Conservatorship of Kevin A., California Court of Appeal, Fifth Appellate District, October 2, 2015, Case No. F070914

In the LPS (Lanterman-Petris-Short Act) conservatorship of Kevin A. the Court of Appeal held that the proposed conservatee, Kevin A., was denied his right to a jury trial where he objected to the petition for conservatorship and he personally expressed his request for a trial by jury, but the Court nevertheless proceeded to determine the matter without a jury. Here is a copy of the Opinion, Conservatorship of Kevin A. Opinion from Court Website

In relevant part, the Court held as follows:

  1. In a situation where a proposed conservatee objects to or contests the petition for conservatorship, the right to proceed before a jury at trial, as opposed to an adjudication by the Court, rests completely with the proposed conservatee, not with the proposed conservatee’s attorney or the Court, unless the Court first finds that there is substantial evidence that the proposed conservatee lacks the capacity to decide for himself or herself whether to proceed before a jury.
  2. In Kevin A. the Court made no specific finding that Kevin A. lacked capacity to decide for himself whether to proceed before a jury.
  3. Alternatively, if the Court determines that there is substantial evidence that the proposed conservatee lacks the capacity to decide whether to proceed before a jury, the control of the decision whether to demand or waive the right to a jury belongs to the proposed conservatee’s attorney, despite the proposed conservatee’s objection.
  4. Regardless of the fact that a proposed conservatee suffers from mental illness or related disorders, those conditions preclude any categorical inference that the proposed conservatee is unable to make a decision regarding whether to demand or waive a jury trial.

In a LPS conservatorship the petitioner, not the proposed conservatee, has the burden of proving that the conservatorship should be granted. Here’s an interesting question: since in a LPS conservatorship an adjudication by a jury to grant the petition for conservatorship must be unanimous, in the situation where the proposed conservatee is objecting to or contesting the need for the conservatorship, would there be a strategic advantage for the proposed conservatee to demand a jury trial instead of proceeding before the single judge?

Next question, how, if at all, does the holding or reasoning in Kevin A. also impact or relate to general probate conservatorship proceedings under California Probate Code §§1800, et seq.? In summary, for the reasons discussed below, it appears that the reasoning in Kevin A. would similarly apply in general probate conservatorship cases and the proposed conservatee’s right to decide whether to proceed before a jury in those cases.

In a general probate conservatorship the proposed conservatee also has the right to demand a jury trial on the issue whether or not the conservatorship should be granted. Probate Code §1828(a)(6). Additionally, in a general probate conservatorship both the court investigator and the Court are required by statute to inform the proposed conservatee about a number of his or her legal rights, including, or example, his or her rights to object to the petition for conservatorship, and to decide whether or not to have a jury trial. See Probate Code §§1826 and 1828.

Both LPS and general probate conservatorships also follow the normal rules of civil procedure. Probate Code §§1000, 1827 and 2100; Welfare and Institutions Code §5350. In fact, although the LPS conservatorship statutory provisions are provided for under the California Welfare and Institutions Code (see W&I Code §§5000, et seq.), the Court in Kevin A. stated as follows, recognizing that the procedure for establishing a LPS conservatorship is also the procedure that is used for establishing a general probate conservatorship:

“Section 5350 provides, in relevant part, the “procedure for establishing, administering, and terminating a conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code ….” Probate Code section 1827 provides: “The court shall hear and determine the matter of the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee.” Section 1828 of the Probate Code requires the court to “inform the proposed conservatee” of his or her “right to oppose the proceeding, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.” (Prob. Code, § 1828, subd. (a)(6).) Thereafter, the court must “consult the proposed conservatee to determine the proposed conservatee’s opinion” regarding the “establishment of the conservatorship,” the “appointment of the proposed conservator” and any limitation to his or her legal capacities. (Prob. Code, § 1828, subd. (b)(1)-(3).)”

Similar to a LPS conservatorship, in a general probate conservatorship it is also the burden of the petitioner to prove that there is a need for a conservatorship, i.e., that the petition for conservatorship should be granted. Although the amount or degree of proof that is required to prove that a conservatorship should be granted is different in a LPS conservatorship than it is in a general probate conservatorship, beyond a reasonable doubt compared to clear and convincing evidence, respectively, and a LPS generally is probably thought of as being a more serious type of conservatorship, an argument can be made that a general probate conservatorship could be an equally or even more serious type of conservatorship because the LPS conservatorship lasts for one year, at which time it must be renewed, whereas the general probate conservatorship lasts until it is either modified by Court order or the conservatee dies. Additionally, in general probate conservatorships the conservator and the Court also are or might be making decisions relating to the conservatee’s personal freedoms and restrictions, placement including possible locked or restricted facilities, and medications.

Conservatorship cases are numerous in number and involve important rights, but relatively speaking there have been very few appellate-level court decisions involving conservatorships. And, although I don’t have the statistics, if the statistics even exist, there are very few jury trials in contested general probate conservatorships – jury trials are not encouraged although the proposed conservatee has that absolute right. Further, whereas there are Judicial Council jury instructions for LPS conservatorships (see CACI 4000-4013), jury instructions for general probate conservatorship jury trials are not provided, although you can find a sample jury instruction that I wrote at

Having more jury trials in conservatorship proceedings is a mixed bag. We have been primarily discussing the rights of the proposed conservatee because in fact it is only those rights that are being variously protected or restricted in general probate conservatorship proceedings. But requiring or having more jury trials in contested general probate conservatorships to a certain extent does put more burden on the Court system – seating a jury and conducting a jury trial does take more time. And if they had a choice, the majority of the parties who find themselves petitioning for the establishment of a conservatorship logically might greatly prefer to not have to incur the additional time, expense, and uncertainty that a jury trial can cause. Some people might also argue that having to seat a jury in some or perhaps even in many conservatorship cases could be wasteful of resources or should be unnecessary where it might appear evident beforehand and even prior to trial that some form of assistance or conservatorship might be helpful or granted. Nevertheless, those arguments could be made in every case, whether civil, criminal or probate, where a party has a right to decide whether to proceed before a jury, and at law do those arguments overlook the proposed conservatee’s acknowledged legal and procedural protections and rights?

Following the reasoning in Kevin A. and viewing the proposed conservatee’s personal and procedural rights from a legal prospective, in a contested general probate conservatorship, unless the Court determines that there is substantial evidence that the proposed conservatee lacks the capacity to decide whether to proceed before a jury, the decision whether to have a jury trial rests with the proposed conservatee. And arguably in some cases it might be strategically advantageous for the proposed conservatee to demand a jury if the proposed conservatee could have a better chance of prevailing compared to when the adjudication is being made by the single judge.

And one last final question or issue: in both LPS and general probate conservatorships, has it been sufficiently explained to the proposed conservatee not only what the petition requests and that he or she has the right to agree to or to oppose the conservatorship, but also that he or she has the right to a jury trial and whether a jury trial could present advantages or disadvantages in that specific case?

Dave Tate, Esq., San Francisco and throughout California