ADVANCE NOTICE FOR INDIVIDUALS SUBJECT TO TEMPORARY LPS CONSERVATORSHIP DENIAL OF STATUTORY & CONSTITUTIONAL RIGHTS

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1 ADVANCE NOTICE FOR INDIVIDUALS SUBJECT TO TEMPORARY LPS CONSERVATORSHIP DENIAL OF STATUTORY & CONSTITUTIONAL RIGHTS Michael Stortz, Esq. Disability Rights California San Diego Regional Office 1111 Sixth Avenue, Suite 200 San Diego, CA March 2011

2 TABLE OF CONTENTS ACKNOWLEDGEMENTS... 1 SUMMARY... 2 FINDINGS... 6 Finding 1 Great Disparities Exist Across California Counties in Meeting the Advance Notice Provisions... 6 Finding 2 Great Disparities Exist Across California Counties in Process for Providing the 5-Day Advance Notice... 8 a. Ex Parte Establishment of Temporary Conservatorship... 8 b. Disparities in Notice Provision Across the Counties... 9 Finding 3 Notice Content Varies Greatly Across Counties a. Notice about the Legal Basis and Standards b. Notice Identifying the Proposed Conservator c. Notice about the Purpose of LPS Conservatorship d. Notice about Potential Placement e. Notice about the Potential Legal Disabilities Imposed f. Notice on the Right to Oppose the Proceeding i. Provision of objection form ii. Treatment team meetings g. Notice on the Right to Attend the Hearing h. Notice on the Right to Jury Trial i. Notice on the Right to Seek Private Attorney j. Notice on the Right to Court Appointed Counsel RECOMMENDATIONS APPENDIX 1 SAMPLE APPENDIX 2 CHART OF DOCUMENTS RECEIVED... 27

3 ACKNOWLEDGEMENTS Thank you to the county staff who provided information pursuant to California Public Records Act requests and to the overwhelming majority of counties that agreed to waive copy costs. Thanks also to Katti Trinh, a summer Law Clerk who initiated the requests and organized initial responses, to Katherine Philbin, a Legal Secretary who assisted in the production of this report, to Rachel Scherer, a Staff Attorney, for her editorial assistance, and to mental health community stakeholders including clients, advocates and public defenders who have expressed concerns relative to those raised here. 1

4 SUMMARY This report reviews county public guardian compliance with statutory and constitutional requirements for advance notice to individuals detained in psychiatric treatment facilities before obtaining Lanterman-Petris-Short (LPS) Act 1 temporary conservatorship to allow an additional 30 days of treatment. The Welfare and Institutions Code does not expressly describe the requirements for notice to a prospective LPS conservatee. In Edward W. v. Lamkins, the California Appellate Court applied the advance notice provision under the Probate Code to proposed temporary LPS conservatorships noting that with specified exceptions, the procedure for establishing conservatorship under the Welfare and Institutions Code is the same as that provided in Division 4 of the Probate Code. (Edward W. v. Lamkins (2002) 122 Cal.Rptr.2d 1, 9, citing Welf. & Inst. Code section 5350). The applicable Probate Code provision states: [u]nless the court for good cause otherwise orders, not less then five days before the appointment of the temporary conservator, notice of the proposed appointment shall be personally delivered to the proposed conservatee. (Probate Code section (c) (formerly Probate Code section 2250(c))). In nearly every case where a county asserted good cause, the court reportedly found good cause for not providing 5-day advance notice when asserted by the county. However, this does not offer a shield to County Public Guardian/Conservator offices concerning fulfillment of their statutory and constitutional duties. Good cause for shortening or dispensing with statutorily prescribed notice requires an individualized showing of exigent circumstances such that notice cannot be provided in a given case. (Edward W. 122 Cal.Rptr.2d at 23). 1 California Welfare and Institutions Code sections 5000 et seq. 2

5 Pursuant to California Public Records Act requests to each of the 58 county Public Guardians/Conservators offices in California, Disability Rights California obtained and reviewed responses from 57 of the 58 counties 2 requests included: (1) written policies and procedures on provision of advance notice to individuals subject to temporary LPS conservatorship; (2) the number of temporary LPS conservatorship petitions filed in 2009; (3) the number of such petitions wherein the county asserted good cause for not providing 5-day advance notice; and (4) the number of petitions where the court granted these county requests. 3 Details regarding the specific responses or lack of responses received from each of the counties can be found in the endnotes to the chart in Appendix 2. The information received from the counties raises serious concerns over the statutory and constitutional rights of individuals subject to temporary LPS conservatorship. We found that at least 25% and perhaps 50% of temporary LPS conservatees in 2009 did not receive 5-day advance notice of the proposed conservatorship. Four counties asserted good cause for not providing the required 5- day advance notice in every 2009 petition. Such counties appear routinely to submit blanket statements of reasons, thereby violating the affected individuals constitutional as well as statutory rights. A blanket statement of reasons offered as a matter of routine policy violates the constitutional guarantee of due process and does not constitute good cause under Probate Code section (Edward W. 122 Cal.Rptr.2d at 24). Considering the proposed temporary conservatee s liberty, personal autonomy and dignity interests in receiving notice and an opportunity to be heard, among other things, the Edward W. court found that the 2 Five counties did not have requested information responsive to any of the requests; 30 counties provided requested information responsive to some but not all requests; 22 counties provided information responsive to all requests; and one county s response to all requests is pending. 3 We also submitted requests concerning the placement, assessment and services of individuals subject to temporary LPS conservatorship, and those findings will be discussed in a separate, forthcoming report by Disability Rights California. 3

6 routine practice of seeking notice waivers in temporary conservatorships violates the proposed conservatees constitutional right to due process. (Edward W. v.122 Cal.Rptr.2d at 22-23). The fact that in 2009 some counties always provided the required 5- day advance notice while other counties never provided the required 5-day advance notice indicates a clear violation of statutory and constitutional requirements. We also found that the content of advance notice to proposed temporary LPS conservatees varies widely across the counties thereby raising serious concerns over denial of temporary LPS conservatees protected liberty, personal autonomy and dignity interests in meaningful notice and opportunity to be heard. Differences in information provided to proposed temporary conservatees under the LPS Act and the Probate Code indicate violations of constitutional guarantees to due process and equal protection, as well as potential violations of the federal Americans with Disabilities Act (ADA) and other civil rights statutes. The report also includes the following eight (8) recommendations: 1. Counties that have a policy of blanket denial of advance notice to individuals proposed for temporary LPS conservatorship should immediately comply with the statutory and constitutional rights of proposed temporary conservatees to 5-day advance notice. 2. All counties should provide individual determinations as to whether or not good cause for waiver of the required 5-day notice is met. 3. All counties should provide written advance notice that provides information to the proposed temporary LPS conservatee comparable to the information specified under Probate Code section (a)(2). (See Appendix 1 - Sample). 4. Counties should develop written policies and procedures to operationalize the requisite provisions of advance notice. 5. The State Legislature should adopt a uniform Notice of Petition for Temporary LPS Conservatorship (See Welf. & Inst. Code section 5252). 4

7 6. The State Legislature should adopt a uniform procedure concerning service of the required 5-day advance notice to individuals subject to temporary LPS conservatorship. 7. The State Legislature should consider amending the LPS Act to require that a temporary conservatorship petition include a declaration of due diligence showing either the preferences of the proposed conservatee concerning the appointment of a temporary conservator and to permit the court to appoint a temporary LPS conservator other than county staff. (See Probate Code section 2250(d)). 8. Superior Courts should not permit counties to seek 5-day notice waiver as a blanket policy, and should require County Public Guardians/Conservators to exercise discretion in each individual case. Good cause should be based on an individualized factual showing that waiver of 5-day advance notice is essential to protect the proposed conservatee from substantial harm. (See Probate Code section 2250(k)). 5

8 FINDINGS Finding 1 Great Disparities Exist Across California Counties in Meeting the Advance Notice Provisions At 25% and perhaps over 50% of individuals subject to temporary LPS conservatorship in 2009 did not receive 5-day advance notice, which raises serious concerns over potential violation of their statutory and constitutional rights. Courts have consistently noted that [a]n elementary and fundamental requirement of due process... is notice reasonably calculated... to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (See Edward W. 122 Cal.Rptr.2d at 12). In 2009, there were significant disparities in provision of the required 5-day advance notice across the counties as follows: Four (4) counties, Calaveras, Glenn, Los Angeles and Sonoma, always asserted good cause to waive 5-day advance notice. These counties accounted for 1,016 or about 20% of petitions filed in Twenty-one (21) counties never asserted good cause, and thus the required 5-day advance notice appears always to have been given. These counties accounted for 805 or about 16% of temporary LPS conservatorship petitions filed in 2009 (Amador, Butte, Colusa, El Dorado, Lake, Madera, Merced, Modoc, Nevada, Placer, San Bernardino, San Francisco, San Joaquin, Santa Cruz, Shasta, Stanislaus, Trinity, Tulare, Tuolumne, Yolo, and Yuba). Eleven (11) counties reported that they usually provided 5-day advance notice. These counties accounted for 1,552 or about 31% of petitions filed in In about 83% of these cases (1,295 total) 5-day advance notice appears to have been 4 Fifty-two of 58 California counties provided information about the number of temporary LPS conservatorship petitions filed in 2009; these counties reported filing a total of 4,982 petitions, and our percentages are based on this figure. 6

9 provided. In about 17% of these cases (257 total) the county asserted good cause for not providing 5-day advance notice. (Inyo, Monterey, Napa, Riverside, San Diego, San Luis Obispo, San Mateo, Santa Clara, Siskiyou, Sutter, and Ventura). Twelve (12) counties reported that they had no records responsive to the number of cases in which good cause was asserted. These counties account for 1,609 or about 32% of petitions filed in (Alameda, Contra Costa, Del Norte, Fresno, Humboldt, Imperial, Kern, Kings, Marin, Orange, Sacramento, and Santa Barbara). Four (4) counties reported filing no petitions in 2009 (Mariposa, Plumas, San Benito, and Sierra). Five (5) counties reported no records responsive either to the number of petitions filed or to cases in which good cause was asserted (Alpine, Mendocino, Mono, Solano, and Tehama). One (1) county s response to all requests is pending (Lassen). Table 1 Summary of Reported 2009 Temporary LPS Conservatorship Petitions & Notice 4,982 Temporary LPS Conservatorship Petitions in ,100 5-Day Advance Notice Reported as Provided 7 Less than 5-Day Advance Notice Provided 5 1,266 Good Cause asserted for not Providing 5-Day Advance Notice (unclear if any notice given) 1,609 No Responsive Records Reportedly Available It is unclear why some counties appear able to provide 5-day advance notice in every case while other counties cannot provide 5- day advance notice in any case. This finding is troubling especially 5 See Information from Monterey and Siskiyou Counties at Appendix 2 Chart of Documents Received. It is unclear whether other counties that sought good cause waiver of 5-day notice provided less than 5-day advance notice. 7

10 given that the affected individual s location is usually known, e.g., an inpatient psychiatric facility, and that counties often have facility staff provide the requisite notice. Finding 2 Great Disparities Exist Across California Counties in Process for Providing the 5-Day Advance Notice Our findings also include great disparities with respect to the process for providing the requisite 5-day advance notice of temporary LPS petitions. First, however, we review the statutorily defined process for ex parte establishment of a temporary conservatorship. a. Ex Parte Establishment of Temporary Conservatorship Both the LPS Act and Probate Code provide for temporary conservatorship establishment ex parte, which in this context means without a hearing. (Welf. & Inst. Code section (a); Probate Code section 2250(h)(1); see also Probate Code section ). As mentioned above, with specified exceptions, the procedure for establishing conservatorship under the Welfare and Institutions Code is the same as that provided in Division 4 of the Probate Code. (Edward W. 122 Cal.Rptr.2d at 9, citing Welf. & Inst. Code Section 5350). Thus, where the LPS Act is silent, Probate Code provisions may apply. The Probate Code specifies procedures both for a hearing on appointment of a temporary conservatee and for investigation and interview relative to the proposed temporary conservatee, to the extent feasible. (Probate Code sections & ). The LPS Act does not contain comparable procedures. Welfare & Institutions Code section 5354 specifies the investigation process for LPS conservatorship; see also Welf & Inst. Code section 5356 (investigation report recommendations). The comprehensive investigation report under section 5354, however, is not required to establish a temporary LPS conservatorship. (Welf. & Inst. Code section (a)). An affidavit of the professional person who recommended conservatorship may suffice. (Id.) A temporary LPS 8

11 conservatorship may be extended up to six months. (Welf. & Inst. Code section (c)). Nonetheless, the procedures under the Probate Code, both for a hearing on appointment of a temporary conservatee and for investigation and interview relative to the proposed temporary conservatee, expressly do not apply to LPS conservatorship proceedings. (Probate Code section ). The absence of clear standards under the LPS Act, comparable to those under the Probate Code, likely contributes to the great disparities in provision of advance notice to individuals subject to temporary LPS conservatorship. b. Disparities in Notice Provision Across the Counties As noted above, the required 5-day advance notice to a proposed temporary LPS conservatee arises under the Probate Code, which specifies that such notice be personally delivered. (Probate Code section (c)). It does not specify who must provide the notice. (See California Code of Civil Procedure section (date upon which personal delivery is made shall be entered on or affixed to face of the summons and complaint served)). County documents provided generally provide for hospital staff to serve advance notice on the proposed conservatee between the fifth and eleventh day of a 14-day hold. 6 However, some counties provide that the Public Guardian or Conservator Office or other county staff serve advance notice. For example, Mariposa County policy provides, in part: [i]f a temporary conservatorship is appropriate, the Public Guardian/Conservator Social Worker will serve a Five-day Notice of Intent to File for Temporary Conservatorship with a Proof of Service to the proposed conservatee at the time of the interview. 6 If a professional person in charge of a facility providing intensive treatment recommends conservatorship, the proposed conservatee may be held in the facility for an additional three days if necessary for a filing of the temporary conservatorship petition or establishment by the court. (Welf. & Inst. Code section ). 9

12 Not all policies are clear in identifying who provides the notice. For example, Nevada County policy provides, in part: Legal Office Assistant... Prepares citation, notice of hearing, temporary and permanent letters... Directs transporter, or requests [Behavioral Health] case manager or Deputy PG, to serve citation on conservatee at the time of transport (citation must be served 15 days before permanent hearing). It is unclear under that provision whether advance notice of a temporary conservatorship is actually provided. However, another section of the county policy indicates that advance notice usually is given. It references an Exhibit 1e (Reasons to Dispense with Notice), which was not produced in response to our requests. This document is reportedly prepared and presented to the Judge by County Counsel; it provides County Counsel instructions as follows: Mark these clearly and be sure Exhibit 1e states the proposed conservatee has been noticed along with immediate family members. (emphasis added). However, the document does not identify who provides the notice itself. Pursuant to Welfare & Institutions Code section , family members can only be noticed if the proposed temporary conservatee consents. Like the Nevada County policy, other county documents also expressly provide for notice to family members and other concerned parties consistent with Welfare & Institutions Code section , which requires facility staff to advise a proposed conservatee that she or he may request that conservatorship hearing information not be given to family members (e.g., Calaveras and Fresno). Finding 3 Notice Content Varies Greatly Across Counties The information and records obtained from the counties identifies other troubling disparities across the counties concerning: (1) the content of the notice, including information on legal standards for temporary conservatorship, who could be appointed temporary conservator, consequences in terms of potential placement, potential legal disabilities imposed, how to object, 10

13 how to obtain assistance including private counsel; and (2) the opportunity to be heard, including processes for written objections to the court, appointment of counsel, hearing on temporary conservatorship petition, post-establishment review. Probate Code section (c) does not specify the content of notice but rather only that 5-day advance notice of the proposed appointment be provided. Another Probate Code section, however, specifies information that should be given to a proposed temporary conservatee. It provides that the court investigator notify the affected individual as follows: Inform the proposed conservatee of the contents of the citation, of the nature, purpose, and effect of the temporary conservatorship, and of the right of the proposed conservatee 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 counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel. (Probate Code section (a)(2)). Constitutional guarantees of due process and equal protection require that a proposed temporary LPS conservatee receive at minimum the same information as specified under that Probate Code provision. Notably, 26 counties reported having written policies on provision of advance notice proposed temporary LPS conservatees. 7 Thirty-one 7 Several county policies require investigatory interviews with the affected individual and significant others as well as require personal service of conservatorship documents and/or an opportunity for the conservatee to ask questions (e.g., Monterey). San Diego County policy requires the professional recommending conservatorship to provide the affected individual most if not all of 11

14 counties reported not having written policies, including the four counties that always asserted good cause for not providing 5-day advance notice in Several counties reported that while not having a written policy, they as a matter of practice provide the required notice (e.g., El Dorado, Fresno, Madera, and Santa Barbara); these counties did not specify the contents of the notice provided. Some counties reported that their policies were being revised (e.g., Sonoma). Calaveras County reported that it would revise its policies and procedures as a result of information provided in the public records act request. Eleven counties provided copies of their 5-day advance Notices (Butte, Contra Costa, Marin, Monterey, Orange, Riverside, San Bernardino, San Diego, San Mateo, Santa Clara, and Stanislaus). The content of these notices varies greatly and does not provide information specified above under the Probate Code. Thus, such notices indicate denial of proposed temporary LPS conservatees constitutional rights to due process and equal protection. a. Notice about the Legal Basis and Standards The Probate Code requires that the proposed temporary conservatee be informed of the contents of the citation. (Probate Code section (a)(2). This should include information about the legal basis and standards for the conservatorship. the information required under Probate Code section (a)(2). San Mateo County policy on Conservatorship Investigation provides, in part: Advise proposed conservatee that he/she has been referred for conservatorship and that a Temporary Conservator has been/will be appointed for thirty days. Explain the role of conservator, his duties and responsibilities and what can be expected. Provide handbook, Mental Health Conservatorship and You if appropriate (emphasis added). The handbook includes most if not all of the information specified under Probate Code section (a)(2), but it is provided only if appropriate. Further, San Mateo County reported that its provision of 5-day advance notice is done orally by the treating psychiatrist or psychologist, and that it does not contain information comparable to that required under the Probate Code, discussed further below. Finally, most county notice policies reviewed do not provide for information to the proposed temporary LPS conservatee comparable to that required under the Probate Code section (a)(2). 12

15 Several county notices refer to the professional person who recommended conservatorship. Monterey County states the name of the physician. San Mateo County requires the recommending professional to complete a Declaration Notice of Request for Temporary Conservatorship, which attests that the physician has personally informed the proposed conservatee of certain information related to the physician s request that a temporary conservatorship be established by ex parte petition None of the county notices provided contains space for a summary of such professional recommendation for conservatorship. 9 Most of the notices fail to advise the individual of the gravely disabled standard for establishment of the proposed conservatorship, i.e., that he or she is unable to provide for basic personal needs for food, shelter and clothing due to mental disorder. Most notices do not specify another important legal criterion to establish LPS conservatorship. Welfare & Institutions Code section 5352 requires that the professional person recommending conservatorship has determined that the proposed conservatee is unwilling to accept, or incapable of accepting, treatment voluntarily.... (Welf. & Inst. Code Section 5352). This requires consideration of voluntary referral to the home and community based providers on an outpatient basis as well as to voluntary inpatient treatment. (See Welf. & Inst. Code section 5252 and 5008(d)). 8 It is unclear under the policies and procedures provided by San Mateo County whether the proposed temporary conservatee receives a copy of this Declaration. 9 County policies indicate that the proposed conservatee may receive an advance Notice of Intent rather than the petition and accompanying declarations. For example, the Santa Clara County Notice of Proposed Appointment of Temporary Conservatorship states, in part, that Public Guardian for the County of Santa Clara may petition.... (Emphasis added). This document is provided to the individual by hospital staff, and a copy of it must be included in the referral packet to the Santa Clara County Public Guardian Office. It must serve 5 days prior to the end of [the individual s] 14 day hold, but only notifies the individual of the possibility of filing a conservatorship not the actuality or a binding document. Notice of intent to file a temporary conservatorship petition may be reasonable, depending on the circumstances, if it affords meaningful advance notice and an opportunity to be heard in the matter. 13

16 The Contra Costa County notice expressly states that the proposed conservatee is unwilling to accept or incapable of voluntarily accepting, treatment.... However, it does not provide space for listing the specific services considered and offered as an alternative to temporary conservatorship. 10 The San Mateo County professional Declaration referenced above includes a statement that the proposed conservatee is unwilling to accept or incapable of accepting treatment voluntarily. Again, however, there is no space to specify such assistance. Further, the Declaration is unclear whether the proposed conservatee received information about that requisite legal criterion. b. Notice Identifying the Proposed Conservator The Probate Code requires that the proposed conservatee be informed of the nature of the proposed conservatorship. (Probate Code section (a)(2)). The applicable statutes also require that this include information about the proposed conservator. For persons who are considered gravely disabled under Welfare & Institutions Code section 5008(h)(1)(A), the LPS Act specifies that appointment of the conservator shall be subject to the list of priorities in Section 1812 of the Probate Code unless the officer providing conservatorship investigation recommends otherwise to the superior court. (Welf. & Inst. Code section 5350(b)(1)). Section 1812 of the Probate Code provides that... of persons equally qualified... as conservator of the person or estate... preference is to be given in the following order: (1) the spouse or domestic partner... (2) an adult child... (3) a parent... (4) a brother or sister... (5) any other person or entity eligible for appointment.... (Probate Code section 1812(b)). Further, if the proposed conservatee has sufficient capacity... to form an intelligent preference, the proposed conservatee may nominate a conservator.... The court shall appoint the nominee as conservator unless the court finds that the appointment of the nominee is not in 10 The specific services that should be considered and offered consistent with state and federal law, including but not limited to the U.S. Supreme Court decision Olmstead v. L.C., 527 U.S. 581 (1999), are discussed in a separate, forthcoming report by Disability Rights California. 14

17 the best interests of the proposed conservatee. (Probate Code section 1810; see also Probate Code section 1812(a) (conservator selection is solely in the discretion of the court)). However, the LPS specifies that for purposes of a temporary conservatorship, the conservatorship investigator, other county officer, or employee designated by the county shall be appointed. (Welf. & Inst. Code section 5352). 11 The county policies obtained and reviewed indicate that someone from the Public Guardian s office is generally designated as temporary conservator. However, some counties appoint a staff person from the County Department of Behavioral Health, formerly and still occasionally referred to as the County Department of Mental Health. While most of the county notices provided generally refer to a petition for temporary conservatorship filed by the County Public Guardian s office, none specifies the name of the person who would serve as temporary conservator. c. Notice about the Purpose of LPS Conservatorship The Probate Code requires that the proposed conservatee be informed of the purpose of the proposed conservatorship. (Probate Code section (a)(2)). The LPS Act specifies that [t]he purpose of conservatorship... is to provide individualized treatment, supervision, and placement. (Welf. & Inst. Code section ). None of the county notices provided reference this stated purpose. 11 A friend, family member or any person entitled to petition for the appointment of the guardian or conservator may petition to be appointed temporary conservator of the person or estate or both under the Probate Code section It is unclear why only county staff can serve as a temporary LPS conservator. 15

18 d. Notice about Potential Placement The Probate Code requires that the proposed conservatee be informed of the effect of the proposed conservatorship. (Probate Code section (a)(2)). A temporary LPS conservator must take steps to arrange for food, shelter and care pending a conservatorship determination. (Welf. & Inst. Code section 5353). The temporary conservatorship expires after 30 days, unless there is a court hearing or the proposed conservatee requests a court or jury trial. (Welf. & Inst. Code section ). If a court or jury trial is requested, the court may extend the temporary conservatorship up to six months. (Id.). The temporary conservator must give preference to arrangements which allow for the person to return to his home, family or friends. (Welf. & Inst. Code section 5353). If necessary, the temporary conservator may require detention of the conservatee in a facility specified in Welfare & Institutions Code section (Id.) Welfare & Institutions Code section 5358 permits placement in various medical, psychiatric, nursing or other state-licensed facilities including a state or county hospital. (Welf. & Inst. Code section 5358(a)(2)). The court designates the least restrictive alternative placement for a conservatee who is gravely disabled under subparagraph (A) of paragraph (1) of subdivision (h) of Welfare & Institutions Code section (Welf. & Inst. Code section 5358(a)(1)(A)). Some of the county notices reference the potential placement, such as a facility providing intensive treatment, but others do not. e. Notice about the Potential Legal Disabilities Imposed In addition, the effect of LPS conservatorship includes potential specified legal disabilities. The powers of a temporary LPS conservator are specified by court order, but may be as broad as the powers that may be granted a permanent conservator. (Welf. & Inst. Code section 5353). In addition to control of the proposed conservatee s estate and authority to place him or her in a locked facility, the following legal disabilities 16

19 could be imposed on a temporary conservatee: (1) the privilege to possess a license or to operate a motor vehicle; (2) the right to enter contracts; (3) the disqualification of the person from voting; (4) the right to refuse or consent to treatment related specifically to the conservatee s being gravely disabled; (5) the right to refuse or consent to routine medical treatment unrelated to remedying or preventing the recurrence of the conservatee s being gravely disabled; and (6) disqualification from possessing a firearm. Only the San Diego County notice references each of these six potential legal disabilities. Other county notices provided reference to some legal disabilities, mainly regarding the right to refuse or consent to treatment related specifically to being gravely disabled. The San Diego County notice states that [t]he temporary conservator does not have responsibility for your finances or estate. Whereas most county notices provided refer to a petition for a temporary conservatorship of the person and/or estate. f. Notice on the Right to Oppose the Proceeding The Probate Code requires that the proposed conservatee be informed of the right of the proposed conservatee to oppose the proceeding. (Probate Code section (a)(2)). A meaningful opportunity to be heard is also an important constitutional right. As the Edward W. court found: [w]ith notice that a conservatorship is being sought, the proposed conservatee would have an opportunity to contest the appointment either before it occurred or within a short time thereafter.... Moreover, even if the proposed conservatee could not avoid the conservatorship, he or she might be able to influence the scope of the powers given to the temporary conservator and restrictions imposed upon the conservatee. At a minimum, the proposed conservatee s dignity interest in being informed of, and allowed to participate in, decisions affecting him or her would be protected. 17

20 (Edward W. v. Lamkins, 122 Cal.Rptr.2d at 19). All of the county notices provided refer to the right to object to the petition. The notices refer to the County Patients Rights Advocate and/or County Public Defender. However, not all of the notices contain contact information for such assistance. Several notices also state that the proposed conservatee may contact a private attorney of his or her choice. i. Provision of objection form Several counties provide an objection form that can be completed by the individual so that his or her objection(s) may be considered by the court prior to temporary conservatorship petition review. Contra Costa County attaches to its Notice a form entitled Objection to Appointment of Temporary Conservator. It provides that a proposed conservatee can challenge the allegation of gravely disabled, and also provides space for statements on how the proposed conservatee can provide for her or his basic needs. San Bernardino County has a form entitled DECLARATION OF PROPOSED CONSERVATEE REGARDING EX PARTE PETITION FOR TEMPORARY CONSERVATORSHIP. It states that the proposed conservatee has been notified of the petition by the San Bernardino County Department of Behavioral Health Conservatorship Investigator, and provides the statement, I object to the establishment of said conservatorship, which is followed by two boxes, No and Yes. Stanislaus County has a form entitled OPPOSITION TO PETITION FOR TEMPORARY CONSERVATORSHIP. Directions provide that if the proposed conservatee does not want the Court to grant a petition appointing the Stanislaus County Public Guardian Temporary Conservator of your person and estate, write out the reasons below. The form must then be given to hospital staff or the County Patients Rights Advocate within 24 hours of receiving the notice. It is then given to the Public Guardian s Office, which presents it to the Judge with the petition. The forms states: I,, am opposed to a Temporary Conservatorship for the following reasons :( blank lines). 18

21 Dated: I hereby declare under penalty of perjury that the foregoing is true and correct. (signature line). ii. Treatment team meetings Some county policies reference team meetings where a proposed conservatee presumably could voice objections. For example, Kern County policy provides for an Interdisciplinary Team (IDT) meeting, including the proposed conservatee, to discuss all possible alternatives to LPS conservatorship. g. Notice on the Right to Attend the Hearing The Probate Code requires that the proposed conservatee be informed of the right to attend the hearing. (Probate Code section (a)(2)). Some policies suggest the opportunity for a hearing on the temporary conservatorship petition. Monterey County policy provides that the Deputy Public Guardian personally serve notice and inform the proposed conservatee of the right to object. Under this policy, if the proposed conservatee objects, hospital staff may inform the county and a hearing on the temporary conservatorship is set. The San Bernardino County policy, which provides a form Declaration for Objections to Petition for Temporary Conservatorship, states that if objection is received, an attorney will appear on the person s behalf at the temporary conservatorship hearing. The Contra Costa County policy advises the proposed conservatee to fax or deliver the above referenced Objection to Appointment of Temporary Conservator to the Public Defender before 11 a.m. on the date of the hearing. The Objection is submitted by a Deputy Public Defender. While none of the county notices provided states that the proposed conservatee could attend a hearing, the Orange County policy states: If the patient s attorney notifies the Public Guardian that the patient objects, arrangements will be made to transport the patient to court for a brief hearing to state his or her objections. 19

22 Some county notices provided refer to a post-establishment opportunity to challenge the temporary conservatorship through a Writ of Habeas Corpus. This may be consistent with the Edward W. decision, which found that Probate Code section 2250 allows for a conservatee to challenge the temporary conservatorship by a request for judicial review. (Edward W. 122 Cal.Rptr.2d at 22.) However, none of the county notices provided refers to the right to attend the Writ of Habeas Corpus hearing. The reasonableness of opportunities to be heard requires further information and consideration specific to each county. For example, a form for submission of written objections may not be very meaningful without detailed information in the notice about the nature and consequences of temporary LPS conservatorship. 12 In addition, it would likely be helpful for the proposed conservatee to receive information about the array of home and community based services that she or he could appropriately receive on a voluntary basis in lieu of temporary conservatorship. h. Notice on the Right to Jury Trial The Probate Code requires that the proposed conservatee be informed of the right to have the matter of the establishment of the conservatorship tried by jury. (Probate Code section (a)(2)). 12 The San Benito County policy is unclear on the issuance of advance notice to a proposed conservatee. It suggests that the affected individual may only receive advance notice if a hearing is to be held on the petition for Temporary Conservatorship, which reportedly would not occur in most cases. The policy provides: If a hearing is to be held to review the petition for Temporary Conservator, the conservatee may be notified. Absent good cause (as determined by the court), notice of the hearing shall be personally served to the proposed conservatee at least five (5) court days before the hearing. (Emphasis in the original). San Benito County policy provides, in part: Within five (5) working days of the establishment of the Temporary Conservatorship, County Counsel must mail to the temporary conservatee a copy of the order appointing a temporary conservator. The written notice includes the contact information for the temporary conservator. 20

23 An individual who is subject to a petition for so-called permanent LPS conseravatorship, which is for up to one year and subject to annual re-establishment, has a right to demand a court or jury trial on such petition. (Welf. & Inst. Code section 5350(d) see also Welf. & Inst. Code section (temporary conservatorship may be extended up to six months if a court or jury trial is demanded)). None of the county notices provided refers to the statutory right to a jury trial if permanent and temporary conservatorship are alternatively pleaded in the petition. i. Notice on the Right to Seek Private Attorney The Probate Code requires that the proposed conservatee be informed of the right to be represented by legal counsel if the proposed conservatee so chooses. (Probate Code section (a)(2)). 13 As discussed above, several county notices inform the proposed conservatee of the right to contact private counsel, but most do not. j. Notice on the Right to Court Appointed Counsel The Probate Code requires that the proposed conservatee be informed of the right to have legal counsel appointed by the court if unable to retain legal counsel. (Probate Code Section (a)(2)). The LPS Act requires the court to appoint the public defender or other attorney for the conservatee or proposed conservatee within five days after the date of the petition. (Welf. & Inst. Code section 5365). County notices are somewhat vague on the right to court appointed counsel. Most notices refer the proposed conservatee to the County Public Defender, which suggests availability for representation. The San Bernardino County notice states that if the proposed conservatee 13 Information on seeking legal advice prior to temporary conservatorship establishment is important as the individual s right to contract could be taken away upon issuance of the temporary conservatorship order. 21

24 has stated an objection, an attorney will appear in Court on your behalf. The San Benito County policy provides, in part: The court shall appoint the public defender or other attorney for the proposed conservatee within five (5) days after the date of the petition. Further, it states that in most instances the Temporary Conservatorship is established ex parte (without a hearing). The court reviews the documentation and determines if a Temporary Conservatorship is warranted. Thus, in most cases, the public defender presumably is appointed within five (5) days of an order appointing a temporary conservator. County notices are generally unclear on the right to court appointed counsel. 22

25 RECOMMENDATIONS 1. Counties that have a policy of blanket denial of advance notice to individuals proposed for temporary LPS conservatorship should immediately comply with the statutory and constitutional rights of proposed temporary conservatees to 5-day advance notice. 2. All counties should provide individual determinations as to whether or not good cause for waiver of the required 5-day notice is met. 3. All counties should provide written advance notice that provides information to the proposed temporary LPS conservatee comparable to the information specified under Probate Code section (a)(2) (See Appendix 1 Sample). 4. All counties should develop written policies and procedures to operationalize the requisite provisions of advance notice. 5. The State Legislature should adopt a uniform Notice of Petition for Temporary LPS Conservatorship (See Welf. & Inst. Code section 5252). 6. The State Legislature should adopt a uniform procedure concerning service of the required 5-day notice to individuals subject to temporary LPS conservatorship. 7. The State Legislature should consider amending the LPS Act to require that a temporary conservatorship petition include a declaration of due diligence showing either the preferences of the proposed conservatee concerning the appointment of a temporary conservator and to permit the court to appoint a temporary LPS conservator other then county staff. (See Probate Code section 2250(d)). 8. Superior Courts should require County Public Guardians/Conservators to exercise discretion in each individual case. Good cause should be based on an individualized factual showing that waiver of 5-day advance notice is essential to protect the proposed conservatee from substantial harm. (See Probate 23

26 Code section 2250(k)). Superior Courts should not permit counties to seek 5-day notice waiver as a blanket policy. 24

27 APPENDIX 1 SAMPLE NOTICE OF PETITION FOR TEMPORARY CONSERVATORSHIP Five (5) day advance notice is generally required for all persons subject to temporary (30 days) conservatorship pursuant to Probate Code Section and Welfare and Institutions Code Section 5275 and The authorized agency in the County has received a recommendation for conservatorship from concerning the condition of: Name: Address: Age: Sex: A temporary conservatorship is recommended for the above-named who, as a result of a mental disorder, is allegedly: Gravely disabled, which means unable to provide for basic personal needs for food, shelter and clothing. The specific facts that form the basis for the opinion that you are gravely disabled are as follows: The above-named person has been informed of this recommendation, and has been advised of the need for, but has not been able or willing to accept treatment on a voluntary basis, or to accept referral to, the following services: The conservatorship investigator, other county officer, or employee designated by the county would act as temporary conservator for a period of 30 days, unless a continuance is granted or a permanent (one-year) conservator is appointed. You have a right to court or jury trial on a petition for permanent conservatorship. A family member or friend could be appointed to serve as your permanent conservator. You have a right to express your preference. The purpose of conservatorship under the LPS Act is to provide for your individualized treatment, supervision, and placement. If appointed for you: A temporary conservator must take steps to arrange for your food, shelter and care pending a conservatorship determination. The temporary conservator must give preference to arrangements for you to return home, or to the home of family or friends. 25

28 If necessary, the temporary conservator may require your detention in a facility. The court will designate the least restrictive placement for you. The court could also issue an order taking away your rights to: the privilege to possess a license or to operate a motor vehicle; enter contracts; voting; refuse or consent to treatment related to being gravely disabled; refuse or consent to routine medical treatment unrelated to remedying or preventing the recurrence of your being gravely disabled; possess a firearm. The proposed temporary conservatee may also seek responsibility for control and management of your finances and estate. You may oppose, or otherwise respond to, the request for the Temporary Conservatorship by contacting the Patients Rights Advocate at (number), or the Public Defender s Office at (number). You may also choose Private Attorney. Otherwise, the court will appoint an attorney within five days of a petition. If you would like to contest the appointment of a temporary conservator, you can do so by filing written objections. If you have any questions or need assistance in preparing your objection, contact the Patients Rights Advocate, Public Defender s Office, or a private attorney. The Court may consider the Petition for Temporary Conservatorship with or without a hearing. You have a right to attend any hearing. If the judge grants the Temporary Conservatorship, you also have the right to seek judicial review of that decision by filing a Petition for Writ of Habeas Corpus. You may contact the County Patients Rights Advocate, Public Defender, or a private attorney to request that a habeas corpus petition be filed. A hearing will be held on the petition two court days later. You have a right to attend the hearing. Proof of Service I hereby certify that I personally delivered this Notice of Petition of Appointment of Temporary Conservator upon the above-named individual, in the County of, State of California, on the day of, 2011 at a.m./p.m. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: Signature: Print name: Job Title and Agency: 26

29 APPENDIX 2 CHART OF DOCUMENTS RECEIVED COUNTY Policies Petitions Filed 2 27 Good Cause Asserted 3 Good Cause Found 4 Alameda N N N Alpine N N N N Amador N Butte N Calaveras N Colusa N Contra Costa Y N N Del Norte N 4 11 N N El Dorado N Fresno N N N Glenn N Humboldt N N N Imperial N N N Inyo N Kern N N N Kings N N N Lake N Lassen P P P P Los Angeles N Madera N Marin Y N N Mariposa Y Mendocino N N N N Merced Y Modoc N Mono N N N N Monterey Y Napa N Nevada Y Orange Y N 32 N 33 Placer Y

30 COUNTY Policies Petitions Filed 2 Good Cause Asserted 3 Good Cause Found 4 Plumas N Riverside Y Sacramento N N N San Benito Y San Bernardino Y San Diego Y San Francisco Y San Joaquin N San Luis Obispo Y San Mateo Y Santa Barbara N N 48 N 49 Santa Clara Y Santa Cruz Y Shasta N Sierra Y Siskiyou Y Solano N 60 N 61 N N Sonoma N Stanislaus Y Sutter Y Tehama N N 66 N N Trinity N Tulare Y Tuolumne Y Ventura Y ? 72 Yolo Y Yuba Y The specific documents requested were as follows: Written policies and practices on providing advanced notice of a proposed temporary Lanterman- Petris-Short (LPS) Act conservatorship to a proposed individual conservatee in accordance with Section 2250 of the California Probate Code and California Constitutional Due Process (See Edward W. v. Lamkins, 122 Cal.Rptr.2d 1 (2002)). 28

31 2 The specific documents requested were as follows: The number of LPS temporary conservatorships for which the County Public Guardian filed petitions during the period January 1, 2009 to December 31, The specific documents requested were as follows: The number of LPS temporary conservatorships for which the County asserted Good Cause for not providing 5-day advance notice to a proposed individual LPS temporary conservatee during the period January 1, 2009 to December 31, The specific documents requested were as follows: The number of LPS temporary conservatorships for which the Court found Good Cause for not providing 5-day advance notice to a proposed individual LPS temporary conservatee during the period January 1, 2009 to December 31, N = no responsive records; Y = responsive record(s) provided; P = response pending. 6 Based on Monthly LPS Statistics for 2009 from the Alameda County Public Guardian-Conservator s Office, Investigations (Referrals) forwarded to County Counsel. Statistics include ethnicity, language and geographic source including homelessness. 7 The county stated: We serve a written 5 day notice stating that we intend to file for a Temporary LPS Conservatorship. Sample of Notice of Intent to File attached. 8 The county provided Policy IV. Provider Services G. Lanterman-Petris-Short Conservatorship (which does not address 5-day advance notice) for requests 1, 5, 6 and stated: As a result of information you provided in your request, we are aware that this P&P is in need of revision and we will be working on this in the weeks ahead. Thanks so much for bringing this to our attention. 9 The county stated: Our practice is to provide notice as required by applicable laws. 10 The county stated:... since we would not have any contact with the wouldbe conservatee while he/she is still in the hospital, the hospital has to serve the advance notice to the patient if they want to make a referral to our office for a LPS petition. The hospital should be informed of the 5 days advanced notice rule (by hospital s Patient s Rights Advocate) as well as our instruction sheet. For some clinical reasons whey they cannot give 5 days advance notice, they must fill out the Declaration Regarding Late Notice to Patient form or this office would not accept the referral. Thus, this office would not have any data for questions 29