We all value our own mental health and freedom to control our own lives as the most precious gifts we possess. The law recognizes that fact and imposes complex procedural requirements before the State or another person can assume power over the actions of another or responsibility for making decisions for another.
In general, a conservatorship is established over an adult, while guardianships apply to minors. There are generally two kinds of conservatorships: over the person and over the estate. Many times, one conservator will be appointed the conservator over the person (personal care) and estate (assets) of the ward.
Conservatorship over the estate creates a fiduciary duty to care for the assets of the ward. Conservatorship over the person creates a fiduciary duty to care for the health and welfare of the ward.
This can sometimes lead to disputes between the ward and the conservator as to what is appropriate. See our article on Disputes Between Wards and Guardians.
To establish a conservatorship over the person, the court must find that the ward (the person for whom the conservatorship is to be established) is substantially unable to provide for their food, clothing, safety and shelter. The petition to create a conservatorship is usually filed by a loved one or family member who recognizes the ward’s inability to provide for his or her own needs but note that the petition can be filed by the State if there is no relative available to take the step.
When the court orders the establishment of a conservatorship over the person, after a hearing it will appoint a conservator and grant that person the authority to make all necessary decisions to properly provide food, clothing and shelter for the ward. Often, these powers will also include the authority to make medical decisions.
As to conservatorship of the estate, the person appointed is required to handle all economic decisions necessary to protect and maximize conservatively the assets of the ward and to pay from the assets of the ward the various expenses incurred.
Involuntary commitment is a proceeding brought to institutionalize a person thought to be a danger to him or herself or to society and is subject to even more rigid guidelines due to the needs of due process.
Conservator of the Estate versus Conservator of the Person:
Unlike a guardian or conservator of the person, a conservator of the estate has no power or responsibility over the individual. Only the money and property falls within the conservator’s jurisdiction. A conservator has power to invest funds of the estate and to distribute sums reasonably necessary for the support, care, education or benefit of the protected person and any legal dependents of the protected person. Either an individual or a corporation with general power to serve as a trustee may be appointed conservator for a protected person. Typically, state laws provide a preferred order of priority for those who may be considered by the court for appointment. A conservator has the powers and responsibilities of a fiduciary and is held to the standard of care applicable to a trustee. The conservator files an inventory of the estate of the protected person with the court and accountings of the administration of the estate.
Conservatorship is established by petitioning the court. The petition can be filed by the person to be protected, or by any person interested in the estate, affairs, or welfare of the protected person. This appointee could be a parent or guardian, or by any individual or entity adversely affected by improper management of the property and affairs of the protected person. In most states, the person to be protected must be represented by an attorney. The court also typically requires an independent physician’s report. The court may appoint a conservator if it finds that an individual is unable to manage property and financial affairs effectively for reasons including, but not limited to, mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.
A conservatorship terminates upon the death of the protected person or upon a court determination that the disability of the protected person has ceased. The protected person, the personal representative of the protected person, the conservator, or any other interested person or entity may petition the court to terminate the conservatorship. Upon termination, title of the assets passes to the former protected person, or if deceased, as provided by the protected person’s will or trust.
An alternative to the expensive and formal process to create a conservator is for the individual, while competent, to create a durable power of attorney, discussed in a different article. That is almost always the preferable method to assure that one’s assets are protected if one cannot do it on one’s own. One can also nominate a conservator of the person in one’s Will or Trust or in a separate document and the court will normally follow your nomination.
A public fiduciary is a governmental official appointed to serve as guardian, conservator, or personal representative for those individuals or estates with no one else willing or capable of serving. The public fiduciary may file a petition with the court to be named guardian/conservator if the public fiduciary believes such a request is warranted. The court appoints the public fiduciary if the court finds sufficient evidence that a person or estate is in need of the services of the public fiduciary.
California Methodology Conservator of the Person:
A conservatorship is a legal proceeding where one person or entity, is appointed by a judge to manage the affairs of another person. There can be a conservator of the person, or estate or both. A family member of the individual is preferably appointed as conservator based on the relationship to the conservatee. The court can also appoint non-relatives, professional conservators, government agencies and nonprofit corporations. A conservatorship starts with the filing of a petition and other required forms with a Superior Court. Approximately four weeks after the filing of the petition, a court hearing date will be set.
The physical and mental condition of the conservatee determines the type of conservatorship. A general conservatorship applies to all incapacitated persons who are not developmentally disabled. A limited conservatorship would apply if the proposed conservatee was developmentally disabled. A Lanterman-Petris-Short Conservatorship (LPS conservatorship) would apply if the proposed conservatee is a person who is gravely disabled due to a mental disorder or chronic alcoholism.
A conservator may have the powers to determine the residence of the conservatee, consent or withhold consent to medical treatment on behalf of the conservatee, access to confidential records of the conservatee, to contract, and invest the funds of the conservatee.
A general conservatorship terminates on the conservatee’s death or upon a court order. A limited conservator terminates not only by the death of the limited conservatee, or by court order, but also by the death of the limited conservator. An LPS conservatorship terminates automatically after one year or upon the death of the conservatee or court order. However, it can be re-established for additional one year periods.
An LPS conservatorship must be renewed annually. The court reviews a limited conservatorship and general conservatorship one year from establishment and every two years thereafter.
A person who is a danger to self or others can, under certain conditions, be court ordered to a mental hospital. Most states allow commitment to public and private mental hospitals, either as a voluntary patient accepted by the institution or under a court order of involuntary commitment. Legal standards surround the process by which those who are mentally ill can be forced to receive treatment. State laws and rules regarding involuntary commitment are subject to the due process clause of the Fourteenth Amendment, which guarantees the right to be free from governmental restraint and the right not to be confined unnecessarily.
If a guardian, conservator or the person him or herself is not agreeable to a voluntary commitment, state law provisions typically provide a procedure for emergency involuntary hospitalization. In the event of a voluntary hospitalization, a person, or that person’s court-ordered guardian, requests admission to the hospital. The hospital can retain the patient indefinitely or discharge the patient provided the staff determines discharge is in the best interest of the patient and the community. In many states, a patient on a voluntary admission who wishes to leave must give the institution three days notice. This gives the hospital the opportunity to apply for involuntary commitment of the patient, if the staff determines that is appropriate. The facility will then typically retain the patient until the court hearing. For involuntary commitments, most states require a full hearing on the commitment within a limited period of time so that due process is provided. In California involuntary commitment is subject to strict legal requirements.
Section 5150 is a section of the California Welfare and Institutions Code (specifically, the Lanterman–Petris–Short Act or "LPS") which allows a qualified officer or clinician to involuntarily confine a person deemed to have a mental disorder that makes them a danger to him- or herself, and/or others and/or gravely disabled. A qualified officer, which includes any California police officer as well as any specifically designated county clinician, can request the confinement after signing a written declaration.
CALIFORNIA WELFARE AND INSTITUTIONS CODE, SECTION 5150, provides in its second paragraph, "... an application in writing stating the circumstances under which the person's condition was called to the attention of the officer, member of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person has probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled."
The 5150 hold may be written out on Form MH 302, Application for 72 Hour Detention for Evaluation and Treatment.
The Los Angeles County Department of Mental Health (LACDMH) has provided manuals that cover process and procedure for the implementation of WIC 5150-5157. A recent version of the LACDMH LPS Training Manual, stated:
A 5150, or 72-hour hold, is a means by which someone who is in serious need of mental health treatment can be transported to a designated psychiatric inpatient facility for evaluation and treatment for up to 72-hours against their will. While this is one protocol enabled by WIC 5150-5157, it is certainly not the only scenario in which an individual may be detained. Persons can and have been subject to a 72-hour hold who have not been transported in custody to a designated facility. Further, Welfare and Institutions Code (WIC) 5150 is interpreted by the LACDMH LPS Designation Handbook, as ... an application for involuntary admission. According to this interpretation, WIC 5150 is not ... a direct admission form and does not of itself authorize the involuntary admission; it merely gets the individual to the door. Then, as described in WIC 5151: Prior to admitting a person to the facility, the professional person in charge of the facility or his or her designee shall assess the individual in person to determine the appropriateness of the involuntary detention (face to face assessment). This could be interpreted as specifying a required time line consisting of the WIC 5150 application first followed by WIC 5151. Paragraph #2 of WIC 5151, states that: Prior to admitting a person to the facility for 72-hour treatment and evaluation pursuant to Section 5150, the professional person in charge of the facility or his or her designee shall assess the individual in person to determine the appropriateness of the involuntary detention. This time line is not, however, always practiced by the staff of designated LACDMH facilities. If the individual is physically present at the facility, but is not in legal custody, in the sense that no WIC 5150 legal status exists, this individual is nonetheless considered to be at ...the door.... Both the interview to determine probable cause for the purposes of the application in writing, and also the assessment required by WIC 5151, can then be executed simultaneously and documented on the same form, namely MH 302.
This practice then creates two classes of individuals: one class for which the assessment required by WIC 5151 is executed whilst a legal state of involuntary detention already exists, and a second class for which this assessment is done while the individual, not yet in legal custody, still retains liberty. The legality of performing the face to face assessment required by WIC 5151 on individuals for whom ...the involuntary detention ... does not exist, remains to be tested. Note that Form MH 302 contains no specific language pertaining to documentation of WIC 5151.
Section 5150 is not intended to be used to hold a person reported to the police by a non-professional. But it does enable a police officer to detain a subject when the officer has observed the qualifying symptoms in the routine process of a response. This is commonly used to allow the officer to process a subject into the psychiatric facility without requiring criminal processing.
It can also be used to hold an inebriated person in the drunk tank to be released upon sobriety with a citation issued. If there are exigent circumstances that preclude a WIC 5200 process, an officer may respond to the call, but, whenever possible, is to respond in an unmarked car in plain clothes (WIC 5153). The unmarked car and plain clothes recommendation is often ignored by police agencies.
If there are no exigent circumstances, such as an immediate risk to life, then Section 5200, a judicial hold, is the proper section to follow to hold a person suspected by citizens/family of needing assessment. A pre-assessment is done by qualified mental health personnel to establish probable cause for a judge's order of 72 hour hold.
During the period of confinement, a confined individual is evaluated by a mental health professional to determine if a psychiatric admission is warranted. Confinement and evaluation usually occurs in a county mental health hospital or in a designated emergency department. If the individual is then admitted to a psychiatric unit, only a psychiatrist may rescind the 5150 and allow the person to either remain voluntarily or be discharged.
On or previous to the expiration of the 72 hours, the psychiatrist must assess the person to see if they still meet criteria for hospitalization. If so, the person may be offered a voluntary admission. If it is refused, then another hold for up to 14 days, the 5250 (WIC-5250), must be written to continue the involuntary confinement of the person. A Certification Review Hearing (W&I 5256) must occur within four days before a judge or hearing officer to determine whether probable cause exists to support the 5250. Alternatively, the person can demand a writ of habeas corpus to be filed for their release after they are certified for a 5250, and once filed, by law, the person must appear in front of a judge in two (2) days, which is two days sooner than the Certification Review Hearing.
If the person demands to file a writ of habeas corpus right at the time of being given notice of certification, the Certification Review Hearing will not take place. Many patients wait to see how things go at the Certification Review Hearing first, because if the person loses at the Certification Review Hearing, he/she can then take advantage of the right to file writ of habeas corpus and end up having two hearings, instead of just one. If the 72-hour timeframe has elapsed before the person is offered a voluntary admission or placed on the 5250 hold, the person must be immediately released.
A 5150 hold written by a peace officer is valid in any county in California; therefore, a person could theoretically be moved from one county to another according to available resources. When the 5150 hold is written by a designated clinician, the hold is only valid in that county. The designated clinician is only able to write a 5150 hold while present at the facility where they work, unless they work as part of a Psychiatric mobile response team
Contesting the Hold:
The person under a 5150 hold has a limited ability to contest the legality of the hold. While the person has the right of demanding a writ of habeas corpus, the decision of whether to file it often lies with the county public defender. Private counsel for the person may also file such a writ. Since such a writ may takes a day or two to file, the public defender often chooses not to pursue it, as the hold would expire before the anticipated court date.
5150 Criteria for the Hold:
The criteria for writing requires probable cause. These include danger to self; danger to others together with some indication, prior to the administering of the hold, of symptoms of a mental disorder; and/or grave disability, as noted below. The conditions must exist within the context of a mental illness.
- Danger to self: The person must be an immediate threat to themselves, usually by being suicidal. Someone who is severely depressed and wishes to die would fall under this category (though they generally have to have expressed a plan to commit suicide and not just a wish to die).
- Danger to others: The person must be an immediate threat to someone else's safety.
- Gravely disabled:
- Adult (patients over 18 years of age): The person's mental condition prevents him/her from being able to provide for food, clothing, and/or shelter, and there is no indication that anyone is willing or able to assist him/her in procuring these needs. This does not necessarily mean homeless, as a homeless person who is able to seek housing (even in a temporary shelter) when weather demands it would not fall under this category. Also, the mere lack of resources to provide food, clothing, or shelter is not dispositive; the inability must be caused by the psychiatric condition.
- Minor (patients under 18 years of age): The person is unable to provide for his/her food, clothing, and/or shelter or to make appropriate use of them even if these are supplied directly—for example, a psychotic adolescent who refuses to eat because he/she believes his/her parents are poisoning them.
Under WIC 5150-5157 there are two mandatory legal documents, the 5150 application itself and the patient advisement form as required by WIC 5157(c); the latter may be issued in the form of Form MH 303, Involuntary Patient Advisement.
The LA County LPS Designation Manual stipulates that, prior to the completion of the 5150 application, the initiator must conduct and document a face-to-face interview with the patient. On the 5150 application, the initiator is required to ...give sufficiently detailed information to support the belief that the person for whom evaluation and treatment is sought is in fact a danger to others, a danger to himself/herself and/or gravely disabled. The 5150 Application contains the words ...as a result of a mental disorder... but does not stipulate documentation of evidence of ...behavioral symptoms of a mental disorder..., defined in People v. Triplett (1983) as a necessary part of probable cause. The 5150 Application requests no explicit documentation of the required face-to-face interview. WIC 5150-5157 does not stipulate mandatory documentation of paragraph two of WIC 5151 that requires that ... the professional person in charge of the facility or his or her designee shall assess the individual in person to determine the appropriateness of the involuntary detention.... Additionally, when patients who are placed on a 5150 hold for danger to self or danger to others, a notification is filed which results in the person losing the right to purchase or possess firearms for five years. This firearms prohibition may be appealed.
Patient Rights While Under Section 5150:
Patients admitted under section 5150 retain all rights under the Lanterman–Petris–Short Act (begins with WIC-5000) and under the Constitution and other laws. As citizens, patients do not lose their rights by being hospitalized or receiving services. With the exception of being able to freely leave the facility they are placed in, patients have all rights accorded to a voluntarily admitted client. Waivers signed by the patient, responsible relative, guardian, or conservator cannot be used to deny a right. California Code of Regulations, Title 9 Section 865.2 (c); California Welfare & Institutions Code Section 5325.
Cal. Welf. & Inst. Code § 5325 and § 5325.1 codify the statutory patients' rights in California:
Under California law, the following rights may never be denied (Cal. Welf. & Inst. Code § 5325.1):
- The right to treatment services which promote the potential of the person to function independently. Treatment should be provided in ways that are least restrictive of the personal liberty of the individual.
- The right to dignity, privacy, and humane care.
- The right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse, or neglect. Medication may not be used as punishment; for the convenience of staff; or as a substitute for, or in quantities that interfere with, the treatment program.
- The right to prompt medical care and treatment.
- The right to religious freedom and practice.
- The right to participate in appropriate programs of publicly supported education.
- The right to social interaction.
- The right to physical exercise and recreational opportunities.
- The right to be free from hazardous procedures.
Additionally, every mental health client has the right to see and receive the services of a Patients' Rights Advocate. All patients also have the following treatment rights:
- The right to give or withhold informed consent to medical and psychiatric treatment, including the right to refuse medications (WIC-5325.2) except in emergency (W&I 5008 (m)) situations where danger to life is present; or by court order where the patient is found to lack the capacity to give or refuse informed consent via either a Capacity Hearing (see W&I 5332), also known as a Riese hearing, or via conservatorship.
- The right to refuse psychosurgery (Cal. Welf. & Inst. Code § 5326.6).
- The right to refuse electroconvulsive therapy (ECT) unless court ordered (Cal. Welf. & Inst. Code 5326.7.).
- The right to confidentiality (Cal. Welf. & Inst. Code § 5328).
- The right to inspect and copy their medical records, unless specific criteria are met (Cal. Health & Safety Code § 1795).
- The right to have family/friends notified of certain treatment information with patient's permission (Cal. Welf. & Inst. Code § 5328.1).
- The right to an aftercare plan (Cal. Welf. & Inst. Code § 5622).
Deniable Rights If Good Cause:
Psychiatric facilities must also uphold the following specific rights, which can be denied only when "good cause" (i.e. not denied as punishment or granted as reward) exists.
- The right to wear one's own clothing.
- The right to keep and use one's own personal possessions, including toilet articles, in a place accessible to the patient.
- The right to keep and spend a reasonable sum of one's money for small purchases.
- The right to have access to individual storage space for one's own use.
- The right to see visitors each day.
- The right to have reasonable access to phones both to make and receive confidential calls.
- The right to have access to letter-writing materials, including stamps.
- The right to mail and receive unopened letters and correspondence.
“Good Cause” Defined:
Denying a patient's rights requires "good cause". Good cause is defined as the belief of the professional in charge of care for the client that the specific right would cause
- a danger to self or others;
- a serious infringement on the rights of others; or
- serious damage to the facility;
and that there is no less restrictive measure that would protect against those occurrences.
Patient rights cannot be denied as a condition of admission, nor as part of a treatment plan (a doctor may not designate patient rights a 'privilege' or 'punishment'). Any time a right is denied under good cause, it must be documented in the patient's medical record and explained to the patient. The denial must be reviewed regularly and rescinded once good cause no longer exists.
When a right is denied, the reason given for denying the right must have some clear relationship to the right denied. For example, a patient may be denied the right to keep his cigarettes (the right to keep and use personal possessions) because he is burning himself and lighting fires, and lesser restrictive alternatives (supervision during designated smoking times) have failed. This rule prevents facilities from denying rights as a form of punishment; for example, if a patient misbehaves by throwing food at another person, the facility cannot take away personal possessions or deny visitors for the day.
Relief if Right Denied Without Good Cause:
If a right was denied without good cause, a patient can instruct his or her appointed public defender to file an Ex Parte application with the court to restore the right. After filing the application, a hearing is set and an opportunity to be heard by the judge concerning the merits of the case is reviewed; the judge determines if the right will be restored or remain listed as a "good cause" denial. An Ex Parte can bring relief in a matter when a person is deprived of any interest in liberty or property without due process of law.
If someone has been placed on a 14-day hold (5250), they are prohibited from purchasing or possessing firearms under California law, and for life under federal law. (California Welfare and Institutions Code, sections 8100 - 8108)
It is important to realize that the imposition of a conservatorship, guardianship or involuntary commitment is an abridgement of personal rights every bit as restrictive as often encountered with conviction of a crime and resultant incarceration and, at times, far more long lasting. A typical murderer spends less than seven years in prison, Commitment or imposition of a conservatorship can last decades, indeed for the entire life of the person.
While the goal of the restriction of freedom of action is the safety and betterment of the conservatee or person committed, the subsequent restriction of freedom does deserve the various safeguards imposed by law. Individual rights are simply too important in our society to be abridged without full due process.
That said, it is vital to protect the persons in need of conservators or even involuntary commitment. Perhaps two decades ago an elderly woman we had never seen before came into our office carrying a shopping bag. She seemed confused and a bit disheveled and after we gave her a glass of water she stated she wanted to have us hold something for her and handed us the bag. Inside was three hundred thousand dollars in cash. We counted the money, tried to get her name which she would not give us, told her we needed the name of her husband or relative but she became increasingly agitated at our questions. We told her we could not just hold the money without knowing more about her and the source of the money. She said she wanted it back in that case. Handing her the bag, we told her she was being very foolish to wander around with this fortune and again tried to get her to give us the name of a relative or friend but suddenly she arose, took the bag and raced out of the office.
This was a woman who desperately needed help, either a conservator or even commitment but though we quickly called the police and they searched, they were not able to locate her and she disappeared. Three weeks later her body was found in a vacant lot with no shopping bag or money. We later discovered she had been living alone after her husband died, her only child out of the country and had apparently deteriorated slowly but steadily until she began to wander about with all the money from her bank account in that bag. It was only a matter of time until she came to harm.
The balance between due process and protecting those who need it is the goal of the court and the law.