statements without asking her any questions to determine
whether he was capable of providing, and had provided, a knowing and intelligent
waiver of his rights. (See Thorn v. Superior Court (1970) 1 Cal.3d 666, 675
(Thorn) [absent the patient‟s understanding “of the nature of his detention and of
his rights, it is difficult to perceive how he could knowingly decide whether or not
to exercise them”].)
“ „The question of whether due process has obtained can only be answered
by scrutinizing the circumstances in which the deprivatory action arose.
[Citations.] “Because of the broad spectrum of concerns to which the term must
apply, flexibility is necessary to gear the process to the particular need; the
quantum and quality of the process due in a particular situation depend upon the
need to serve the purpose of minimizing the risk of error. [Citation.]” ‟
[Citation.]” (Conservatorship of Tian L. (2007) 149 Cal.App.4th 1022, 1028.) In
conservatorship cases, we balance three factors to determine whether a particular
procedure or absence of a procedure violates due process: the private interests at
stake, the state or public interests, and the risk that the procedure or its absence
will lead to erroneous decisions. (Ben C., supra, 40 Cal.4th at pp. 538-539
[relying on Lassiter v. Department of Social Services (1981) 452 U.S. 18 and In re
Sade C. (1996) 13 Cal.4th 952].) We also consider “ „the availability of prompt
remedial measures.‟ ” (Thorn, supra, 1 Cal.3d at p. 673.)
17
There can be no doubt that “[t]he liberty interests at stake in [an LPS]
conservatorship proceeding are significant. A person found to be gravely disabled
may be involuntarily confined for up to one year, and the conservatorship may be
extended for additional one-year periods, so long as the person remains gravely
disabled.” (Ben C., supra, 40 Cal.4th at p. 540.) In addition to such confinement,
a conservatorship may result in the loss of other personal rights, including driving
privileges, contracting and voting rights, and the right to refuse or consent to
medical treatment. (See ibid.; § 5357.) A person also has a reputational interest in
not being improperly or unfairly stigmatized. (See Conservatorship of Roulet,
supra, 23 Cal.3d at pp. 228-230.)
Likewise, there is no question that the public interests promoted by the LPS
Act are substantial. The goals of the Act include “ „ending the inappropriate and
indefinite commitment of the mentally ill, providing prompt evaluation and
treatment of persons with serious mental disorders, guaranteeing and protecting
public safety, safeguarding the rights of the involuntarily committed through
judicial review, and providing individualized treatment, supervision and placement
services for the gravely disabled by means of a conservatorship program.
(§ 5001.)‟ [Citation.] The Act also serves to protect the mentally ill from criminal
victimization (§ 5001, subd. (g)) and from the myriad forms of suffering endured
by those unable to care for themselves.” (Ben C., supra, 40 Cal.4th at p. 540.)
As much as the private interests at stake are weighty and deserving of
protection, the stated purposes of the LPS Act foreclose any argument that an LPS
commitment is equivalent to criminal punishment in its design or purpose.
Because of their differing objectives, “the analogy between criminal proceedings
and proceedings under the LPS Act is imperfect at best and . . . not all of the
safeguards required in the former are appropriate to the latter.” (Ben C., supra, 40
Cal.4th at p. 538 [declining to require Anders/Wende procedures in LPS
18
conservatorship appeals]; see Conservatorship of Susan T., supra, 8 Cal.4th at p.
1020 [exclusionary rule inapplicable in LPS conservatorship proceedings];
Conservatorship of Joel E. (2005) 132 Cal.App.4th 429, 439-440 [no
constitutional right to self-representation]; Conservatorship of Bones (1987) 189
Cal.App.3d 1010, 1015-1016 [no constitutional right not to testify].)
Nonetheless, because the private interests implicated in an LPS
conservatorship are significant, “several layers of important protections” have
been built into the system (Ben C., supra, 40 Cal.4th at p. 540) to “vigilantly
guard[] against erroneous conclusions” in such proceedings (id. at p. 542). For
starters, the LPS Act provides for a “carefully calibrated series of temporary
detentions for evaluation and treatment” before a person may be found to be
gravely disabled and subject to a year-long commitment. (Ben C., at p. 541.) The
process begins with an initial 72-hour detention for evaluation and treatment
(§ 5150), which may be extended by certification for 14 days of intensive
treatment (§ 5250) and is subject to additional extension periods of detention and
involuntary commitment when further intensive treatment is found necessary (e.g.,
§§ 5270.15, 5300).
Moreover, a number of notice requirements must be satisfied before a
conservatorship may be imposed. The proposed conservatee must be advised of
the right to a hearing, the right to representation of counsel, and the right to
demand a court or jury trial. (§§ 5350, 5365; Prob. Code, § 1823; In re Gandolfo
(1984) 36 Cal.3d 889, 897 & fn. 3.) Additionally, the proposed conservatee is
entitled to service of the conservatorship petition and the citation for
conservatorship at least 15 days before the specified hearing date (§ 5350; Prob.
Code, § 1824), as well as notice of the privileges and rights subject to deprivation
as part of the conservatorship and a copy of the conservatorship investigation
report (§§ 5350, 5356; Prob. Code, § 1823).
19
Another important protection is the requirement that the court appoint an
attorney for the proposed LPS conservatee within five days after the date of the
petition. (§ 5365.) Like all lawyers, the court-appointed attorney is obligated to
keep her client fully informed about the proceedings at hand, to advise the client
of his rights, and to vigorously advocate on his behalf. (Bus. & Prof. Code,
§ 6068, subd. (c); Conservatorship of David L. (2008) 164 Cal.App.4th 701, 710
[a proposed LPS conservatee has a statutory right to effective assistance of
counsel]; Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030, 1037, fn. 6
[“Implicit in the mandatory appointment of counsel is the duty of counsel to
perform in an effective and professional manner.”]; see Mary K., supra, 234
Cal.App.3d at p. 272; Conservatorship of Ivey (1986) 186 Cal.App.3d 1559,
1566.) The attorney must also refrain from any act or representation that misleads
the court. (Bus. & Prof. Code, § 6068, subd. (d); Rules Prof. Conduct, rule 5-
200(B).)
Finally, prompt remedial relief is available through several mechanisms
after a conservatorship has been established. As indicated, an LPS
conservatorship automatically terminates after one year. (§ 5361.) During this
one-year period, the conservatee may twice petition for rehearing as to his status
as a conservatee (§ 5364), and need only prove by a preponderance of the
evidence at the rehearing that he is no longer gravely disabled. (Ben C., supra, 40
Cal.4th at p. 541.) Additionally, the conservatee may twice petition for a hearing
to contest the rights denied under section 5357 or the powers granted to the
conservator under section 5358. (§ 5358.3.) The availability of these remedial
measures “will ordinarily insure that any change in the conservatee‟s condition or
other circumstance affecting the appropriateness of the restrictions placed on him
is recognized within a reasonable time.” (In re Gandolfo, supra, 36 Cal.3d at p.
899.)
20
We now assess the risk that judicial reliance on an attorney‟s unsworn
statements in court regarding a proposed conservatee‟s waiver of presence and
trial rights will lead to erroneous conservatorship decisions. To aid in our
consideration, we find it useful to look to the Court of Appeal‟s analysis in Moore,
supra, 185 Cal.App.3d 718, a case addressing a similar due process challenge in
the analogous context of a petition to reestablish an LPS conservatorship. In
Moore, the public conservator had served the petition and all required notices on
the conservatee and his appointed attorney. (See § 5362.) Prior to the noticed
hearing date, the attorney filed a sworn declaration stating she had ascertained that
the conservatee did not oppose reestablishment of conservatorship and did not
request a hearing. On the basis of that declaration and the submitted medical
evidence, the superior court followed statutory procedures and, on its own motion
and without a formal hearing, reappointed the public conservator and reimposed a
restriction that the conservatee could not refuse treatment directly bearing on his
grave disability. (Moore, at p. 724.)
In analyzing the adequacy of the statutory ex parte reestablishment
procedures followed by the superior court, Moore reviewed the relevant statutory
notice, hearing, and trial provisions11 and additionally considered the application
of the local rules that directed counsel to inform the court, via a sworn affidavit, if
the conservatee had no opposition to the conservator‟s reappointment. Moore
determined that not only did the combination of these procedures provide
“constitutionally sound safeguards against error,” but they affirmatively
“welcomed and encouraged [the conservatee‟s] participation in the

11
The LPS Act provides that the right to demand a court or jury trial on the
issue of grave disability also applies in proceedings to reestablish conservatorship.
(§ 5350, subd. (d); see § 5362.)
21


conservatorship decision.” (Moore, supra, 185 Cal.App.3d at p. 730.) Moreover,
by ensuring that counsel would inform the court of any nonopposition to the
proposed reestablishment, the procedures allowed the conservatee “to avoid a
potentially uncomfortable and disruptive court appearance which, in light of his
nonopposition to reestablishment, would have likely been brief and pro forma.”
(Ibid.) Moore further observed that, even assuming the court acts in error, any
“loss of liberty would have arguably been de minimus” because the conservatee
could challenge the ex parte reestablishment under statutory provisions (§§ 5362,
5364) or anytime by writ of habeas corpus. (Moore, at p. 730; cf. In re Gandolfo,
supra, 36 Cal.3d at pp. 899-900 [habeas corpus available only in extraordinary
circumstances where the statutory procedures are shown to be inadequate and to
result in unreasonable consequences greatly detrimental to conservatee].)
In a passage that speaks to the situation here, Moore emphasized the
significance of a conservatee‟s representation by counsel in determining the
validity of the conservatee‟s waiver of a hearing or trial: “ „When counsel is
present, a voluntary and intelligent waiver of known rights may properly be
inferred from the record, without a specific on-the-record showing as to each
right.‟ ” (Moore, supra, 185 Cal.App.3d at p. 733.) Moore also rejected the
contention that conservatees who have been found gravely disabled are unable to
knowingly and intelligently waive their right to a hearing. As the decision
observed, “conservatees are not, by reason of their conservatorship, automatically
considered incompetent, and their ability to knowingly and intelligently waive
their hearing rights is a question of fact.” (Id. at p. 732; see § 5331 [“No person
may be presumed to be incompetent because he or she has been evaluated or
treated for mental disorder . . . , regardless of whether such evaluation or treatment
was voluntarily or involuntarily received.”]; In re Qawi (2004) 32 Cal.4th 1, 17
[“ „one of the cardinal principles of LPS‟ ” is “ „that mental patients may not be
22
presumed incompetent solely because of their hospitalization‟ ”]; Riese v. St.
Mary’s Hospital & Medical Center, supra, 209 Cal.App.3d at p. 1319 [“LPS
recognizes that patients may be involuntarily committed yet nevertheless remain
capable of giving informed consent.”].)
Returning to the instant case, we reach a conclusion similar to the one
obtained in Moore, supra, 185 Cal.App.3d 718. When we consider the
combination of due process protections that have been built or read into the LPS
Act, including the prehearing notice and counsel requirements and the requirement
for a comprehensive conservatorship investigation report, as well as the familiar
duties imposed on counsel in the representation of LPS clients and the availability
of remedies after a conservatorship is in place, we have no difficulty concluding
that these numerous checks sufficiently guard against the risk of erroneous
conservatorship decisions, without the need to impose additional waiver-related
requirements. Accordingly, a superior court may properly find a waiver of
presence and trial rights when informed by the attorney that the proposed
conservatee does not want to attend the hearing to establish the LPS
conservatorship and does not oppose the conservatorship. Whether the proposed
conservatee has knowingly and intelligently waived his presence and trial rights is
a question of fact; it may not be presumed that a person found gravely disabled, or
one who has been evaluated or treated for a mental disorder, is incompetent to
waive such rights.
Here, John does not deny he informed his appointed attorney, Lidia Garcia,
that he did not wish to attend the hearing and did not contest the proposed LPS
conservatorship. John claims, however, that Garcia‟s representations on the
matter were contradicted by investigator Elson‟s report stating that, in their
meeting on March 3, John “made it clear that he did not want a Conservator and
thought that he did not need any assistance.” We disagree. As reported by Garcia
23
and confirmed by court records, John‟s actions after his meeting with Elson gave
rise to the reasonable implication that his views substantially changed during the
month preceding the Tuesday, April 4, 2006, hearing.
At the April 4 hearing, Garcia described the following chronology of events
to the superior court. After the March 3 meeting with investigator Elson, John
filed a writ petition opposing his detention, and he thereafter appeared in court but
decided not to pursue the writ. In this regard, Garcia was referring to events
already known to the court.12 Garcia then explained that she and John discussed
the conservatorship, and that on the Friday before the April 4 hearing John wanted
more time to think about it. When the two later met, John told Garcia he was not
contesting the conservatorship and did not want to be present in court. On this
record, the court could reasonably conclude that while John initially opposed a
conservatorship when asked about the subject on March 3, he subsequently
changed his mind and decided he no longer wished to contest the conservatorship
and did not want to attend the April 4 hearing.13

12
The record before us reflects that the judge who handled John‟s writ
petition was the same judge presiding at the April 4 hearing. John‟s petition,
denying he had a mental disorder that rendered him dangerous or gravely disabled,
was presented to the court on March 6 and set for hearing the next day. The court
issued a writ requiring John‟s production at the March 7 hearing, and John
appeared at the hearing but withdrew the writ petition.

13
On February 22, a court-appointed hearing officer found that John lacked
the capacity to withhold his consent to antipsychotic medication. On March 7,
John was placed under a temporary conservatorship that restricted his rights to
vote and contract, and his right to consent or refuse to consent to medical
treatment. Because these circumstances were apparent from the record at the time
of the April 4 hearing, John contends the superior court should not have assumed
he was capable of knowingly or intelligently waiving his presence and trial rights.
We are not persuaded.

(footnote continued on next page)
24


John complains the court should not have relied on his attorney‟s
representations because they were not given under oath. We conclude that sworn
statements are not necessary in this context. Misrepresenting to the court that a
client has no objection to a conservatorship is, among other things, a serious
violation of the Business and Professions Code and the State Bar Rules of
Professional Conduct. (Bus. & Prof. Code, §§ 6068, subd. (d), 6106; Rules Prof.
Conduct, rule 5-200(B).) Because an attorney remains answerable for such
misconduct (Bus. & Prof. Code, §§ 6077, 6100; see Clark v. Willett (1868) 35 Cal.
534, 539), there is little to be gained by requiring counsel to submit her statements
under oath.
More importantly, the Code of Civil Procedure provides that an attorney
“shall have authority” to “bind [her] client in any of the steps of an action or
proceeding by [her] agreement . . . entered upon the minutes of the Court.” (Code
Civ. Proc., § 283, subd. 1.) That is exactly what happened here. John told his
appointed attorney he did not contest the proposed conservatorship and did not
want to attend the hearing. The attorney then informed the court of John‟s
position, which was duly entered upon the court minutes. No more was necessary.

(footnote continued from previous page)

As the record indicates, John began taking antipsychotic medication after
the hearing officer‟s February 22 finding. He thus had been on medication for
well over a month by the time he met with Garcia shortly before the April 4
hearing. Garcia reported at the hearing that John was “doing much better,” and
that not only was he able to discuss the conservatorship with her, but he even
asked for more time to “think about it” before making a decision. On this record,
the court cannot be faulted for accepting the proffered waiver. (See § 5331.)

25


(See Mary K., supra, 234 Cal.App.3d at p. 271; Conservatorship of Maldonado,
supra, 173 Cal.App.3d at p. 148.)14
Finally, both John and amicus curiae California Association of Mental
Health Patients‟ Rights Advocates contend a proposed LPS conservatee must
appear in court in person, or the court must go to him, so the court may observe
the individual directly and conduct personal questioning in order to evaluate his
capacity and ensure his waivers are intelligent and knowing. We disagree.
We find that the value of requiring an unwilling proposed conservatee to
appear before the court is too slight to justify its adoption as part of the
conservatorship process. First, although a court‟s observation of an individual
might be useful in some circumstances, an attorney will generally have a more
extensive opportunity to confer with her client about his rights and to weigh the
client‟s behavior. (See Conservatorship of Chambers (1977) 71 Cal.App.3d 277,
288.) Second, compelling a proposed conservatee to appear before the court,
irrespective of his stated nonopposition to conservatorship and request to be
absent, would effectively render his right to waive presence and a trial

14
People v. Davis (2005) 36 Cal.4th 510 does not compel otherwise. In
Davis, we held that an attorney did not effectuate a valid waiver of the defendant‟s
federal and state rights to presence at a pretrial hearing because, even though the
attorney informed the court that the defendant was aware of the purpose of the
hearing and had decided to waive his presence, the defendant had not submitted a
waiver in written form and there was no evidence he understood the right he was
waiving and the consequences of doing so. (Davis, at pp. 529-532.) That
decision, however, involved the federal constitutional right to be personally
present at a criminal trial (U.S. Const., 6th & 14th Amends.), as well as a statutory
right of presence that could not be waived absent the defendant‟s personal written
waiver (Pen. Code, § 977, subd. (b)). As explained above, we find this case to
present another of those situations where “the analogy between criminal
proceedings and proceedings under the LPS Act is imperfect at best and . . . not all
of the safeguards required in the former are appropriate to the latter.” (Ben C.,
supra, 40 Cal.4th at p. 538.)
26


meaningless. Third, mandating attendance under such circumstances might also
result in “a potentially uncomfortable and disruptive court appearance” for the
proposed conservatee which, in light of his nonopposition, would likely be “brief
and pro forma.” (Moore, supra, 185 Cal.App.3d at p. 730.)
In sum, we conclude the superior court did not deprive John of due process
when it established the conservatorship of his person in his absence. This
conclusion is consistent with decisions generally recognizing that, even though
certain rights implicated in civil proceedings are substantial, they may be waived
by an attorney with the client‟s express consent. (Mary K., supra, 234 Cal.App.3d
at pp. 269-271 [bench trial held after counsel reported client‟s wish to waive jury
trial]; cf. Linsk v. Linsk (1969) 70 Cal.2d 272, 278 [counsel cannot abdicate a
substantial right of the client contrary to express instructions]; Conservatorship of
Christopher A., supra, 139 Cal.App.4th at p. 613 [attorney may not, without the
client’s express consent, enter into a stipulated judgment regarding placement,
disabilities, and conservator powers].) It also finds support in prior decisions
acknowledging that, in the absence of any contrary indication, the superior court
may assume that an attorney is competent and fully communicates with the
proposed conservatee about the entire proceeding. (E.g., Mary K., supra, 234
Cal.App.3d at p. 272; Conservatorship of Ivey, supra, 186 Cal.App.3d at p. 1566;
see also People v. Ngo (1996) 14 Cal.4th 30, 37 [an attorney admitted to the
California Bar is presumptively competent].)15

15
John argues that the superior court‟s error in excusing him from the
proceedings led to a second error, namely, that the court failed to conduct an on-
the-record voir dire as required under Probate Code section 1828. No voir dire is
required, however, when the court excuses the proposed conservatee‟s attendance
pursuant to Probate Code section 1825(a)(3). (Prob. Code, § 1828, subd. (c).)
Because the court properly accepted John‟s waiver of his rights through counsel,
this contention fails.
27


CONCLUSION AND DISPOSITION
The superior court did not violate John‟s statutory or due process rights
when it proceeded, in John‟s absence, with the April 4, 2006, hearing on the
petition to establish a conservatorship of his person. The judgment of the Court of
Appeal is affirmed.
BAXTER, J.

WE CONCUR:

GEORGE, C. J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

28


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Conservatorship of John L.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 154 Cal.App.4th 1090
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S157151
Date Filed: February 25, 2010
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Kerry Wells

__________________________________________________________________________________

Attorneys for Appellant:

Linda M. Fabian, under appointment by the Supreme Court, for Objector and Appellant.

Morten P. Cohen for California Association of Mental Health Patients‟ Rights Advocates as Amicus Curiae
on behalf of Objector and Appellant.

Anne E. Menasche for Protection & Advocacy, Inc., as Amicus Curiae on behalf of Objector and
Appellant.


__________________________________________________________________________________

Attorneys for Respondent:

John J. Sansome, County Counsel, Leonard W. Pollard II and William A. Johnson, Jr., Deputy County
Counsel, for Petitioner and Respondent.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Petitioner
and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Linda M. Fabian
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282

Morten P. Cohen
536 Mission Street
San Francisco, CA 94105
9415) 442-6678

William A. Johnson, Jr.
Deputy County Counsel
1600 Pacific Highway, Room 355
San Diego, Ca 92101-2469
(619) 531-5801


Petition for review after the Court of Appeal affirmed the judgment in a conservatorship proceeding. This case presents the following issue: May a proposed conservatee's attorney, by making an unsworn statement to the court that the person did not wish to be present and did not object to the appointment of a conservator, waive the person's right to be present at the hearing on a conservatorship under the Lanterman-Petris-Short Act, although the report of the "officer providing conservatorship investigation" appointed by the county states that the person did not want a conservator?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 02/25/201048 Cal. 4th 131, 225 P.3d 554, 105 Cal. Rptr. 3d 424S157151Review - Civil Appealsubmitted/opinion due

Parties
1L., John (Overview party)
2San Diego County Health & Human Services Agency (Petitioner and Respondent)
Represented by William A. Johnson
Office of the San Diego County Counsel
1600 Pacific Highway, Room 355
San Diego, CA

3San Diego County Health & Human Services Agency (Petitioner and Respondent)
Represented by Leonard William Pollard
Office of the San Diego County Counsel
1600 Pacific Highway, Room 355
San Diego, CA

4L., John (Objector and Appellant)
Represented by Linda M. Fabian
Attorney at Law
3232 Fourth Avenue
San Diego, CA

5L., John (Objector and Appellant)
Represented by Appellate Defenders, Inc.
attn: Linda Fabian
555 W. Beech Street, Suite 300
San Diego, CA

6Association of Mental Health Patients' Rights Advocates (Amicus curiae)
Represented by Morton P. Cohen
Attorney at Law
536 Mission Street
San Francisco, CA

7California State Association of Counties (Amicus curiae)
Represented by Jennifer Bacon Henning
California State Association of Counties
1100 "K" Street, Suite 101
Sacramento, CA

8Protection & Advocacy, Inc. (Amicus curiae)
Represented by Ann E. Menasche
Protection & Advocacy, Inc.
1111 Sixth Avenue, Suite 200
San Diego, CA


Opinion Authors
OpinionJustice Marvin R. Baxter

Dockets
Oct 10 2007Petition for review filed
  John L., Appellant by Linda M. Fabian, counsel
Oct 12 2007Received Court of Appeal record
  One doghouse
Nov 28 2007Time extended to grant or deny review
  to and including January 8, 2008, or the date upon which review is either granted or denied.
Dec 12 2007Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jan 3 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Appellate Defenders, Inc., is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Jan 29 2008Request for extension of time filed
  counsel for aplt. requests extension of time to March 7, 2008, to file the brief on the merits.
Feb 4 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 7, 2008.
Mar 4 2008Request for extension of time filed
  Counsel for appellants requests extension of time to April 4, 2008, to file the opening brief on the merits.
Mar 18 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including April 7, 2008.
Apr 7 2008Opening brief on the merits filed
  counsel for aplt. (John L. )
Apr 23 2008Request for extension of time filed
  counsel for respondent requests extension of time to June 6, 2008, to file the answer brief on the merits.
Apr 28 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 6, 2008.
Jun 6 2008Answer brief on the merits filed
  counsel for San Diego Co. Hlth. and Human Services Agy.
Jun 6 2008Request for judicial notice filed (granted case)
  counsel for resp. San Diego Co. Hlth. and Human Services Agy.
Jun 17 2008Opposition filed
  counsel for petnr. John L.
Jun 25 2008Reply brief filed (case fully briefed)
  counsel for aplt. John L.
Jun 27 2008Filed:
  counsel for resp. Notice of Errata, Answer Brief page 16.
Jun 30 2008Request for judicial notice filed (granted case)
  counsel for aplt. John L.
Jul 7 2008Opposition filed
  counsel for resp. San Diego Co. Hlth and Human Services Agy. to Request for Jud. Ntc.
Jul 22 2008Received application to file Amicus Curiae Brief
  Association of Mental Health Patients' Rights Advocates in support of objector and appellant, by Morton P. Cohen, Counsel
Jul 23 2008Received application to file Amicus Curiae Brief
  Protection & Advocacy, Inc., in support of of objector and appellant, by Ann E. Menasche, Counsel
Jul 25 2008Received application to file Amicus Curiae Brief
  California State Association of Counties in support of respondent. by Jennifer B. Henning, counsel
Jul 25 2008Permission to file amicus curiae brief granted
  The application of Association of Mental Health Patients' Rights Advocates for permission to file an amicus curiae brief in support of objector and appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 25 2008Amicus curiae brief filed
  Association of Mental Health Patients' Rights Advocates, non-party, in support of the objector and appellant, by Morton P. Cohen, Counsel
Jul 28 2008Permission to file amicus curiae brief granted
  The application of Protection & Advocacy, Inc. for permission to file an amicus curiae brief in support of objector and appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 28 2008Amicus curiae brief filed
  Protection & Advocacy, Inc., non-party, in support of objector and appellant, by Anne E. Menasche, Counsel
Jul 28 2008Request for judicial notice filed (granted case)
  Protection & Advocacy, Inc., non-party, by Anne E. Menasche, Counsel
Jul 28 2008Permission to file amicus curiae brief granted
  The application of California State Association of Counties for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 28 2008Amicus curiae brief filed
  California State Association of Counties in support of Respondent. by Jennifer B. Henning, counsel Answer is due within twenty days.
Aug 14 2008Response to amicus curiae brief filed
  counsel for resp. San Diego Co. Hlth. and Human Svcs. Agy.
Aug 18 2008Response to amicus curiae brief filed
  counsel for resp. San Diego Co. Helath and Human Svcs. Agency
Sep 9 2009Compensation awarded counsel
  attorney Linda Fabian - Appellate Defenders, Inc.
Dec 2 2009Case ordered on calendar
  to be argued on January 7, 2010, at 1:30 p.m., in San Francisco.
Dec 8 2009Filed:
  Application to divide oral argument time filed by Linda M. Fabian, counsel for appellant John L., asking to share 10 minutes of time with amicus curiae California Mental Health patients' Rights Advocates.
Dec 8 2009Filed:
  Request to postpone argument past January 8, 2010, as counsel for amicus curiae is out of state until that date. Filed by Linda M. Fabian, counsel for appellant John L.
Dec 14 2009Request for judicial notice granted
  Respondent's request for judicial notice, filed on June 6, 2008, is granted. Appellant's request for judicial notice, filed on June 30, 2008, is granted. Amicus curiae Protection and Advocacy, Incorporated's request for judicial notice, filed on July 28, 2008, is granted.
Dec 14 2009Order filed
  The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae California Mental Health Patients' Rights Advocates 10 minutes of appellant's 30-minute allotted time for oral argument is granted. The request of appellant to reschedule oral argument is denied.
Dec 22 2009Supplemental brief filed
Objector and Appellant: L., JohnAttorney: Linda M. Fabian   w/ Request to file Supplemental Brief.
Jan 7 2010Cause argued and submitted
 
Feb 24 2010Notice of forthcoming opinion posted
  To be filed Thursday, February 25, 2010 at 10 a.m.

Briefs
Apr 7 2008Opening brief on the merits filed
 
Jun 6 2008Answer brief on the merits filed
 
Jun 25 2008Reply brief filed (case fully briefed)
 
Jul 25 2008Amicus curiae brief filed
 
Jul 28 2008Amicus curiae brief filed
 
Jul 28 2008Amicus curiae brief filed
 
Aug 14 2008Response to amicus curiae brief filed
 
Aug 18 2008Response to amicus curiae brief filed
 
Brief Downloads
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Protection and Advocacy Inc. Amicus Brief.pdf (120825 bytes) - Amicus Brief of Protection and Advocacy, Inc.
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 27, 2010
Annotated by jntonme

Facts:
John L. was taken to an emergency psychiatric unit on an involuntary basis. Based on his assessment of John L.’s condition, the doctor treating John L. made a formal recommendation that John L. be placed in conservatorship. The Public Conservator filed a petition to place him conservatorship pursuant to the Lanterman-Petris-Short Act (LPS Act). As part of the conservatorship proceedings, a court-assigned investigator spoke with John L., who stated he did not want a conservator. Later, however, he told his appointed counsel that he was not contesting the conservatorship. He also informed his attorney that he did not want to be present at the hearing. Counsel reported this to the court, which then ordered appointment of conservatorship. John then appealed on the grounds that his statutory (under the LPS Act) and due process rights were violated by ordering conservatorship in his absence without evidence that he waived his right to appear at the hearing.

Procedural Posture:
The California Court of Appeals concluded there were no statutory or due process violations and affirmed the lower court’s conservatorship order.

Opinion (J. Baxter):
The California Supreme Court affirmed the Court of Appeals' holding finding there were no violations of John’s rights under the LPS Act or the due process clause of the U.S. Constitution.

The court first noted that 1) it was undisputed that John told his attorney he neither wanted to contest the order or appear at the hearing and 2) the court ordered conservatorship only after his attorney’s representations of his consent and request to be absent.

The court then individually examined the alleged violations of the LPS Act and the due process clause. They found that the procedural rules governing the conservatorship hearing allowed for John's waiving his right to appear or contest through his attorney.

Conservatorship proceedings under the LPS Act are to occur in the manner set forth the Probate Code subject to certain exceptions. Under Probate Code, a conservatee can be excused from attending the proceeding while giving them their full effect by expressly informing the court-appointed investigator of their desire to be absent and their unwillingness to contest the proposed conservatorship. Although the LPS Act bars a representation of express consent via the investigator, the Supreme Court draws out the principle that a court can accept a representation by a third party that conservatee consents in their absence. An attorney can make such a representation and thereby bind the client to the court's order because of the laws of civil procedure, which govern both LPS Act and probate conservatorships.

The court reasoned that an express declaration to counsel to not contest the conservatorship can reasonably be a valid declaration before the court when given by counsel. The court also concluded there were minimal concerns about attorney misrepresentation of the client's desires—express or implied—regarding conservatorship .

The court then held that John L.'s due process rights were not violated and that the procedural safeguards in the LPS Act conservatorships had and continue to adequately protect such rights.

First, the court reasoned that the due process was adequate if it provided sufficient guard against erroneous conservatorship decisions. They found sufficient safeguards in the "several layers of important protections" built into the conservatorship process: a 17-day evaluation and treatment period, notice to the conservatee of the proceedings, and the conservatee's entitlement to counsel and the ability to contest conservatorship.

Second, the court noted that the availability of prompt remedial relief under the LPS Act—the patient's right to two petitions for rehearing on conservatorship annually and the requirement of a full reapplication for conservatorship every year—ensures that procedural errors will ordinarily be corrected. The court concluded that these remedies after establishment of conservatorship further accorded with John L.'s due process rights.

Third, the court rejected John's contention that criminal due process safeguards apply in conservatorship procedure because the liberty interests are equally fundamental. The court distinguished the design and purposes of conservatorship and criminal punishment, concluding these institutions were that there due process requirements were not comparable. Fourth, the court concluded that the due process value of compelling conservatee appearance before the court was too slight to justifying requiring it, which would also effectively strip the proposed conservatee's of his right to waive appearance.

Seeing no statutory or due process right violations, the Supreme Court affirmed the judgment of the Court of Appeals.

Concurrence (C.J. George; JJ. Kennard, Werdegar, Chin, Moreno, Corrigan).

Annotation by Jacques Ntonme

Tags: conservator, conservatorship, conservatee, commitment, LPS Act, due process, Lanterman-Petris-Short Act, investigator, investigation, express consent, psychiatric, mental illness, waive right to contest, health law

May 28, 2010
Annotated by cdbrown9

Facts and Procedural History:

The Lanterman-Petris-Short Act (LPS Act) grants superior courts the authority to establish a conservatorship of a person who is gravely disabled as a result of a mental disorder.
Appellant John L. was hospitalized in a behavioral health unit on an involuntary basis, where he was diagnosed as bipolar disorder, manic with psychotic features. He refused anti-psychotic medication until a court-appointed hearing officer determined he lacked the capacity to withhold consent. John’s doctor executed a declaration recommending conservatorship based on the belief that John was gravely disabled as a result a mental disorder. The doctor also executed a second declaration that he had informed John of his recommendation for conservatorship and that he had explained to John what a conservatorship was and his rights with respect to a conservatorship hearing.
The Public Conservator filed an Ex Parte Petition for Appointment of Temporary Conservator and Conservator of the Person. The superior court appointed the Public Conservator as temporary conservator and scheduled a hearing to determine conservatorship. The temporary conservator filed a Conservatorship Investigation Report summarizing John’s history of mental illness and recommending the establishment of a conservatorship. The report also made clear that John did not want a conservator to be appointed and did not think that he needed any assistance.
John was served with both a citation requiring John’s presence at the hearing and a copy of the temporary conservator’s report, but he did not attend the scheduled hearing. Instead, his appointed lawyer appeared on his behalf and reported to the court that John was no longer contesting the conservatorship and did not want to appear at the hearing. The court then excused John’s presence and appointed the Public Conservator as the conservator of the person of John.
John appealed the appointment, contending that the court violated his rights under the LPS Act and his constitutional rights to due process by appointing the conservator in his absence and without any admissible evidence of his waiving his right to appear. The Court of Appeals affirmed.

Issues:

Did the Superior Court’s appointment of a conservator violate (1) John L.’s statutory rights under the LPS Act or (2) his state and federal constitutional due process rights?

Analysis:

1) Statutory Rights Under the LPS Act
The court first construed the LPS Act to determine the statutory requirements with respect the presence of the proposed conservatee. Section §5350 of the LPS Act specifies that the procedure for appointing conservators will follow the procedure set forth in Division 4 of the California Probate Code. §1825 of the Probate Code provides that the proposed conservatee shall be produced at the conservatorship, but subdivision (a)(3) of that section provides an exception if the proposed conservatee expressly informs the court investigator that he is unwilling to attend and does not contest the conservatorship. Section 1826 of the Probate Code spells out the duties of court investigator in interviewing the proposed conservatee, including determining the conservatee’s desire to contest the conservatorship. Section §5350 of the LPS Act, however, expressly exempts the LPS procedure from the requirements of §1826. The court held that the Probate Code §1825(a)(3) procedure pertaining to a proposed conservatee’s production and attendance at the hearing must be followed in LPS cases, with the exception that the court-appointed investigator may not be used to convey the proposed conservatee’s desire not to appear.
The court further held that in light of the Code of Civil Procedure §283(1), “ a client who tells his appointed attorney he is unwilling to attend the hearing and does not wish to contest a proposed LPS conservatorship may reasonably expect his attorney to report such information to the court, with binding effect.” Finding no provision barring a proposed conservatee from relying on his counsel to convey his waiver of the right to appear, the court found that the superior court did not violate the LPS Act when it excused John’s production and proceeded with the hearing in his absence.

2) Constitutional Due Process Rights

John L. contended that due process safeguards apply to conservatorship proceedings because the possibility of involuntary civil commitment represents an interest as fundamental that those at stake in a criminal proceeding. The court applied a three-factor test for determining whether a particular procedure violates due process in a conservatorship, balancing the private interests at stake, the state or public interests, and the risk that the procedure or its absence will lead to erroneous decisions. While finding that significant liberty interests were at stake and that the public had substantial interest in protecting the mentally, the court found that the layers of protection built into LPS Act procedure provide sufficient guard against the risk of erroneous conservatorship decisions. “A superior court may properly find a waiver of presence and trial rights when informed by the attorney that the proposed conservatee does not want to attend the hearing to establish the LPS conservatorship and does not oppose the motion.” The superior court, therefore, did not deprive John L. of his due process rights by establishing the conservatorship of his person when he was not present.

Conclusion and Disposition:

“The superior court did not violate John’s statutory or due process rights when it proceeded, in John’s absence, with … the hearing on the petition to establish a conservatorship of his person.” The court affirmed the judgment of the Court of Appeals.

Statutory Resources:

Lanterman-Petris-Short Act:
General Provisions:
http://law.justia.com/california/codes/wic/5000-5120.html
Conservatorship of Gravely Disabled Persons:
http://law.justia.com/california/codes/wic/5350-5371.html

California Probate Code:
Conservatorships:
http://law.justia.com/california/codes/prob/1820-1835.html
California Code of Civil Procudure:
http://law.justia.com/california/codes/ccp/283-286.html

Authority:
Conservatorship of Moore:
http://scholar.google.com/scholar_case?case=8402504212946415110&q=%22con...
In re Conservatorship of Ben C.:
http://scholar.google.com/scholar_case?case=15138984743208274779&q=%22co...
Conservatorship of Maldonado:
http://scholar.google.com/scholar_case?case=3504824319191401912&q=%22con...
Conservatorship of Mary K.:
http://scholar.google.com/scholar_case?case=9400745848648896854&q=%22con...

Tags: Conservatorship, Lanterman-Petris-Short Act, mental illness, civil commitment, temporary conservator, conservator of the person, due process, attendance at conservatorship hearing, conservatorship investigation report

Annotated by Christina Brown-Marshall