LPS CONSERVATORSHIPDaniel A. Pone, Senior
Attorney The provisions governing
the establishment of conservatorships under the Lanterman-Petris-Short Act
(LPS) are found at Welfare and Institutions Code (WIC) sections 5350 and
following. A conservator of the
person, of the estate, or of the person and estate may be appointed for any
person who is gravely disabled as a result of mental disorder or impairment
by chronic alcoholism. WIC §5350. "Gravely disabled" means that the
person is, as a result of a mental disorder or, as a result of impairment by
chronic alcoholism, unable to provide for their basic personal needs for
food, clothing or shelter. WIC
§5008(h)(1)(A),(2). The term
"gravely disabled" does not include mentally retarded persons by
reason of being mentally retarded alone.
WIC § 508(h)(3). In order to be
placed on an LPS conservatorship, the person must be found by a court or jury
to be gravely disabled beyond a reasonable doubt. Conservatorship of Roulet (1979) 23
Cal.3d 219. PURPOSE OF CONSERVATORSHIPThe purpose of
conservatorship is "to provide individualized treatment, supervision,
and placement." WIC §5350.1 The general role of conservators is
addressed in the regulations which govern Continuing Care Services. Title 9, POWERS AND DUTIES OF CONSERVATORSConservatorship
proceedings may be initiated for any person committed to a state hospital or
local mental health facility or placed on outpatient treatment upon the
recommendation of the professional person in charge of the facility or
his/her designee to the conservatorship investigator of the county of
residence of the person. WIC
§5354 .If the conservatorship
investigation results in a recommendation for conservatorship, the
recommendation shall designate the most suitable person to serve as
conservator. WIC §5355. The public guardian shall serve as
conservator of any person found by a court to be gravely disabled and in need
of conservatorship only if the court finds no other person or entity
willing and able to serve as conservator.
WIC §§5354.5, 5356; see also Conservatorship of Prior to the court
hearing, the conservatorship investigator conducts an investigation and
submits a report to the court which contains recommendations concerning
"the powers to be granted to, and the duties to be imposed upon the
conservator, the legal disabilities to be imposed upon the conservatee, and
the proper placement for the conservatee... ." WIC §5356.
The conservator has all the general powers that are set out in Probate
Code sections 2400-2586 (powers of conservator of the estate), and any of the
additional powers specified in Probate Code section 2591 as the court may
designate. WIC §§5357, 5360. The powers referred to in Probate Code
section 2591 all concern the conservatee's estate, and will not be discussed
herein. The powers and duties of
conservators which relate to placement and treatment of conservatees are
detailed below. Placement of ConservateesOnce a conservatorship is
established, the court-appointed conservator is required to place the
conservatee "in the least restrictive alternative placement, as
designated by the court." WIC
§5358(a). "If the conservatee is
not to be placed in his or her own home or the home of a relative, first
priority shall be given to placement in a suitable facility as close as
possible to his or her home or the home of a relative." WIC §5358(c). The court's order must also indicate
"those persons to be notified of a change of placement." Changes in a conservatee's
court-ordered placement are governed by Welfare and Institutions Code section
5358(d), which provides as follows: The conservator may
transfer his or her conservatee to a less restrictive alternative placement
without a further hearing and court approval.
In any case in which a conservator has reasonable cause to
believe that his or her conservatee is in need of immediate more restrictive
placement because the condition of the conservatee has so changed that the
conservatee poses an immediate and substantial danger to himself or herself
or others, the conservator shall have the right to place his or her
conservatee in a more restrictive facility or hospital. Notwithstanding Section 5328, if the change
of placement is to a placement more restrictive than the court determined
placement, the conservator shall provide written notice of the change
of placement and the reason therefor to the court, the conservatee's
attorney, the county patients' rights advocate and any other persons
designated by the court pursuant to subdivision (c). (Emphasis added.) Thus, Section 5358(d)
makes it clear that the conservator is the only party authorized by the court
to make changes in the conservatee's placement. If the conservator is notified by the
person in charge of the facility serving the conservatee that the conservatee
no longer needs the care or treatment offered by that facility, then the
conservator is responsible for finding an alternative placement within seven
(7) days. WIC §5359. Extensions of up to 30 days or more may be
possible in unusual circumstances. Consent to TreatmentIn addition to setting
forth recommendations regarding the powers and duties of the conservator, the
investigator's report must also recommend for or against the imposition of a
number of specific disabilities on the proposed conservatee, including: (d) The right to refuse or
consent to treatment related specifically to the conservatee's being gravely
disabled. The conservatee shall retain
all rights specified in Section 5325. (e) The right to refuse or
consent to routine medical treatment unrelated to remedying or preventing the
recurrence of the conservatee's being gravely disabled. The court shall make a specific
determination regarding imposition of this disability. WIC §5357(d),(e). With respect to the
conservator's rights to consent to the conservatee's receiving treatment, WIC
Code section 5358(b) provides as follows: A conservator shall also
have the right, if specified in the court order, to require his or her
conservatee to receive treatment related specifically to remedying or
preventing the recurrence of the conservatee's being gravely disabled, or to
require his or her conservatee to receive routine medical treatment unrelated
to remedying or preventing the recurrence of the conservatee's being gravely
disabled. Except in emergency cases in
which the conservatee faces loss of life or serious bodily injury, no surgery
shall be performed upon the conservatee without the conservatee's prior
consent or a court order obtained pursuant to Section 5358.2, specifically
authorizing that surgery. Section 5358.2 provides: If a conservatee requires
medical treatment and the conservator has not been specifically authorized by
the court to require the conservatee to receive medical treatment the
conservator shall, after notice to the conservatee, obtain a court order for
that medical treatment, except in emergency cases in which the conservatee
faces loss of life or serious bodily injury.
The conservatee, if he or she chooses to contest the request for a
court order, may petition the court for hearing which shall be held prior to
granting the order. In this regard, the
California Attorney General has issued an opinion which indicates that the
specific procedures set forth in Sections 5357, 5358, and 5358.2 constitute
the exclusive means by which the conservator is given the power to make
necessary medical decisions for LPS conservatees. 60 Ops.Atty.Gen. 375 (1975) Moreover, the California Court of Appeal
for the First Appellate District has held that where a conservator is
uncertain whether his existing authorization from the court applies to a
particular proposed medical treatment, he should resolve his doubts in favor
of making further application to the court.
Foy v. Greenblott (1983) 141 Cal.App.3d 1. 07/15/96 |