When 5150 and Conservatorship Intersect Presented by Mike Phillips, Esq. Jewish Family Service Patient Advocacy Program

What is 5150?

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

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

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

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

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

Types of Conservatorships Probate Conservatorship of the Person Probate Conservatorship of the Estate Limited Conservatorship LPS Conservatorship

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

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

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 conservatorhip, deciding which powers the conservatee will keep, and which powers the conservator will be granted

LPS Conservatorship

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)]

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)]

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

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 firearm

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

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 education

Rights Retained by Conservatee (continued) 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 regulation

Rights Retained by Conservatee 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)]

Get a Copy of the Conservatorship!

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?

How Long Does an LPS Conservatorship Last?

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

What Happens When an LPS Conservatee Ends Up in the ED?

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 possible

Must Law Enforcement Transport LPS Conservatees?

Law Enforcement Transport of LPS Conservatees Conservators can request law enforcement to detain AWOL conservatees and return them to the facility where he has 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

Are LPS Conservatorships Valid in Other Counties, States, or Countries?

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

Weapons Reporting Requirements for Mental Health Clients on LPS Conservatorships

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 ends

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. § ] 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

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

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 battle

Building Cooperative Relationships 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

Contact Info: Mike Phillips, Esq. Director of Patient Advocacy CELL: