Lanterman-Petris-Short (LPS)
Conservatorships

#Gravely Disabled

What exactly is it?

Definition? Criteria?

The statutory definition of commitment for grave disability is

“a condition in which a person, as a result of a mental disorder, is unable to provide for his basic personal needs, for food, clothing, or shelter.’  ^{CAL. WELl. & INST. CODE § 5008(h)  5250}

“a finding of imminent danger as evidenced by a recent overt act, attempt or threat,”  ^{CA Civil Jury Instructions 4002 *  Capacity Declaration GC 335 *   Grave Disability Includes Financial & Health Issues}

Be sure to check out our main page on Conservatorship for an introduction

Grave disability

From the LPS Lanterman Petris Short act, grave disability is defined with three seemingly simple reasons – criteria:

Need for food

• Cannot distinguish between food and non food
• Endangers health by gross negligence in needed diet and nutrition
• Begging or stealing food
• Eating out of refuse or garbage cans
• Ordering meals at restaurants without having funds
• Demonstrates excessive and consistent food preferences or aversions which endanger health (except for genuine religious reasons)
• Having spoiled food in refrigerator or no food for a lengthy period of time in the house

Need for clothing

• Engaging in public nudity or “unthinking” exhibitionism
• Engaging in bizarre style of dressing that does would be apt to lead to social difficulties (if not used by social group or personal preferences)
• Wearing filthy or soiled clothes with lack of recognition of personal hygiene problem
• Wearing disheveled clothes for prolonged period of time

Need for shelter

• Leading a nomadic existence with an inability to establish stable community living, including living in the streets or other public places
• Unable to locate housing and make the appropriate arrangements with an inability to ask for or accept assistance in doing so
• Unable to manage his or her household in such a way as to avoid clear dangers to health
• Presence in household of filthy conditions) fire hazards that the person cannot correct, vermin infestations, and lack of bathing and toilet facilities
• Resists leaving residence even if evicted or the residence is sold
• Hoarding nonsensical items while misplacing necessary items

Financial incompetence

• Unable to earn an income and unable to avail himself of financial assistance from public or private agencies
• Completely dependent on family or friends to provide financial assistance for basic personal needs
• Has funds but no longer knows or understands the location and/or extent of them
• Refusing to expend funds to the extent of endangering personal health and/or safety
• Has no funds and does not see this as a problem
• Grossly and inappropriately expends funds needed for basic personal needs
• Has untrue beliefs as to having extensive money or property
• Mismanages funds so that rent and utility bills remain unpaid
• Unable to accept inability or loss of ability to understand complex financial matters leaving him vulnerable to manipulation by unscrupulous individuals

Incompetence in regard to health

• Unable or unwilling to follow medical instruction regarding treatment and self care which are essential to health
• Loss of weight or other evidence of malnutrition due to not eating or lack of proper food
• Wanders away from residence and becomes lost frequently without recognition of the seriousness of the problem
• Failure to adjust in the community
• Involved in frequent confrontations with family members or neighbors involving abusive, threatening, or assaultive behavior
• Engages frequently in disruptive, destructive acts in the home or neighborhood, possibly leading to threatened or actual eviction
• Engages in bizarre or other behavior which may be self-endangering and/or a threat to others requiring police intervention  ^{Jewish Family Service Summary}

Though these criteria may seem simple, they aren’t. For example, just because someone is mentally ill and homeless does not mean that they are gravely disabled. If they can provide a reasonable, executable plan for where they would stay or if they are stable being homeless, then they do not meet LPS criteria. If, on the other hand, they are homeless in a location in which their life or health is often in jeopardy and, as a result of mental illness, they do not comprehend this, then they likely are gravely disabled. These issues achieve marked salience in hearings for 5250‘s in which the argument is made that someone is gravely disabled. It is often helpful to identify which underlying issues lead you to the conclusion rather than requiring the hearing officer to identify the issues. If someone is gravely disabled for an extended period of time, they can be placed on an LPS conservatorship. Note, however, that there are So, below are examples of states or conditions that have been upheld as evidence of grave disability. Note that they extend beyond a simplistic definition relating to food, clothing, and shelter. That is, there are a variety of ways one can demonstrate incompetence in these areas.

***********

the Court, in Addington v. Texas,  held that the need for civil commitment must be provided by clear and convincing evidence. In the Lanterman-Petris-Short Act (LPS), the legislature opted to reduce long-term confinement of the mentally ill. “habeas corpus”  meaning literally “that you have the body”)^[1] is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.^[2]

Conservatorship of Roulet  –  Proof beyond a reasonable doubt

Parham (Test) v J.R. 442 US 584  1979 Gravely Disabled vs dangerous to self and others? The court in Doe I held that the grave disability term was sufficiently precise. The court found that grave disability implicitly required a finding of harm to oneself, i.e. an inability to provide for one’s basic physical needs, and therefore met the constitutional requirement of dangerousness. The right to choose and practice a particular life style is protected by the first amendment rights of association, assembly, and free expression  Law.SCU.Edu  Written 1.1982 *

Case Law if nothing else, the background information is an interesting story.

Kanuri Surgury QAWI, on Habeas Corpus Conservatorship of Carol K. Conservatorship of the Person and Estate of JESSE G HTML

Conservatorship of Chambers

Conservatorship of Davis (1981)

Conservatorship of Smith (1986)

Conservatorship of K.W.

#Institute for the Mentally Ill (IMD)

#Probate Conservatorships

A probate conservatorship is a court proceeding where a judge appoints a responsible person (called a conservator) to care for another adult who cannot care for him/herself or his/her finances. MORE »

An LPS (mental health) conservatorship makes one adult responsible for a mentally ill adult. This type of conservatorship is only for adults with mental illnesses listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).  An LPS conservatorship is only for people who are seriously mentally ill and need special care (usually placement in a locked facility and/or very powerful drugs to control behavior). MORE »

A limited conservatorship is a court proceeding where a judge gives a responsible person certain rights to care for another adult who has a developmental disability.  Generally, a person qualifies as developmentally disabled if s/he has an IQ less than 70 or is diagnosed with autism. Because developmentally disabled people can usually do many things on their own, a limited conservator has more limited powers than an LPS conservator. MORE »

What’s all this about getting the courts #permission for Medical Care?

What’s a 7 point letter?
LA Court Form  

Consenting to Medical Treatment

If you think the conservatee is making a mistake by refusing treatment, talk to your lawyer about your options. L

Legal Advice The symbol L notes a situation that may require your lawyer’s advice or assistance.

Read this page, follow the links at least three times… then consult with your attorney.

Exclusive authority. A request for the conservator to have exclusive authority to make medical decisions for the conservatee is usually made in the initial petition for conservatorship. If this request was made in your petition for appointment, your Letters will show that you have this authority.

      If you do not have this authority and at some point believe that the conservatee has lost the ability to make sound medical choices, you may have to petition the court to take away the conservatee’s right to make medical treatment decisions and to give that right and responsibility solely to you. To do so, you must complete, sign, and file Judicial Council form GC-380, Petition for Exclusive Authority to Give Consent for Medical Treatment. The court’s order granting that authority is filed on Judicial Council form GC-385, Order Authorizing Conservator to Give Consent for Medical Treatment. Links to both forms are included in Appendix F.

All Probate & Guardianship Forms on CA Court Website

     If the court grants your request for exclusive authority after your appointment, you would then need to prepare, sign, and ask the court
clerk to issue a new set of Letters showing that you have this authority. Your lawyer would prepare and file the petition, obtain the court’s order, and see that you receive your new Letters. L

     You should give certified copies of your Letters showing your authority to the conservatee’s hospital, doctors, and care facility. Often these
people and institutions will be willing to accept or make a copy of a certified copy for their files.

The authority to make health care decisions for the conservatee is very important and should not be taken lightly. Try to involve the conservatee in your decisions and respect his or her desires as much as possible.  Talk with the conservatee’s family and friends to figure out how the conservatee would want things arranged if he or she is unable to tell you directly.   ^{courts.ca.gov/handbook}

On the other hand…

WIC 5358.2 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.

Admissible Evidence Required – not just Doctors written declaration  Scott v Superior Court  attorney summary.

Actual Case

OPINION

IKOLA, J.—

Petitioner Scott S. petitions for writ review of an order authorizing Lucille Lyon, public guardian for Orange County, to consent to amputating petitioner’s infected toe. He contends the court erred by relying on a physician’s written declaration to find the amputation was medically necessary.

(1) We agree. The Lanterman-Petris-Short Act (LPS; Welf. & Inst. Code, § 5000 et seq.)¹ authorizes conservatorships for gravely disabled persons like petitioner. The conservatee generally retains the right to give or withhold consent to medical treatment. The conservator must seek authorization from the court to obtain medical treatment to which the conservatee objects. (§ 5358.2.)

Resolving an issue of first impression, we hold an LPS conservator seeking such an order must show the desired treatment is medically necessary—and must do so through admissible evidence. This conclusion follows from plain statutory language and harmonizes the LPS with the Probate Code, portions of which the LPS incorporates by reference. We grant the writ petition and direct the court to vacate its order and conduct a new hearing to determine whether admissible evidence shows the amputation is medically necessary.

Medi-Cal Dental Benefits

Medical Benefits

Letters of Conservatorship  GC 350

courts.ca.gov/selfhelp-conservatorship

Powers of Conservator

Riese Petition WIC 5332 b

Consent for ECT Electroconvulsive Treatment

Handbook for Conservators 318 Pages

All Probate & Guardianship Forms on CA Court Website