the intersection of 5150 and conservatorship · the intersection of 5150 and conservatorship...
TRANSCRIPT
The Intersection of 5150 and Conservatorship
Michael Phillips, EsqJewish Family Service of San Diego
When 5150 and Conservatorship Intersect
Presented byMike Phillips, Esq.
Jewish Family Service Patient Advocacy Program3
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5150 Overview• 5150: Detain and transport to an LPS facility
• 5151: Assessment to determine the appropriateness of the involuntary detention
• 5152: Admission involuntarily, pursuant to the above
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Rights Lost Under 5150• Aside from being detained against the individual’s will, none
• Short duration (up to 72 hours)
• Potential weapons prohibition might kick in, if the patient is admitted pursuant to Danger to Self or Danger to Others
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Advantages of Conservatorship
• More protection against abuse of the conservatee, because the court supervises the conservator
• Conservator must file an inventory listing with the court
• Structured mechanism for managing the incapacitated person’s affairs
• Helpful when the individual is reluctant to accept assistance
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Disadvantages of Conservatorship• Court is heavily involved
• Substantial costs in attorney’s fees, filing fees, and investigator’s fees
• Conservatee’s assets become a matter of public record
• Need to continually return to the court for approval of certain transactions
• Potential for massive loss of individual rights for the conservatee
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Ways to Avoid Conservatorship
• Power of Attorney for Health Care (PAHC)
• Durable Power of Attorney for Financial Matters (DPAFM)
• These need to be arranged for in advance, and entered into with the consent of all parties
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Types of Conservatorships
• Probate Conservatorship of the Person
• Probate Conservatorship of the Estate
• Limited Conservatorship
• LPS Conservatorship
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Probate Conservatorship of the Person
• Conservator appointed for someone who cannot sufficiently provide for his or her personal needs for physical health, food, clothing or shelter
• Judge has discretion to limit the conservator’s powers
• Rights not taken away (unless the judge decides otherwise):
• Marriage• Voting• Consent to Medical Treatment• Wills
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Probate Conservatorship of the Estate
• Conservator appointed to manage another person’s financial matters
• The conservatee must be substantially unable to manage his or her financial resources or resist fraud or undue influence
• Conservatee does not have the legal capacity to enter into transactions
• Court may broaden or restrict the conservatee’s power to enter into transactions
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Limited Conservatorship• Set up for adults with developmental disabilities who cannot fully care for themselves, but who do not need the higher level of care or help given under a general conservatorship
• Generally, the conservator has less authority than a general conservator
• The judge tailors the conservatorship, deciding which powers the conservatee will keep, and which powers the conservator will be granted
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LPS Conservatorship
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Legislative Intent of LPS Conservatorship
• To provide individualized treatment, supervision, and placement [WIC §5350.1]
• The court shall consider the purposes of protection of the public and the treatment of the conservatee [WIC §5350(b)(2)]
• A conservator will not be appointed if the former will not result [WIC §5350(b)(2)]
• Least restrictive setting [WIC §5358(c)(1)]15
LPS Conservatorship Applies to Grave Disability Only
Grave Disability defined:
“A condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.” [WIC §5008(h)(1)(A)]
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Pathway to LPS Conservatorship• 5150 – Can lead to 72‐hour hold
• 5250 – 14‐day hold
• 5270 – 30‐day hold (designed to reduce the number of LPS conservatorships)
• In practice, an individual generally needs to be hospitalized multiple times in a short period of time
• Conservatorship is initiated by treating physician
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Rights Removed From Conservatee
• Possessing a Driver’s License
• Entering into contracts
• Voting
• Refuse or consent to treatment related to grave disability
• Refuse or consent to treatment unrelated to grave disability (the Court must make a specific determination regarding imposition of this disability)
• Possession of a firearm18
Powers Granted to Conservator• Placement in the least restrictive setting (as designated by the court)
• Placement which achieves the purposes of treatment of the conservatee and protection of the public
• Require conservatee to receive treatment related to remedying the underlying grave disability
• Require conservatee to receive routine medical treatment related to remedying the underlying grave disability
• Surgery requires the consent of the conservatee, or a court order
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Rights Retained by Conservatee
Undeniable rights include:• Treatment services which promote the potential of the person to function independently
• Dignity, privacy and humane care
• Freedom from harm, including unreasonable restraint, isolation, medication, abuse or neglect
• Prompt medical care and treatment
• Religious freedom and practice
• Publicly supported education20
Rights Retained by Conservatee(cont.)
• Social interaction and community activities
• Physical exercise and recreational opportunities
• Free from hazardous procedures
• Refuse convulsive treatment
• Refuse psychosurgery
• Access to a Patient Advocate
• Other rights, as specified by regulation21
Rights Retained by Conservatee(cont.)
Deniable rights (with Good Cause) include:
• Wear own clothes, keep personal possessions, spend a reasonable sum of money
• Access to individual storage space
• To see visitors each day
• Make and receive confidential phone calls
• Access to letter writing materials
The rights specified above may not be waived by the conservator. [WIC §5325(1)]
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Get a Copy of the Conservatorship!
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Pro Tips• Does the conservatorship actually exist?• Do you have a hard copy of it?• What does it say?
• Not necessarily what does the conservator say• What does your counsel/risk administration say?
• What kind of conservatorship is it?• Is it expired?• Has it lapsed?• Is the person claiming to be the conservator actually who they claim to be?
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How Long Does an LPS Conservatorship Last?
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Conservatorship Timelines• LPS Temporary Conservatorships are valid for no more than 30 days (unless the conservatee demands a court or jury trial; then, no longer than 6 months)
• LPS Permanent Conservatorships are valid for one year, and are renewable for periods of one year
• Probate Conservatorships are valid indefinately
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What Happens
When an LPS Conservatee Ends Up in the
ED?27
LPS Conservatee in the ED• Make reasonable attempts to determine if a conservatorship is in place
• Utilize 5150 until LPS Conservatorship is confirmed
• If possible, consult with conservator and/or case manager
• EMTALA applies to psychiatric disturbances, and the patient must be stabilized prior to transfer
• Surgery (and presumably similar procedures) are authorized when conservatee faces loss of life or serious bodily injury (apparently without consent of the conservator or conservatee)
• It is always best to obtain consent, if at all possible28
Must Law Enforcement Transport LPS Conservatees?
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Law Enforcement Transport of LPS Conservatees
• Conservators can request law enforcement to detain AWOL conservatees and return them to the facility where they have been placed
• Conservators can request law enforcement to detain conservatees and transport them to “the county designated treatment facility”
• This often causes law enforcement to feel that they are a taxi service
• Compare to 5150 where the individual must appear to the officer to be danger to self, danger to others or gravely disabled in order to transport
• Requests for transport of LPS conservatees must be made in writing and must be accompanied by certified copies of the letters of conservatorship 30
Are LPS Conservatorships Valid in Other
Counties, States or Countries?
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Validity in Other Jurisdictions• LPS Conservatorships should be honored throughout the State of California
• There is much debate as to whether LPS Conservatorships should be given full faith and credit in other states and countries
• Similarly, there is much debate as to whether conservatorships from other states and countries should be given full faith and credit here in California
• Conservatorships from other states and countries can be written very broadly or very narrowly
• Read the non‐LPS conservatorship carefully, to see what powers it bestows
• Consult your risk management and/or counsel• Case by case analysis is the best approach
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Weapons Reporting Requirementsfor Mental Health Clients on LPS
Conservatorships
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WIC CODE §8103(e)(1)
• Persons on LPS conservatorship:
• No person on conservatorship shall purchase or receive, or attempt to purchase or receive, or shall have in his or her possession, custody, or control any firearm or deadly weapon IF:
Court finds that the above would present a danger to self or others
• Weapons ban ends when conservatorship ends34
Federal Law• Federal law provides for a lifetime firearms prohibition for persons who have been “adjudicated as a mental defective” or “committed to a mental institution” [Section 922(g)(4) of 18 U.S.C. and 27 C.F.R. § 478.11]
• Department of Justice interprets this to apply to persons placed on a 5250, 5260, or 5270 and who have lost their certification review hearing
• There is some debate about this interpretation
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Discharge Planning and the LPS Conservatee
• When a facility serving the conservatee determines that treatment there is no longer needed, the conservator shall find alternative placement within 7 days
• This deadline can be extended to 30 days if unusual conditions or circumstances preclude alternative placement
• If placement cannot be found after 30 days, the parties shall confer to resolve the conflict
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Building Cooperative Relationships
• Bring the relevant parties to the table: facilities and treating clinicians, law enforcement, EMS, transport, county administration, consumers and families
• Establish productive community meetings that meet regularly
• Hold each other accountable
• Win the war, not the battle37
Building Cooperative Relationships
(cont.)
• Transparency: Call out community problem areas and expect the entire community to work to solve it
• Bring solutions to the table• Work for solutions within the system,
making better use of existing resources while also advocating for system change
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Questions?
