the intersection of 5150 and conservatorship · the intersection of 5150 and conservatorship...
TRANSCRIPT
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The Intersection of 5150 and Conservatorship
Michael Phillips, EsqJewish Family Service of San Diego
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?