LPS Conservatorship

  • The Lanterman-Petris-Short Act provides for a conservatorship of the person and/or estate for persons who are gravely disabled. W&I 5350 et seq.
  • Gravely Disabled means the person is unable to provide for his/her food, shelter and clothing because of a psychiatric disability W&I 5008(h)(1)(A)
  • The procedures for establishing, administering, and terminating are the same as under Probate Code 1400 et seq. Except where the LPS Act expressly provides otherwise. W&I 5350

The purpose of LPS Conservatorship is to provide individualized treatment, supervision, and placement services. W&I 5001(e)

Temporary Conservatorship (W&I) 5352
(T-Con)

Length

Notice

Petition

Counsel

Up to (30) days extended to (6) months if a jury trail requested

(W&I 5352.1)

Absent good cause, notice of t-con petition personally served to proposed conservatee delivered at least (5) days before appointment.

(Probate Code 2250)

T-con is alternatively plead in conservatorship petition.

(W&I 5352)

Attorney appt. required within (50 days of petition.

(W&I 5365) thus usually no attorney until after t-con established.

Hearing

Appointment

Powers

Duties

Within (30) days of conservatorship petition

(W&I 5352)

By application without the client being present

The conservatorship investigator or other county officer is temporary conservator

(W&I 5352)

T-conservator's powers as extensive as full conservators, including placement.

(W&I 5353)

Arranges for food shelter and care.

Individual Service Plan

ISP cont.

ISP cont.

 

Must be developed w/in (10) days of conservatorship; conservatee and family members must be encouraged to participate

Plan must set goals, criteria to access goals, and plan for review. Goals must be equivalent to reducing or eliminating behavioral

Manifestations of Grave Disability.

(W&I 5352.6)

 

This information provided by Michael Stortz, Protection & Advocacy, Inc.


Full Conservatorship (W&I 5350)

Length

Notice

Petition

Investigation

Up to (1) year, not including t-con

(W&I 5361)

Service of explanation of process and copy of conservator-ship petition to proposed conservatee at least (15) days prior to hearing

(Probate 1824)

Professional may recommend conservator-ship to county investigator in proposed conservatee's county of residence, investigator files petition

(W&I 5352)

Prescribed under W&I 5350(f).

Must investigate all available alternatives and recommend conservator-ship only if no suitable alternatives are available

(W&I 5354)

Investigation Report

Investigation Report Copy

Counsel

Hearing

Must be compre-hensive and address whether third party assistance could be provided; recommend powers and duties of conservator; legal disabilities and placement and proposed conservator.

(W&I 5356)

Must be sent to proposed conservatee prior to hearing.

(W&I 5354)

Attorney appointment required within (5) days of petition.

(W&I 5365)

Within 30 days of petition

(W&I 5365)

Propose Conservatee has right to attend

(Prob Code 1825)

Jury Trial

Legal Standards

Appointment. of Conservator

Appt. of Cons., cont.

Right to a jury trial on issue of GD.

(W&I 5350(d))

Such request must be within (5) days of initial hearing on petition. Trial must start within (10) days of demand unless postponement requested by counsel.

On issue of GD - proof "beyond a reasonable doubt"

Conservatorship of Roulet,152 Cal. Rptr. 425 (1979)

Governed by list of priorities

(Prob Code 1812)

unless investigator recommends otherwise.

(W&I 5350(b)(1))

Public guardian may serve if no one else available

(W&I 5354.5)

No person shall be appointed if she/he has conflict of interest w/ conservatee.

(W&I 5355)

Powers

Placement

Alternative Placement

Conservators of the estate have same general powers as under Probate Code, unless investigation recommends otherwise.

(W&I 5357)

Ct order must specify power to require treatment both related to grave disability and unrelated medical care otherwise further order needed.

Must be in the least restrictive setting available; preference for placement in person's own home or home of friend or relative; next is in suitable place as close as possible to own home or home of firend or relative; "suitable facility means the least restrictive residential placement available and necessary to achieve purpose of treatment

(W&I 5358)

Must be found by conservator within (7) days notice by facility that a conservatee no longer requires placement there; (30) days is allowed in unusual circumstances

(W&I 5359)

 

This information provided by Michael Stortz, Protection & Advocacy, Inc.


LPS Conservatorship

An LPS conservator may petition the court for reappointment of a succeeding one-year conservatorship. This petition must include the affidavits of two qualified psychiatrists or psychologists. A reappointment petition must be filed at least 30 days before the automatic termination date. The clerk of the Superior court must notify the conservator, conservatee and facility staff at least 60 days before the termination of the one year period (W&I 5362)

Appeal Rights

Challenge Powers and Placement

Rehearing on Status as Conservatee

Writ of Habeas Corpus

Hearing and Counsel

At any time a conservatee or his/her designee may petition the court to challenge the right denied conservatee under W&I 5357 or the power granted the conservator under 5358, including placement; after filing such petition, the conservatee must wait (6) months to file another. This does not affect right to request rehearing on issue of grave disability under Section 5364.

(W&I 5358.3)

At any time a conservatee may petition court for rehearing on status as conservatee; after filing such petition, must wait (6) months to file another.

(W&I 5364)

Any LPS conservatee or friend or relative may file writ of habeas corpus to challenge illegal confinement or conditions.

(W&I 7250)

All petitions must be heard within 30 days and counsel appointed within (5) days

(W&I 6365)

This information provided by Michael Stortz, Protection & Advocacy, Inc.