Conservatorship of K.P.

IN THE SUPREME COURT OF
CALIFORNIA
Conservatorship of the Person and Estate of K.P.
PUBLIC GUARDIAN OF LOS ANGELES,
as Conservator, etc.,
Petitioner and Respondent,
v.
K.P.,
Objector and Appellant.
S258212
Second Appellate District, Division Two
B291510
Los Angeles County Superior Court
ZE032603
June 28, 2021
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Cuéllar,
Kruger, Groban, and Jenkins concurred.
Conservatorship of K.P.
S258212
Opinion of the Court by Corrigan, J.
The Lanterman-Petris-Short Act (LPS Act or Act; Welf. &
Inst. Code, § 5000 et seq.)1 provides one-year conservatorships
for those “gravely disabled as a result of a mental health
disorder or impairment by chronic alcoholism.” (§ 5350.)2 Those
subject to a conservatorship petition are entitled to a court or
jury trial to decide if they are “gravely disabled.” (§ 5350,
subd. (d)(1).) The question here is whether the trier of fact must
find, in addition, that the individual is unwilling or unable to
voluntarily accept treatment. This is an issue of statutory
interpretation on which the Courts of Appeal have differed. We
granted review to resolve the conflict and now hold that capacity
or willingness to accept treatment is a relevant factor to be
considered on the issue of grave disability but is not a separate
element that must be proven to establish a conservatorship.
I. BACKGROUND
The Los Angeles County Superior Court established a
conservatorship for 23-year-old K.P. in May 2008 and renewed
it annually over the next nine years. In April 2018, the county’s
public guardian (Public Guardian) filed another renewal
1
All statutory references are to the Welfare and
Institutions Code unless otherwise stated.
2
Because this case involves only mental disorders, we
generally dispense with further mention of chronic alcoholism.
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Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
petition, alleging K.P. remained gravely disabled. This time,
K.P. demanded a jury trial.
A psychologist from K.P.’s residential facility testified that
he suffered from schizophrenia, with auditory hallucinations
and paranoid delusions. For example, on the morning of trial he
asked to enter a witness protection program because he believed
a fellow resident was planning to attack him. In another
incident, K.P. chased and threatened someone he believed had
intentionally hit him with a basketball. He could not be
redirected and was hospitalized. K.P. also displayed “grossly
disorganized behaviors,” lack of motivation, and difficulty
speaking and socializing. The psychologist concluded K.P.
lacked significant insight into his disorder. He minimized his
symptoms and believed they were caused by medications. His
mother had expressed the same belief. K.P. resisted taking his
prescriptions or participating in therapy and other services. The
psychologist concluded K.P. could not provide for his basic needs
without medication and did not believe he would take them
consistently or correctly without a conservator’s supervision.
The day before trial, K.P. almost gave himself a double dose of
one potentially toxic pharmaceutical. The psychologist believed
K.P. needed round-the-clock supervision and lacked the
initiative and insight necessary to obtain treatment himself.
Although he had opportunities to do so, K.P. had never left the
facility without his therapist or mother.
K.P.’s mother understood that he had a mental illness. If
he were released from the conservatorship, she testified that she
would help him take his medications and attend therapy
appointments. She could not provide housing but would help
him find a place to live.
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Opinion of the Court by Corrigan, J.
K.P. also testified. He had not lived outside a hospital or
treatment facility since 2013. After some conflicting answers,
he agreed to stay in his current placement until he could find a
place to live. K.P.’s mother had previously been his conservator
but later became homeless and moved away. K.P. agreed he
needed a psychiatrist and said he would see a therapist if
released, but he denied having any mental illness. He thought
his problems might stem from a childhood brain injury. K.P.
asserted he did better without his psychiatric drugs and said he
would not take them if released from the conservatorship. To
supplement his Social Security benefits, K.P. planned to become
an entrepreneur.
The court gave two Judicial Council of California Civil
Jury Instructions (CACI) relevant to the issue here. CACI No.
4000, as given, stated: “The Office of the Public Guardian claims
that [K.P.] is gravely disabled due to a mental disorder and
therefore should be placed in a conservatorship. In a
conservatorship, a conservator is appointed to oversee, under
the direction of the court, the care of persons who are gravely
disabled due to a mental disorder. To succeed on this claim, the
Office of the Public Guardian must prove beyond a reasonable
doubt all of the following: [¶] (1) That [K.P.] has a mental
disorder; and [¶] (2) That [K.P.] is gravely disabled as a result
of the mental disorder.”
CACI No. 4002, as given, explained the meaning of
“gravely disabled”: “The term ‘gravely disabled’ means that a
person is presently unable to provide for his or her basic needs
for food, clothing, or shelter because of a mental disorder.
[¶] Psychosis, bizarre or eccentric behavior, delusions or
hallucinations are not enough, by themselves, to find that [K.P.]
is gravely disabled. He must be unable to provide for the basic
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Opinion of the Court by Corrigan, J.
needs of food, clothing, or shelter because of a mental disorder.
[¶] If you find [K.P.] will not take his prescribed medication
without supervision and that a mental disorder makes him
unable to provide for his basic needs for food, clothing, or shelter
without such medication, then you may conclude [K.P.] is
presently gravely disabled. [¶] In determining whether [K.P.] is
presently gravely disabled, you may consider evidence that he
did not take prescribed medication in the past. You may
consider evidence of his lack of insight into his medical
condition. [¶] In determining whether [K.P.] is presently
gravely disabled, you may not consider the likelihood of future
deterioration or relapse of a condition. [¶] In determining
whether [K.P.] is presently gravely disabled, you may consider
whether he is unable or unwilling voluntarily to accept
meaningful treatment.” (Italics added.)
K.P. requested a modification of CACI No. 4000 to require,
as a separate element, a finding that he was “unwilling or
unable voluntarily to accept meaningful treatment.” He argued
the final sentence of CACI No. 4002 directing the jury’s
attention to this issue was inadequate because it was “thrown
in at the bottom of [a] less consequential later jury instruction.”
The court denied the request, observing that resistance to
voluntary treatment is appropriately considered as an aspect of
grave disability but is not a separately required element that
must be proven.
The jury found that K.P. was gravely disabled, and the
reappointment petition was granted. On appeal, K.P.
challenged the refusal to modify CACI No. 4000. The Court of
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Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
Appeal concluded there was no error. We granted review and
now reach the same conclusion.3
II. DISCUSSION
Although couched as a complaint about jury instructions,
K.P. essentially claims that a finding of unwillingness or
inability to accept voluntary treatment is required for a
conservatorship to be established. This is a legal question
subject to de novo review. (John L., supra, 48 Cal.4th at p. 142;
see Conservatorship of P.D. (2018) 21 Cal.App.5th 1163, 1167.)
Our goal in construing the LPS Act is to effectuate the
Legislature’s intent. (John L., at p. 143.) We consider
individual statutes in the context of the entire Act so that each
part may be harmonized and given effect. (See Moyer v.
Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230;
Conservatorship of Joseph W. (2011) 199 Cal.App.4th 953, 963.)
A. Overview of the LPS Act
The LPS Act has many purposes, including “end[ing] the
inappropriate, indefinite, and involuntary commitment of
persons with mental health disorders” (§ 5001, subd. (a)),
“provid[ing] prompt evaluation and treatment” (id., subd. (b)),
and “provid[ing] individualized treatment, supervision, and
3
The conservatorship challenged here ended, rendering the
appeal technically moot. This problem frequently arises
because a conservatorship’s duration is short, compared to the
appellate process. (See, e.g., Conservatorship of John L. (2010)
48 Cal.4th 131, 142, fn. 2 (John L.).) The Court of Appeal
concluded the issue K.P. raises is capable of repetition but likely
to evade review. (Conservatorship of K.P. (2019) 39 Cal.App.5th
254, 257, fn. 2; see Conservatorship of David L. (2008) 164
Cal.App.4th 701, 709.) We agree and elect to decide this
otherwise moot appeal.
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Opinion of the Court by Corrigan, J.
placement services by a conservatorship program” (id.,
subd. (e)). The Act defines persons as “ ‘gravely disabled’ ” if
they are unable to provide for basic personal needs of food,
clothing, or shelter, as a result of a mental disorder. (§ 5008,
subd. (h)(1)(A); see § 5350, subd. (e).)
The overall statutory scheme describes a detailed,
calibrated system for intervention when circumstances indicate
a person may be suffering from a mental health disorder. In
addition to conservatorships, the Act permits 3-day, 14-day, and
30-day involuntary detentions for intensive treatment.4
1. Chapter 2: Involuntary Detentions
Under chapter 2 of the Act, those gravely disabled by a
mental health disorder may be held for up to 72 hours for
evaluation and treatment. (§ 5150, subd. (a).) Before such a
detention can begin, a professional must assess whether the
person “can be properly served without being detained.” (Id.,
subd. (c).) In such a case, services must be provided “on a
voluntary basis.” (Ibid.) After 72 hours, the person may be
detained for up to 14 days of intensive treatment if three
conditions are met: (1) a professional has found that the person
is gravely disabled due to a mental health disorder (§ 5250,
subd. (a)); (2) the facility providing treatment agrees to admit
the person (id., subd. (b)); and (3) the person “has been advised
of the need for, but has not been willing or able to accept,
treatment on a voluntary basis” (id., subd. (c)). This 14-day
4
Our discussion is confined to the provisions for persons
gravely disabled due to a mental health disorder, but such
detentions are also available for individuals who are imminently
dangerous to themselves or others, or are impaired by chronic
alcoholism. (See §§ 5150, 5250, 5260, 5300.)
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Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
period can be extended by up to 30 days if the professional staff
finds that the person remains both gravely disabled and
“unwilling or unable to accept treatment voluntarily.”
(§ 5270.15, subd. (a)(2).)
Someone certified for a 14-day or 30-day detention has the
right to a prompt certification review hearing. (§§ 5254, 5256,
5270.15, subd. (b).) The only question to be decided at such a
review hearing is whether the person is gravely disabled by a
mental health disorder (see § 5256.5). If there is insufficient
probable cause to find grave disability, the person must be
released. (§§ 5256.5–5256.6.)5
As an alternative to a certification review hearing, those
detained have the right to habeas corpus review. (§ 5275.)
Unlike a review hearing, habeas review tests all the initial
certification requirements. The court must order an immediate
release if it finds that the detained person is not gravely
disabled, or “had not been advised of, or had accepted, voluntary
treatment,” or that the facility is not designated by the county
or is not equipped and staffed to provide intensive treatment.
(§ 5276, 2d par.) These statutes apply only to chapter 2
detentions, however, and not chapter 3’s more lengthy
conservatorships. Although habeas corpus relief may be
appropriate “in extraordinary circumstances” (In re Gandolfo
(1984) 36 Cal.3d 889, 899), ordinarily the statutory rehearing
provisions (§ 5364; see also § 5358.3) and the right to appeal
5
Release is also required at the end of an involuntary
detention period, unless the gravely disabled person is certified
for an additional 14 or 30 days of intensive treatment, is the
subject of a petition for conservatorship or confinement of a
dangerous person (see § 5300), or agrees to receive treatment
voluntarily. (§ 5257, subd. (b).)
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Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
from a conservator’s appointment or reappointment provide
available and adequate remedies for aggrieved conservatees.
(Gandolfo, at pp. 898–900; see Michelle K. v. Superior Court
(2013) 221 Cal.App.4th 409, 433; 6 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2020) Criminal Writs, § 25, pp. 630–631.)
2. Chapter 3: Conservatorships
Chapter 3 of the Act goes on to provide for the imposition
of a conservatorship under specifically described circumstances.
A “series of temporary detentions may culminate in a proceeding
to determine whether the person is so disabled that he or she
should be involuntarily confined for up to one year. (§§ 5350,
5361.) Because of the important liberty interests at stake,
correspondingly powerful safeguards protect against erroneous
findings.” (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541
(Ben C.).) Conservatorships can involve confinement and other
“disabilities” that may be imposed by the court, such as the loss
of driving privileges, the right to enter contracts or vote, and the
right to refuse medical and other treatments. (§ 5357.)
Section 5352 sets out the requirements for a professional
recommendation to initiate conservatorship proceedings. The
first paragraph of section 5352 addresses recommendations for
individuals who have already been detained for evaluation and
treatment under chapter 2. When the professional in charge of
an agency providing comprehensive evaluation, or of a facility
providing intensive treatment, “determines that a person in his
or her care is gravely disabled as a result of mental disorder or
impairment by chronic alcoholism and is unwilling to accept, or
incapable of accepting, treatment voluntarily, he or she may
recommend conservatorship to the officer providing
conservatorship investigation of the county of residence of the
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Opinion of the Court by Corrigan, J.
person prior to his or her admission as a patient in such facility.”
(§ 5352, 1st par., italics added.)6 Thus, before a professional
may recommend the initiation of a conservatorship for a
detained inpatient, that professional must conclude the person
is not willing or able to consent to voluntary treatment. This
requirement recognizes that if a person is able and willing to
accept inpatient treatment, there may be no need to pursue the
additional constraints of a conservatorship. It also recognizes
that when a person is committed for inpatient treatment, but
unwilling or unable to consent to that treatment, an additional
measure of authority over the person may be necessary for
treatment to be successful and for other services, like general
medical care, to be provided.
The recommendation standards are different for those
presently receiving outpatient treatment, however. The second
paragraph of section 5352, which addresses outpatients, does
not mention a willingness or ability to accept treatment. Under
that paragraph, the professional agency in charge of “providing
comprehensive evaluation or a facility providing intensive
treatment, or the professional person in charge of providing
mental health treatment at a county jail, or his or her designee,
may recommend conservatorship for a person without the
person being an inpatient in a facility providing comprehensive
evaluation or intensive treatment, if both of the following
conditions are met: (a) the professional person[,] or another
professional person designated by him or her[,] has examined
and evaluated the person and determined that he or she is
6
These requirements also apply when conservatorship is
considered for someone who is already subject to a Probate Code
conservatorship. (§ 5350.5, subd. (a).)
9
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Opinion of the Court by Corrigan, J.
gravely disabled; (b) the professional person or [designee] has
determined that future examination on an inpatient basis is not
necessary for a determination that the person is gravely
disabled.”7 The distinction between the two paragraphs reflects
that those not in a county jail are entitled to remain on
outpatient status if services can be effectively provided on a
voluntary basis (see §§ 5150, subd. (c) [72-hour period], 5250,
subd. (c) [14-day period], 5270.15, subd. (b) [30-day period]),
even when a conservatorship is necessary.8
Under either paragraph of section 5352, the professional’s
recommendation simply starts the conservatorship process. If
the county’s investigative office agrees with the
recommendation, it initiates court proceedings. (§ 5352.) The
county then conducts a comprehensive investigation of available
alternatives to conservatorship, examining “all relevant aspects
of the person’s medical, psychological, financial, family,
7
If an inpatient placement is necessary for a proper
determination of grave disability, the detention process under
chapter 2 may be initiated.
8
K.P. offers a different reading of section 5352. He asserts
the statute’s second paragraph merely provides an alternate
mechanism for outpatient recommendations and does not alter
the substantive standards set forth in the first paragraph. In
particular, he contends the first paragraph’s requirements
should be incorporated into the second paragraph. This
interpretation is contradicted by the statutory language, which
clearly establishes only two requirements for an outpatient
recommendation and does not reference or incorporate the first
paragraph’s inpatient recommendation requirements. More
importantly, as will be discussed, nothing in section 5352
evinces a legislative intent to incorporate the guidelines for a
treatment provider’s initiation of conservatorship proceedings
into the factual findings required to impose a conservatorship.
10
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
vocational, and social condition, and information obtained from
the person’s family members, close friends, social worker, or
principal therapist.” (§ 5354, subd. (a).) After this
investigation, the county is empowered to “recommend
conservatorship to the court only if no suitable alternatives are
available.” (Ibid.) A conservator may then be appointed if the
person is found to be gravely disabled as a result of a mental
health disorder. (§ 5350.)
Proposed conservatees have the right to a jury trial to
determine whether they are gravely disabled. (§ 5350,
subd. (d)(1).) The determination must be unanimous and upon
proof beyond a reasonable doubt. (Conservatorship of Early
(1983) 35 Cal.3d 244, 248 (Early); Conservatorship of Roulet
(1979) 23 Cal.3d 219, 235 (Roulet).) If grave disability is found,
the court appoints a conservator (§ 5350), imposes disabilities
on the conservatee as needed (§ 5357), and determines the least
restrictive appropriate placement (§ 5358, subd. (a)(1)(A)). The
conservatee’s home, or that of a relative, is to be given first
priority, as an alternative to confinement. (§ 5358, subd. (c)(1).)
A conservatorship automatically ends after one year and may be
reestablished only by a new petition (§ 5361), subject to the
same jury trial rights (see § 5350, subd. (d); Roulet, at pp. 225–
226; Baber v. Superior Court (1980) 113 Cal.App.3d 955, 959).
The court must terminate a conservatorship before the
one-year period expires, however, if a progress review
determines that “the goals [of treatment] have been reached and
the person is no longer gravely disabled.” (§ 5352.6, 2d par.) In
addition to the right to appeal the judgment imposing
conservatorship, conservatees may twice petition for rehearing
on their status as a conservatee. (§ 5364.) At such a rehearing,
petitioners need only prove by a preponderance of the evidence
11
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
that they are no longer gravely disabled. (John L., supra, 48
Cal.4th at p. 152.) A conservatee’s willingness or ability to
accept voluntary treatment is not a basis for rehearing (see
§ 5364) or for an early conservatorship termination (see
§ 5352.6).
If a conservatorship is still needed at the end of the one-
year term, the conservator may petition for reappointment.
(§ 5361.) Such a petition must include the opinion of two
physicians, or other described professionals, “that the
conservatee is still gravely disabled as a result of mental
disorder or impairment by chronic alcoholism.” (Id., 1st par.)
Section 5361 focuses on grave disability alone and makes no
mention of the conservatee’s amenability to voluntary
treatment. A “reestablishment hearing is conducted according
to the same rules that govern the initial establishment of a
conservatorship. [Citations.] The state has the burden to prove
beyond a reasonable doubt that the conservatee remains gravely
disabled.” (Conservatorship of Deidre B. (2010) 180 Cal.App.4th
1306, 1312; see § 5350, subd. (d)(3).)
B. Statutory Analysis
Reading chapter 3’s provisions together, it is clear the Act
requires consideration of willingness or ability to accept
voluntary treatment only when a professional recommends the
initiation of conservatorship proceedings for a person who is
currently being treated as an inpatient (§ 5352) or is subject to
a Probate Code conservatorship (§ 5350.5). Applicable
provisions do not mention such a requirement for outpatient
recommendations (see § 5352) or for reappointment petitions
(see § 5361).
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Opinion of the Court by Corrigan, J.
Nor does the Act make amenability to voluntary treatment
an issue that must be separately decided at trial. Section 5350
authorizes the court to appoint a conservator “for a person who
is gravely disabled as a result of a mental health disorder.” (See
also § 5361 [authorizing reappointments].) It grants “the right
to demand a court or jury trial on the issue of whether [the
subject] is gravely disabled.” (§ 5350, subd. (d)(1), italics added;
see also § 5352.1 [temporary conservatorship].) Section 5350
thus expressly limits conservatorship trials to the issue of grave
disability. It does not mention whether the proposed
conservatee is willing or able to accept treatment voluntarily.
This subject is also absent from the statutory definition of
“gravely disabled,” which considers only whether the “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.”
(§ 5008, subd. (h)(1)(A); see § 5350, subd. (e)(1).)9 Read
together, sections 5350 and 5008 establish only two
requirements for the creation of a conservatorship: (1) The
subject has a mental health disorder; and (2) as a result of the
disorder, the subject is unable to meet basic survival needs.
The Legislature amended section 5350 in 1989 to clarify
that there is no grave disability if a proposed conservatee can
survive safely with the assistance of responsible friends, family
members, or others willing and able to help meet these basic
9
It should be recalled, however, that those potentially
subject to conservatorship will often have been found unwilling
or unable to accept treatment by the professional initially
recommending conservatorship (§ 5352) and as part of the
involuntary detention process (see §§ 5150, subd. (c), 5250,
subd. (c), 5270.15, subd. (a)), in which the determination is
subject to habeas corpus review (§ 5275).
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needs. (See § 5350, subd. (e), as amended by Stats. 1989,
ch. 999, § 2, p. 3484.) Notably, the modification did not amend
section 5350, or any other provision of the Act, to require
separate findings on a person’s amenability to voluntary
treatment as a prerequisite to imposition of a conservatorship.
Theoretically, someone who is willing and able to accept
voluntary treatment may not be gravely disabled if that
treatment will allow the person to meet the needs for food,
clothing, and shelter. Under the statutory scheme, however,
this is an evidentiary conclusion to be drawn by the trier of fact.
If credible evidence shows that a proposed conservatee is willing
and able to accept treatment that would allow them to meet
basic survival needs, the fact finder may conclude a reasonable
doubt has been raised on the issue of grave disability, and the
effort to impose a conservatorship may fail. It may be necessary
in some cases for the fact finder to determine whether the
treatment a proposed conservatee is prepared to accept will
sufficiently empower them to meet basic survival needs. In
some cases of severe dementia or mental illness, there may
simply be no treatment that would enable the person to “survive
safely in freedom.” (Early, supra, 35 Cal.3d at p. 255; see
Conservatorship of Symington (1989) 209 Cal.App.3d 1464, 1467
(Symington).)10 As a practical matter, evidence about
amenability to voluntary treatment will generally be in the
proposed conservatee’s own hands. Placing a burden on
10
K.P. has presented no evidence or argument suggesting he
was willing to submit to inpatient treatment. Generally, the
relevant question in a conservatorship trial is whether the
proposed conservatee is able to “survive safely in freedom,”
either alone or with the willing help of others. (Early, supra, 35
Cal.3d at p. 255, italics added.)
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counties “to negate all reasonable doubts as to the possible
existence of” a treatment the person might voluntarily accept
would be counter-productive and potentially contrary to the
goals of the Act. (Early, at p. 254.)11
Our reading of the statutes is consistent with statements
in a number of conservatorship cases observing that the “only”
question at trial is whether the proposed conservatee is unable
to provide for essential needs due to a mental illness. (Roulet,
supra, 23 Cal.3d at p. 232; Conservatorship of P.D., supra, 21
Cal.App.5th at p. 1168; see Conservatorship of Jesse G. (2016)
248 Cal.App.4th 453, 460–461.) However, K.P. points to other
cases to support a contrary conclusion. We now address these
arguments.
C. K.P.’s Argument and Reliance on Contrary Authority
In support of his position that inability or unwillingness
to accept voluntary treatment must be separately proven at
trial, K.P. points to a single statutory provision and early cases
construing it. He cites section 5352, which, as noted, requires a
professional determination of such inability or unwillingness
before the professional recommends conservatorship for a
11
Similarly, a person who can survive safely with the
responsible help of others is not gravely disabled. If proper
evidence of such assistance is presented, the county must prove
that the assistance would not enable the proposed conservatee
to survive safely without involuntary detention. But the
county’s burden on this topic extends only to assistance put at
issue by the evidence. Section 5350, subdivision (e)(2) requires
that, “unless they specifically indicate in writing their
willingness and ability to help, family, friends, or others shall
not be considered willing or able to provide this help.” The mere
possibility of assistance from others is not sufficient to defeat a
conservatorship.
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Opinion of the Court by Corrigan, J.
person receiving inpatient treatment. As explained above, this
reliance is misplaced. By its terms, section 5352 speaks only to
a professional decision to recommend that a conservatorship be
established. That recommendation, if accepted, is followed by a
structured investigation that may culminate in a trial on grave
disability and, if a conservatorship is imposed, on the court’s
determination whether confinement is necessary.
K.P. relies on two cases from the 1980s that held
resistance to voluntary treatment is an additional element that
must be proven before conservatorship can be imposed.
Conservatorship of Davis (1981) 124 Cal.App.3d 313 (Davis) was
a public guardian’s appeal from a finding that the proposed
conservatee was not gravely disabled. The trial court had given
a special instruction at Davis’s request stating, “ ‘before you may
consider whether Mary Davis is gravely disabled you must first
find that she is, as a result of a mental disorder, unwilling or
unable to accept treatment for that mental disorder on a
voluntary basis.’ ” (Id. at p. 319.) It also gave a special
instruction directing that the jury could not find Davis gravely
disabled if she was capable of surviving safely with the help of
willing family members. (Ibid.) The Court of Appeal concluded
it was not error to give these instructions. (Id. at p. 329.) It
attempted to harmonize the various conservatorship statutes by
concluding that any trial on conservatorship encompassed
review of all preceding steps, including initiation (§ 5352) and
investigation (§ 5354). “Thus, although section 5350 states that
the issue at trial is ‘whether [the person] is gravely disabled,’ ”
the court reasoned, “it appears from a reading of the entire act
that this phrase must be broadly construed to include the
determination of whether the establishment of a
conservatorship is necessary in light of all the relevant facts.”
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(Davis, at p. 323.) Drawing on considerations in sections 5352
and 5354, Davis concluded the LPS statutes “necessarily require
the trier of fact . . . to determine the question of grave disability,
not in a vacuum, but in the context of suitable alternatives, upon
a consideration of the willingness and capability of the proposed
conservatee to voluntarily accept treatment and upon
consideration of whether the nondangerous individual is
capable of surviving safely in freedom by himself or with the
help of willing and responsible family members, friends or other
third parties.” (Davis, at p. 325.)12
Two years later, we approved one of the Davis holdings:
that grave disability cannot be established if the person can
safely survive with the capable assistance of others. (Early,
supra, 35 Cal.3d 244.) That holding was consistent with United
States Supreme Court precedent that a state “ ‘cannot
constitutionally confine . . . a nondangerous individual who is
capable of surviving safely in freedom by himself or with the
help of willing and responsible family members or friends.’ ” (Id.
at pp. 251–252, quoting O’Connor v. Donaldson (1975) 422 U.S.
563, 576.)
12
The Davis decision was essentially followed in
Conservatorship of Baber (1984) 153 Cal.App.3d 542, which
involved similar instructions. Although it approved the
instructions in principle, however, Baber found error in the
voluntary assistance instruction’s phrasing because it asked
only if the proposed conservatee was “unwilling” to accept
voluntary treatment, not whether he was “ ‘unwilling or
unable’ ” to do so. (Id. at p. 552, italics omitted.) Thus, a verdict
of no grave disability would have been required if the jury found
merely that Baber was willing to accept treatment, even if he
were incapable of doing so. (Ibid.)
17
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
Early concluded this constitutional principle had been
incorporated into the LPS Act (Early, supra, 35 Cal.3d at p. 252)
and reasoned that section 5008’s definition of grave disability
“was intended to encompass a consideration of whether the
person could provide these basic needs with or without the
assistance of willing and responsible family members, friends,
or other third parties.” (Early, at p. 254.) The principle was
later codified by legislative amendment of section 5350. (See
§ 5350, subd. (e), as amended by Stats. 1989, ch. 999, § 2,
p. 3484.) Notably, however, Early stopped short of imposing a
potentially “insuperable” burden on public guardians “to negate
all reasonable doubts as to the possible existence of third party
aid.” (Early, at p. 254.) Early held only that the trier of fact
“must consider the availability of third party assistance” on the
issue of grave disability “if credible evidence of such assistance
is adduced” at trial, and that an instruction regarding this
evidence must be given upon the proposed conservatee’s request
if the case is tried to a jury. (Ibid., italics added.) Of course, the
burden of proof remains on the public guardian. If a proposed
conservatee chooses to produce evidence on this topic, the
question is whether any such evidence casts the issue of grave
disability into reasonable doubt.
Early did not address Davis’s related holding about a
voluntary treatment element. Although the trial court had
refused to give an instruction like the one in Davis, requiring a
finding on voluntary treatment before consideration of grave
disability, we did not decide whether that refusal was erroneous
because the evidence showed Early had consistently refused
treatment for his disorder. (Early, supra, 35 Cal.3d at pp. 255–
256.) Nevertheless, there are parallels between the third party
assistance considered in Early and acquiescence to voluntary
18
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
treatment, in that treatment professionals may provide
assistance that enables a person to meet survival needs. As we
held with regard to third party assistance in Early, evidence of
a proposed conservatee’s amenability to voluntary treatment is
relevant and should generally be admitted for the fact finder’s
consideration. (See id. at p. 254; see also Davis, supra, 124
Cal.App.3d at p. 325.) Such evidence will defeat a
conservatorship if it raises a reasonable doubt about whether
the person is gravely disabled.
K.P. also relies on Conservatorship of Walker (1987) 196
Cal.App.3d 1082 (Walker). There, the jury was instructed: “ ‘If
you find that John Thomas Walker can survive safely in freedom
by himself or with the help of this available, willing and
responsible family member, friend or other third party and that
John Thomas Walker is willing and capable of accepting
voluntary treatment, then you must find that John Thomas
Walker is not gravely disabled.’ ” (Id. at p. 1091, italics
omitted.) The Court of Appeal found fault with this instruction.
(Id. at p. 1092.) Relying on section 5352 and Davis, it held that
a conservatorship may be established only upon proof of both
grave disability, as defined in section 5008, and unwillingness
or inability to accept voluntary treatment. (Walker, at pp. 1092–
1093.) Because Davis established that a “proposed conservatee
has the right to have a jury determine all the issues relevant to
the establishment of the conservatorship” (Walker, at p. 1092,
citing Davis, supra, 124 Cal.App.3d at p. 324), the court
reasoned: “The jury should determine if the person voluntarily
accepts meaningful treatment, in which case no conservatorship
is necessary. If the jury finds the person will not accept
treatment, then it must determine if the person can meet his
basic needs on his own or with help, in which case a
19
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
conservatorship is not justified.” (Walker, at pp. 1092–1093.)
Because the instruction at issue allowed Walker’s jury to reject
conservatorship only if it found that Walker was both capable of
meeting his basic needs and willing and able to accept voluntary
treatment, the court held it was erroneous. (Id. at p. 1093.)
As K.P. acknowledges, other cases have declined to follow
Davis and Walker. The first, Symington, supra, 209 Cal.App.3d
1464, involved a bench trial. The trial court found the proposed
conservatee gravely disabled and observed that it was
unnecessary to decide in addition whether she was willing or
able to accept voluntary treatment. (Id. at p. 1466.) Symington
challenged the absence of this finding on appeal, asserting that
grave disability “ ‘by definition includes an unwillingness and/or
inability on the part of the proposed conservatee to voluntarily
accept treatment for the mental disorder . . . .’ ” (Id. at p. 1467.)
The Court of Appeal expressed doubt that a finding of
unwillingness or inability to accept treatment was required,
explaining that this language is not found elsewhere in the
conservatorship statutes but only in section 5352, a provision
“apparently designed to allow treatment facilities to initiate
conservatorship proceedings at the time a patient is accepted
where the individual may prove uncooperative. It appears to
have been enacted for that limited purpose, not as an additional
element to be proved to establish the conservatorship itself.”
(Symington, at p. 1467.) The court concluded section 5352’s
reference to unwillingness or inability to accept voluntary
treatment “is not intended to be a legal term, but is a standard
by which mental health professionals determine whether a
conservatorship is necessary.” (Symington, at p. 1468.)
Sensitive to the facts of the case before it, which involved an
octogenarian with severe intellectual and memory impairment
20
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
from senile dementia (id. at p. 1466), the court observed that
“many gravely disabled individuals are simply beyond
treatment. Under the interpretation of the statutory scheme
urged upon us, they presumably could not be the subject of an
LPS Act conservatorship at all.” (Id. at p. 1467.)
The issue did not resurface for 30 years, until K.P.’s appeal
here and Conservatorship of D.P. (2019) 41 Cal.App.5th 794,
review granted and held February 11, 2020. In both cases, the
juries were given a version of CACI No. 4000 that did not
include unwillingness or inability to accept voluntary treatment
as a required element for conservatorship. (D.P., at p. 799;
Conservatorship of K.P., supra, 39 Cal.App.5th at p. 263.)13
However, both juries were also given a modified version of CACI
No. 4002, which explained that they could consider willingness
or ability to accept voluntary treatment in deciding whether the
proposed conservatees were gravely disabled. (D.P., at p. 799;
K.P., at p. 263.) On appeal, the courts determined these
instructions accurately reflected the law. The court here found
Symington’s reasoning persuasive and agreed that section 5352
does not require additional proof. (K.P., at p. 268.) The Court
of Appeal in D.P. also agreed with Symington’s statutory
analysis. (D.P., at pp. 802–803.) It further noted that
section 5352 does not apply to reappointment petitions, and the
applicable statute requires only a finding that the person
“ ‘remains gravely disabled.’ ” (D.P., at p. 804; see § 5352.)
13
The Judicial Council’s form instruction for CACI No. 4000
includes this requirement in brackets. A use note explains, with
citations to Symington, supra, 209 Cal.App.3d at page 1467 and
Davis, supra, 124 Cal.App.3d at page 328, that “[t]here is a split
of authority as to whether element 3 is required.” (Use Note to
CACI No. 4000 (2020) p. 976.)
21
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
Thus, even if a finding about amenability to voluntary
treatment were required in the initial appointment of a
conservator, there was no statutory basis for imposing it in
reappointment proceedings. (D.P., at pp. 803–804.)
We agree with these recent decisions that Davis and
Walker are not persuasive as to the role that acceptance of
voluntary treatment appropriately plays in a conservatorship
trial. As in Early, Davis was partially correct to the extent it
held a trier of fact may consider a proposed conservatee’s
openness to treatment when evaluating whether the constraints
of conservatorship are necessary under all attendant
circumstances. Naturally, a trier of fact can consider all
relevant evidence, which is defined as that “having any tendency
in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code,
§ 210.) Evidence that a person is willing and able to accept
meaningful treatment is certainly relevant to the ultimate
question whether a conservatorship is necessary. But there is a
difference between relevant evidence and the elements that
must be proven to determine an action. In a conservatorship
trial, the only elements that must be proven are that the person
(1) suffers from a mental health disorder that (2) renders him or
her gravely disabled. (Welf. & Inst. Code, § 5350.) Evidence
bearing on the person’s ability and willingness to accept
treatment may assist the fact finder in resolving that question.
But such willingness is neither an element that must be proven
nor itself dispositive of the issue of grave disability.14
14
In this way, amenability to treatment is similar to the role
of motive in a homicide trial. Motive is not an element of any
homicide offense; however, evidence of motive may be relevant
22
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
Particularly for those suffering from mental illness, openness to
treatment may not be a fixed status. It may wax and wane
depending on many variables, including medication status and
the particulars of housing status or confinement. Evidence on
the topic may also be disputed, or of varying degrees of
persuasiveness. Early’s caution against imposing on public
guardians the insuperable burden of disproving a negative is
equally applicable here. (See Early, supra, 35 Cal.3d at p. 254.)
Thus, the Davis decision went too far to the extent it called
for proof of an additional element not found in the statutory
definition. Courts may not expand statutory language under the
guise of interpretation. (In re Miller (1947) 31 Cal.2d 191, 199;
see Code Civ. Proc., § 1858.) The Walker court strayed even
further afield from the statutory framework. It endorsed a two-
step procedure under which a jury would not even consider the
issue of grave disability if it concluded the proposed conservatee
was willing and able to accept treatment. (See Walker, supra,
196 Cal.App.3d at pp. 1092–1093.) These cases did not have the
benefit of the Legislature’s 1989 amendment of section 5350,
which codified the holdings in Davis and Early on third party
assistance but did not embrace the additional expansion Davis
suggested for amenability to voluntary treatment. They also
upset the carefully calibrated statutory approach through which
the Legislature has endeavored to protect both the mentally ill
and the public, and to ensure that those in need can receive
prompt, appropriate treatment tailored to their individual
condition and circumstances. Conservatorship of Davis, supra,
124 Cal.App.3d 313, Conservatorship of Walker, supra, 196
to show the offender’s mental state, which is a required element.
(See People v. Smith (2005) 37 Cal.4th 733, 740–742.)
23
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
Cal.App.3d 1082, and Conservatorship of Baber, supra, 153
Cal.App.3d 542 are therefore disapproved to the extent they are
inconsistent with the decision here.
D. Due Process
Finally, even assuming the LPS Act does not require it,
K.P. contends state and federal due process principles prohibit
the appointment of a conservator unless the state can prove
beyond a reasonable doubt that the conservatee is unwilling or
unable to accept treatment voluntarily.
“The liberty interests at stake in a conservatorship
proceeding are significant.” (Ben C., supra, 40 Cal.4th at p. 540;
see Roulet, supra, 23 Cal.3d at p. 228.) A conservatorship can
result in involuntary confinement, which “ ‘ “entails a ‘massive
curtailment of liberty’ in the constitutional sense.” ’ ” (Roulet,
at p. 224.) A person found gravely disabled also faces
stigmatization and the loss of personal rights like the freedom
to drive, vote, enter contracts, and decide about medical
treatment. (See Ben C., at p. 540; John L., supra, 48 Cal.4th at
p. 150; see also § 5357.) This potential deprivation of liberty
implicates due process concerns.
K.P. contends, “limiting the jury’s consideration to the sole
issue of grave disability as defined by the statute would
seriously infringe on the conservatee’s due process rights.” His
argument takes an unduly narrow view of what “grave
disability” means in a conservatorship trial. We agree that that
the fact finder must be allowed to consider all credible evidence
bearing on the issue of grave disability, including whether the
person is capable of receiving voluntary treatment. A
conservatorship is not be necessary if the mentally ill person is
willing and able to accept specified, available treatment that
24
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
will enable the person to survive safely without involuntary
detention. (See §§ 5008, 5350, subd. (e)(1).) The fact finder
should be able to evaluate competent evidence of the person’s
amenability to voluntary treatment, and a jury should receive
appropriate instructions on how the evidence should be
considered. But the question here is not just whether the fact
finder may consider evidence; it is whether due process requires
that the state prove a proposed conservatee’s resistance to
voluntary treatment as a separate element. We are not
persuaded that the federal or state Constitutions require a
separate finding on the voluntary treatment issue.
K.P. has not explained why a proposed conservatee’s
constitutional rights are not sufficiently protected by the fact
finder’s consideration of amenability to voluntary treatment in
connection with grave disability, or why the state must instead
be tasked with proving this issue separately. We have
previously declined to create such a new requirement. Early
held that a person who can provide for basic survival needs with
assistance from others is not gravely disabled. This holding was
constitutionally required under United States Supreme Court
precedent. (See Early, supra, 35 Cal.3d at pp. 251–252, citing
O’Connor v. Donaldson, supra, 422 U.S. at p. 576.) Yet, though
Early concluded evidence of third party assistance could be
considered by the fact finder when offered, it also observed that
“the burden of proving grave disability [as statutorily] defined
could well become insuperable if those alleging such disability
had to negate all reasonable doubts as to the possible existence
of third party aid.” (Early, at p. 254.)
Similar to third party assistance, the fact finder may
conclude there is no grave disability if a person is both willing
and able to accept treatment that will ensure basic survival
25
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
needs are met. Amenability to voluntary treatment is thus
relevant to the ultimate question of grave disability. As in
Early, we conclude evidence on the voluntary treatment issue is
admissible for the fact finder’s consideration. But the
Legislature has not made resistance to voluntary treatment a
separate element to be proven by the state, nor does any
constitutional precedent require that it do so. It has long been
held that the gravely disabled standard is constitutionally
sufficient to justify the imposition of a conservatorship.
(Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 285.)
K.P. has not demonstrated that more is required.
E. Application
At the trial below, both the Public Guardian and K.P.
presented evidence about K.P.’s willingness and ability to accept
voluntary treatment. A psychologist explained that K.P.’s lack
of insight into his schizophrenia would hinder his ability to
continue with medications and therapy on a voluntary basis.
The psychologist believed K.P. needed a conservator’s
supervision to ensure he would take his medications
consistently and correctly. K.P. confirmed this assessment
when he testified. He denied having a mental illness and
admitted he would not continue taking his medications if
released from conservatorship.
The court also gave appropriate instructions on how this
evidence could be considered. After instructing on the Public
Guardian’s obligation to prove that K.P. had a mental disorder
and was gravely disabled as a result (CACI No. 4000), the court
gave a modified version of CACI No. 4002 that specifically
referenced K.P.’s willingness and ability to accept voluntary
treatment. Because evidence on amenability to voluntary
26
Conservatorship of K.P.
Opinion of the Court by Corrigan, J.
treatment was properly admitted, and the jury was properly
instructed on its relevance, there was no error. The jury’s
finding of grave disability was sufficient to appoint a
conservator.
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
27
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Conservatorship of K.P.
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 39 Cal.App.5th 254Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S258212
Date Filed: June 28, 2021
__________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Robert S. Harrison
__________________________________________________________________
Counsel:
Christopher L. Haberman, under appointment by the Supreme Court,
and Christian C. Buckley, under appointment by the Court of Appeal,
for Objector and Appellant.
Mary C. Wickham, County Counsel, Rosanne Wong and Joyce M.
Aiello, Assistant County Counsel, Jose Silva, Principal Deputy County
Counsel, and William C. Sias, Deputy County Counsel, for Petitioner
and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Christopher L. Haberman
Attorney at Law
P.O. Box 521
Visalia, CA 93279
(559) 384-0703
William C. Sias
Deputy County Counsel
500 West Temple St., Suite 648
Los Angeles, CA 90012
(213) 407-4947