What Is the LPS Act ?
In Conservatorship of John L. (2010) 48 Cal.4th 131, the Supreme Court provided background about the LPS Act: "The LPS Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. ( 5150 et seq.)
The Act authorizes the superior court to appoint a conservator of the person for one who is determined to be gravely disabled ( 5350 et seq.), so that he or she may receive individualized treatment, supervision, and placement ( 5350.1).
As defined by the Act, a person is 'gravely disabled' if, as a result of a mental disorder, the person 'is unable to provide for his or her basic personal needs for food, clothing, or shelter.' ( 5008, subd. (h)(1)(A).)
"Integral to the LPS Act is its procedure for ascertaining whether a conservatorship of the person should be established. Each county is required to designate an agency to undertake an investigation to aid the court in determining whether a conservatorship is appropriate ( 5351), and the investigating officer must submit a comprehensive written report to the court prior to the conservatorship hearing ( 5354). The written report must include 'all relevant aspects of the person's medical, psychological, financial, family, vocational and social condition, and information obtained from the person's family members, close friends, social worker or principal therapist.' (Ibid.) It must also state whether the investigator recommends a conservatorship and, if not, identify all available alternatives. (Ibid.) When a conservatorship is recommended, the report must make recommendations concerning a suitable conservator, the powers and duties to be granted and imposed upon the conservator, the legal disabilities to be imposed upon the proposed conservatee, and the appropriate placement. ( 5355, 5356.)
"The procedures for establishing a conservatorship include a number of requirements pertaining to notice, hearing and trial rights, and other matters. Specifically, the petition for appointment of a conservator of the person and the citation for conservatorship must be served upon the proposed conservatee at least 15 days before the scheduled hearing date, and the proposed conservatee must be given notice of the privileges and rights subject to deprivation as part of the conservatorship. ( 5350; Prob. Code, 1823, 1824.)
Section 5350 specifies that the "procedure for establishing, administering, and terminating a conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code," followed by listed exceptions that are not implicated by the issues before us. Division 4 of the Probate Code embodies the Guardianship-Conservatorship Law, a separate statutory scheme governing the appointment of conservators of the person for "adults who for any reason are incapable of taking care of themselves." (38 Cal.Jur.3d (2006) Incompetent Persons, 3, p. 180.) Accordingly, LPS conservatorship proceedings are governed not only by the Welfare and Institutions Code, but also by provisions in the Probate Code.
A hearing must be held within 30 days of the date of the petition, and the court must 'appoint the public defender or other attorney for the . . . proposed conservatee within five days after the date of the petition.' ( 5365.) The proposed conservatee 'shall have the right to demand a court or jury trial on the issue whether he or she is gravely disabled,' but must do so before or within five days following the hearing on the conservatorship petition. ( 5350, subd. (d).) The party seeking imposition of the conservatorship must prove the proposed conservatee's grave disability beyond a reasonable doubt, and a jury verdict finding such disability must be unanimous. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 235.) An LPS conservatorship automatically terminates after one year, and reappointment of the conservator must be sought by petition. ( 5361.)" (John L., supra, 48 Cal.4th at pp. 142-143.)
Whether or not the conservatee demands a jury trial on the issue of grave disability, the conservatee has a "right to a court hearing on the issues of placement, disabilities imposed on the conservatee, and powers of the conservator." (Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604.)
Among the procedural requirements of an LPS conservatorship proceeding is Probate Code section 1828, providing that "prior to the establishment of a conservatorship and assuming the proposed conservatee's presence has not been excused, the court shall inform the proposed conservatee" of, among other things, "the nature and purpose of the proceeding"; the effect the proceeding might have on the conservatee's basic rights; the potential that the conservatee might be disqualified from voting; the identity of the proposed conservator; and the right to oppose the proceeding and have the matter of the establishment of the conservatorship tried by jury. (Prob. Code, 1828, subd. (a).) After the court provides this information, "the court shall consult the proposed conservatee to determine the proposed conservatee's opinion" concerning the establishment of the conservatorship and the appointment of the proposed conservator. (Id., 1828, subd. (b).)
"Conservatees are not, by reason of their conservatorship, automatically considered incompetent, and their ability to knowingly and intelligently waive their hearing rights is a question of fact . . . ." (Conservatorship of Moore (1986) 185 Cal.App.3d 718, 732.)