An Overview of Mental Health Conservatorship Cases You can Bring

This handbook will help a person who is on a permanent (year-long) conservatorship. The various court challenges that we review in this handbook are:

Rehearing on conservatorship

To challenge the necessity of being on a conservatorship.

*You should try to challenge the conservatorship through rehearing before you file the writ of habeas corpus. (See Attachment A.)

Writs of habeas corpus

To challenge either:

1. Being on a conservatorship
2. Conditions of confinement on a conservatorship, including denial of patients' rights (See Attachment B).

Placement review hearing

To challenge your placement if you think you could be in a less restrictive placement. (See Attachment C.)

Specific rights

To challenge the loss as a condition of an LPS conservatorship such as the right to vote or have a driver’s license.

Frequently Asked Questions on Challenging a Mental Health Conservatorship and Filing Writs of Habeas Corpus

What is the legal standard to be placed on a conservatorship?

The legal standard is “grave disability.” There are two definitions for grave disability. Grave disability can mean that you are not able to provide for your own food, clothing, and shelter due to a mental disorder. Cal. Welf. Inst. Code § 5008(h)(1(A).

Grave disability can also mean that a person has been mentally incompetent under Section 1370 of the California Penal Code and all of the following facts exist:

1. The indictment or information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another.
2. The indictment or information has not been dismissed.
3. As a result of a mental disorder, the person is unable to understand the nature and purpose of the proceeding taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner.
4. The person represents a substantial danger of physical harm to others by reason of mental disease, defect, or disorder.

Cal. Welf. & Inst. Code § 5008(h)(1)(B). A conservatorship under this section is sometimes called a “Murphy” conservatorship.

I'm in. a locked facility. I was placed on a permanent conservatorship two weeks ago. How can I get off the conservatorship?

You can petition (ask) the court for a rehearing to see whether you should be on a conservatorship. If you ask, you are entitled to a rehearing as to whether you should be on a conservatorship at all. After filing of the first petition for hearing, no further petition for rehearing can be submitted for a period of six months. Cal. Welf. & Inst. Code § 5364.

You do not have the right to a jury trial at the rehearing. Baber v. Superior Court, 113 Cal.App.3rd 955, 960 (4th Dist. Ct. App. 1980). At a rehearing, you have the burden of proving that you are not “gravely disabled.” Id. at 965.

At your rehearing, you should be prepared to tell the judge reasons why you are not “gravely disabled.” To show the judge that you are not “gravely disabled,” develop a detailed plan to show how you would provide for your food, clothing and shelter, or why you are competent. The more detail you can provide, the better. Address the “who,” “what,” “where,” “when,” and “how.” See blank “Plan of Action to Show that I am not “Gravely Disabled.” (See Attachment F.)

If there is someone who can provide for your food, clothing, or shelter, have that person write the conservator, judge, and attorney of their willingness. This is called “third-party assistance” and can be used to challenge conservatorship. You should be prepared to tell the judge what kind of mental health and/or medical treatment you would get and where you would go to get it.

If you plan to receive Social Security or other benefits, you should explain to the judge that you know how to sign up for and receive those benefits.

The easiest way to request a rehearing is to contact the lawyer who represented you when you were placed on the conservatorship. Tell the lawyer that you would like to petition the court for a rehearing. (See Attachment A.)

I am on a Murphy conservatorship. Do I have to do anything differently to get off the conservatorship?

If you are on a Murphy Conservatorship, it is important to show that you are not likely to be dangerous if you get off of the conservatorship. If there have been any incidents of violence in the past, be prepared to show how things have changed.

You may also want to get a mental health professional or expert to give an opinion. This person can say whether they think you can live safely in the community. They can also discuss whether you remain incompetent.

I don't remember who represented me at the conservatorship hearing. How can I get a lawyer to represent me at the rehearing?

If you did not pay for a lawyer to represent you at the conservatorship hearing, you were probably represented by a court-appointed lawyer. Most court-appointed lawyers are from the Public Defender’s Office. You can look up the phone number in the local phone book under “county government.” You can ask your patients’ rights advocate to help you contact your public defender.

I’ve been given the phone number to my public defender whom I’m having a difficult time contacting. What should I do?

When you call the public defender’s office, you should ask the person who answers the phone when the best time to reach your attorney would be. Many public defenders are in court for much of the day instead of being in their office. You can also ask to leave a message on your attorney’s voicemail. When you leave a message, be sure to leave your name, date of birth, phone number, the best time to reach you, and why you called. Make sure you write down when you left the message for your attorney for your own records. Write your attorney if you are having problems with communication, and keep a copy of the letter(s) as a follow-up to a phone call or message. You can also ask to speak to that attorney’s supervisor.

I lost my conservatorship rehearing. When can I have another hearing on this issue?

After filing the first petition for rehearing, you must wait for six months before filing another petition for rehearing. Cal. Welf. & Inst. Code § 5364. You can also wait until this conservatorship expires. A permanent conservatorship is only good for one year before your conservator would have to go to court.

I lost at the rehearing and still believe I should not be conserved because I do not believe that I am "gravely disabled." What can I do?

You can file a petition for writ of habeas corpus. A petition for writ of habeas corpus is a way to ask the court to decide whether your confinement is lawful. The writ of habeas corpus should be filed in the Superior Court of the county in which you are placed or the county where the conservatorship case is located. You may want to file where the case file is located because the judge who ordered conservatorship might remember your case better. At the back of this material is a list of Superior Courts. (See Attachment G.)

*You should try to challenge the conservatorship through the rehearing process before you file the writ of habeas corpus.

I sent away my petition for writ of habeas corpus about two weeks ago but still haven’t heard anything. Is there a deadline by which the court should respond?

If your petition for writ of habeas corpus is about whether you are gravely disabled, within 30 days after the petition is filed or received on a transfer from another county, the court can do three things with the writ:

1. "Issue the writ" which means you win what you complained about;***
2. Issue an "order to show cause," which means the court wants to hear from the other side why the relief asked for shouldn't be given. The other side (usually County Counsel) then has to file a "return" to an "order to show cause." You then have the right to file a "denial to the return." Within 30 days after the filing of any denial (or after the expiration of the time for filing a denial), the court shall either grant or deny the relief sought or order an evidentiary hearing;
3. Deny the writ.

If the court makes an order denying your writ, it should explain in writing why it denied your writ.

I’ve been on a conservatorship for almost a year. I don’t think I need to be on one anymore. What should I do?

If you haven’t done so already, you can ask for a rehearing or file a writ of habeas corpus. Remember you should try to file for a rehearing before filing a writ of habeas corpus. If it’s been almost a year since you’ve been on the conservatorship, you can wait and see if your conservator will try and renew your conservatorship. The conservator must let you know if he or she plans on renewing your conservatorship. Conservatorships are for one-year periods. Every year, the conservator must seek a renewal of your conservatorship. This is called a "reestablishment hearing." If your conservator will be seeking a reestablishment, you can choose to oppose (fight) the reestablishment. It is a good idea to insist that you want to go to court. And again, prepare to tell the judge how you would be able to provide for your food, clothing, and shelter. You can send is a letter to the court. See Attachment E.

I don’t want to fight the conservatorship itself but I don’t need to be in a locked facility. I think I’m ready to live in either a Board and Care or some other type of unlocked place. What can I do?

Tell your conservator that you would like a change in placement and state why. Tell the conservator how well you have been doing at the facility. If there are positive reports by staff, tell the conservator. Your conservator can work with your social worker and treatment team to create a plan to move you back into the community.

Your conservator can place you in a less restrictive placement without the court’s permission, unless you are on a conservatorship because you were found Incompetent to Stand Trial.

My conservator is a public guardian whom I don’t know the name of or how to contact.

Begin by looking in the phone book under "public guardian." Often, it's listed in the government pages. You can ask your social worker for the name and number of your public guardian. You can also see if your lawyer can help you locate your public guardian. Call the county patients' rights advocates for the name and number.

I’m ready to move somewhere other than a locked facility, but my public guardian never returns my phone calls and whom I can't contact. Is there anything else I can do?

You can petition (ask) the court for a "placement review hearing." Cal. Welf. & Inst. Code § 5358.3. Again, the best way to have the placement review hearing is to ask your lawyer to have the court schedule it for your case.

I wasn’t able to get the judge to order me to a less restrictive facility. Can I petition the court again?

If you lose the hearing asking for a less restrictive placement, you must wait another six months before submitting another petition (asking for another hearing). Cal. Welf. & Inst. Code § 5358.3.

You can also file a writ of habeas corpus where the conservatorship was established or in the county where you are confined (i.e., the county where the facility is located). Cal. Welf. & Inst. Code § 5358.7.

I’m in a locked facility where my rights are being violated: I’m not allowed to make phone calls or have visitors, and the staff have restrained me for talking back. What can I do?

You should notify your attorney and ask the attorney to bring the situation to the attention of the judge. You should also contact the patients’ rights office for your county and tell them you want to make a complaint. For some harmful acts, a complaint can be filed with licensing. The patients' rights advocate has the contact information for licensing. Also, for phone numbers to contact licensing, the California Office of Patients' Rights can be called at 916-575-1610. You can also file a writ of habeas corpus in either the county. (See Attachment B.)

Sample Petitions and Examples of How to Prepare and File a Petition for a Writ of Habeas Corpus

Writ of Habeas Corpus

Uses for persons on permanent mental health conservatorships:

A Writ of Habeas Corpus is a petition that you can file if you are on a mental health conservatorship and:

1. You believe that you are being confined unlawfully; or
2. You believe that your rights have been violated in the facility.

When can a writ of habeas corpus be filed?

1. Whenever you believe your rights have been violated without good cause;
2. Whenever you believe you have been held unlawfully and other rehearings, i.e., conservatorship rehearings and placement hearings have been exhausted.

How do you show that you are being confined unlawfully?

1. You must show that you are not gravely disabled due to a mental disorder.
2. Gravely disabled means that you are unable to provide your own food, clothing, and shelter.
3. You must show specifically how you will live outside the facility.

How do you show that your rights have been violated?

1. You must list specifically when a right has been violated;
2. List each violation separately.

Will you get legal assistance?

1. When the court issues the writ, a public defender can be assigned to help you before the hearing.

Preparing the Form Petition

General Instructions

1. Read the entire form as well as these instructions before answering any questions.
2. Fill out the form as clearly as possible in ink or by typing your answers. Take your time when filling out the form. It might be a good idea to practice on a blank sheet of paper first.
3. If you don’t have enough space to answer the questions, finish your answer(s) on (an) additional page(s) and attach them to the back of the page. Write on the petition that your answer is "continued on additional page(s)."
4. Attach copies of any documents which support your claim or which are necessary to understand your claim.& For example, if you were put in restraints, you might wish to include copies of any complaints you’ve filed or copies from your medical chart.
5. Make sure that all of the statements you make are true to the best of your knowledge.

Instructions for Filling out Petition for Writ

To help you, a blank petition can be found online at the following link:

Click here for the website

A copy of the sample petition is also attached. (See Attachment B.)

1. Boxes at the Top of the Petition Form
   • In the box that says "ATTORNEY OR PETITIONER WITHOUT AN ATTORNEY," fill in your name with the words "In Pro Per" after it, the facility name and address, and the phone number with area code at which you can receive calls. For example, if you are a patient at Metropolitan State Hospital, you would fill out this first box as follows:
     • (Your name), In Pro Per
       c/o Metropolitan State Hospital
       11401 S. Bloomfield Ave.
       Norwalk, CA 90650
   • Remember to include your phone number with area code and date of birth where indicated.
2. In the box that says "SUPERIOR COURT OF CALIFORNIA, COUNTY OF:" write the name of the county where you are presently confined. For example, Napa State Hospital is in Napa County.
3. Below the phrase "IN THE MATTER OF (NAME):" write your full name and write In Pro Per.
4. Leave the box that asks for your case number blank. The court will assign you a case number after your petition is filed.

Numbered Questions/Statements

1. Write the name of the hospital in which you are being held and, if you know, the name of your treating psychiatrist.
2. Write the date of your admission next to the phrase "(date)" on the first line of this section. Then, check the box that states your legal status.
3. If you are challenging your confinement:
   • Check box "a" and list the reasons you believe your confinement to be illegal.& Use extra sheets if you need to.
   • For example, if you are being held on the basis of "grave disability" and you believe that you now have the ability to provide for your food, clothing and shelter needs, write that you are now able to provide for these things. Also provide any information you have to show how you would meet your needs, including the assistance of other individuals or agencies. See Attachment F.
4. If you are challenging the CONDITIONS of your confinement or your level of placement:
   • Check box "b" and clearly describe the rights that are being denied you while you are confined, and the date(s) on which the violation(s) occurred. You can challenge the denial of any right which you are entitled to under state or federal law (including the constitution, court cases, statutes and administrative regulations) or under the policies of the facility in which you are being held. These might include such rights as the right to keep and use your possessions, the right to have visitors, the right to make phone calls and send and receive mail, the right not to be secluded or restrained inappropriately or excessively, the right not to be involuntarily medicated on a non-emergency basis, etc. Cal. Welf. & Inst. Code § 5325. As noted above, it will be helpful (but is not necessary) for you to refer in your petition to the statute number, policy number, case citation, etc., guaranteeing the right(s).
   • Usually, you can only protest when rights are currently being denied or when you have evidence you will be denied your rights in the foreseeable future (such as if you are told that you are going to be transferred to a more restrictive unit/facility).
   • If you have been denied a right in the past and feel that you are at risk of being denied that right again for similar reasons, you may claim this as a right that has been violated. For example, if you were put in restraints for refusing medication, and the staff still claims that it has the right to do so, you could claim this as a violation of your rights because you might be put in restraints again for the same reasons in the future.
5. Check boxes, a, b, c, and d. If you cannot afford an attorney to represent you in the habeas proceeding, next to or below box "d," you should write "including appointment of counsel to represent me in this action, as I cannot afford an attorney."

Verification and Signature

Write the current date where indicated. Print or type your name on the line in the bottom, left corner. Sign your name on the line in the bottom, right corner.

Filing the Petition

Mail the originals and two (2) copies of the petition and any supporting documents (including any request for appointment of counsel) to the Superior Court for the county in which you are being held. For example, if you are being held in Napa State Hospital, the address is:

• Napa County Superior Court
  825 Brown St.
  P.O. Box 880
  Napa, CA 94559-0880

Additional Information in this Packet

A list of the California Superior Courts is included to help you locate the proper court in which to file the writ. (See Attachment G.)

How to Get a Rehearing on Your Conservatorship

If you want to get off of your conservatorship, you have the right to have a rehearing. You can ask for a rehearing right away, but once you have one, you must wait another six months before having another one. Cal. Welf. & Inst. Code 5364.

The best way to get a rehearing is to contact your attorney. If you were placed on a mental health conservatorship, you were represented by an attorney. If you did not have money to pay for an attorney, you were probably represented by a court-appointed attorney. Most court-appointed attorneys are public defenders.

Your social worker should have the name and phone number of your court-appointed attorney.You can also call the patients’ right advocate to find out how to contact your attorney. When you call your attorney, give your full name and date of birth. If your attorney is not in the office, ask if you can leave a message. Be sure to leave your name, date of birth, facility where you’re at, phone number where you can be reached, best time to reach you, and the message that you are "requesting a rehearing on your conservatorship." You can also write a letter to your attorney with this information.

If your attorney does not get back to you, you can file your own petition to the court requesting a rehearing on conservatorship. You should give your attorney at least two weeks to try to contact you before filing your own petition.

Instructions for Filing Petition for Rehearing on Conservatorship

1. Fill out all the information on the form. (See Attachment A.)
2. If possible, send the court two copies, with a self-addressed stamped envelope and a note to return one of the conformed copies to you. A conformed copy is a court-stamped document that shows the document was received and will include the date
3. Send the petition to the Superior Court of the county that placed you on the conservatorship. Attached is a list of Superior Court addresses. See Attachment G.

How to Appeal Being Placed On an LPS Conservatorship

If you had a jury trial or court trial (also known as a bench trial) and were found to be gravely disabled, and therefore you needed to be on an LPS conservatorship, you have a right to file an appeal.

You must file a notice of appeal within sixty (60) days of the establishment of the conservatorship. You can contact the attorney and ask that a notice of appeal be filed for you. You can also file the attached notice of appeal with the Superior Court of the county that established the conservatorship.(See Attachment D.)

If you can’t afford to hire an attorney, you are entitled to a free, court-appointed attorney.& If you don’t have money, you are also entitled to waiver of all costs on appeal.

How to Challenge Your Placement When You and Your Conservator Disagree

Placement Review Hearing

When you are on a mental health conservatorship, your conservator has the power to decide where you will live. That does not mean that you are completely at the "mercy" of your conservator. If you believe that you can appropriately live in a less restrictive setting than where your conservator placed you, you can go back to court to challenge the appropriateness of your placement. This is called having a “placement review hearing.” However, once you go back to court for a placement review hearing, you must wait another six months before having another one. Cal. Welf. & Inst. Code § 5358.3.

You can request a placement review hearing, by a writ of habeas corpus, in the county where the conservatorship was established or the county where you are currently living. Cal. Welf. & Inst. Code § 5358.7.

Even though you have a placement review hearing, you can also still ask the judge for a conservatorship rehearing. At a placement review hearing, you are only asking the judge to review the appropriateness of your placement, not whether you should be on a conservatorship. At a conservatorship rehearing, you are asking the judge to consider whether you need to be on a conservatorship at all.

The best way to get a placement review hearing is to contact your attorney. If you were placed on a mental health conservatorship, you were represented by an attorney. If you did not have money to pay for an attorney, you were probably represented by a court-appointed attorney. Most court-appointed attorneys are public defenders.

Your social worker should have the name and phone number of your court-appointed attorney. You can also call the patients’ right advocate to find out how to contact your attorney. When you call your attorney, give your full name and date of birth. If your attorney is not in the office, ask if you can leave a message. Be sure to leave your name, date of birth, facility where you’re at, phone number where you can be reached, best time to reach you, and the message that you are "requesting a placement review hearing." You can also write a letter to your attorney with this information.

If your attorney does not get back to you, you can file your own petition to the court requesting a placement review hearing. You should give your attorney at least two weeks to try to contact you.

Instructions for Filing Petition for Placement Review

1. Fill out all the information on the form. (See Attachment C.)
2. If possible, send the court two copies, with a self-addressed stamped envelope and a note to return one of the conformed copies to you.
3. Send the petition to the Superior Court of the county that placed you on the conservatorship. Attached is a list of Superior Court addresses. (See Attachment G.)

How to Write a Declaration

A declaration is your statement, under oath, about things for which you have personal knowledge—things that you know about, on your own. For example, you cannot declare something that others have told you. You can only declare things that you know of, heard, or saw personally.

When you write a declaration, you are trying to give the judge as much specific information as you can, as clearly and simply as you can. Your declaration should answer the questions: Who? What? Where? When? Why? & How?

If you are filing a petition for writ of habeas corpus because you are in a locked facility and don’t believe you need to be in one, your declaration should give the judge information about:

• Where you are;
• Why you don’t need to be there;
• What specific plans you have if you were to be released.

(See Attachment F.)

In other words, you should explain to the judge what exactly you would do if you got out of the locked facility.

1. At the beginning of your declaration, you should use this opening sentence: "I, (your name), declare as follows:"
2. Next, list all the facts and information in brief paragraphs. Number each paragraph. A paragraph should not be longer than two or three sentences.
3. Finally, the last two sentences should be: "I declare under penalty of perjury that the foregoing is true and correct."
4. And then: "Executed on (give the date that you are signing your declaration) at (write the city and state where you signed your declaration)." Be sure to write and sign your name at the bottom of the page[Sample]

Declaration of Ezra Pound

I, Ezra Pound, declare as follows:

1. I have been living at Cherry Heights IMD since February 1, 2000. I am on an LPS conservatorship.
2. I lost the rehearing on my conservatorship on March 30, 2000.
3. I do not need to be at Cherry Heights IMD because it is more restrictive than necessary, and I have a good plan to provide for my own food, clothing and shelter.
4. Because of my disability, I am eligible for Social Security benefits. I received Social Security benefits in the past and I know how and where to apply for them again. I would submit my application for Social Security benefits at the office on 3030 Broadway Avenue in Los Angeles.
5. I have found a room I could I rent. On July 12, 2000, I spoke to Bill Jones, the manager at 2375 Maplewood Lane in Los Angeles. Bill said he could rent me a room. He said he would keep the room open for a month.
6. I have friends who can help me. Their names are Alejandro and Kathy Galeano. The Galeanos have said I could stay with them if I needed to. They are willing to come to court to testify on my behalf.
7. I know how to buy food and make meals for myself.
8. I have my own clothing: two pairs of pants, underclothing and three shirts. I know where to buy second-hand clothes.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on July 20, 2000 at Los Angeles, California.

______________________________
Ezra Pound

How Often Can a Writ be Filed

You can file for a writ often; however, each filing should have sufficient statements different from a writ that has been denied.

How to Challenge the Loss of Specific Rights

Challenging the Loss of Specific Rights as a Condition of a Mental Health Conservatorship

Just because you are on a conservatorship does not mean the judge will automatically take away all of your rights. The judge must specifically limit your right to vote, have a driver’s license, enter into contracts, possess a firearm, refuse to consent to routine medical treatment, and refuse to consent to treatment related to being gravely disabled. Cal. Welf. & Inst. Code § 5357. If you want the judge to reconsider the fact that he or she took away some of your rights, you can petition (ask) the judge to again look at whether you should still have those rights taken away.

The best way to get a hearing to contest the loss of specific rights is to contact your attorney. If you were placed on a mental health conservatorship, you were represented by an attorney. If you did not have money to pay for an attorney, you were probably represented by a court-appointed attorney. Most court-appointed attorneys are public defenders.

Your social worker should have the name and phone number of your court-appointed attorney. You can also call the patients’ right advocate to find out how to contact your attorney. When you call your attorney, give your full name and date of birth. If your attorney is not in the office, ask if you can leave a message. Be sure to leave your name, date of birth, facility where you’re at, phone number where you can be reached, best time to reach you, and the message that you are "requesting a hearing to contest rights taken away." You can also write a letter to your attorney with this information.

If your attorney refuses to contact you, you can file your own petition to the court requesting a hearing to contest rights taken away. You should give your attorney at least two weeks to try to contact you.

Instructions for Filing Petition to Contest Rights Denied Conservatee

1. Fill out all the information on the form. (See Attachment B.)
2. If possible, send the court two copies, with a self-addressed stamped envelope and a note to return one of the conformed copies to you. Send the petition to the Superior Court of the county that placed you on the conservatorship. Attached is a list of Superior Court addresses. (See Attachment G.)