When do you not have the right to remain silent in conservatorship proceedings (Weintraub Tobin) – with Tate’s comments added

I have provided below a link to a Weintraub Tobin post about conservatorship proceedings and when a conservatee or prospective conservatee might have or might not have the right to remain silent (i.e., the right to not be compelled to testify). The post references Conservatorship of Bryan S. which was a LPS conservatorship; however, some of the same arguments might also be made in regular or general conservatorship proceedings.

A conservatorship proceeding is a state action in which the court is petitioned to order that there be a limitation on the conservatee’s freedom of choice or decision making, and in some circumstances the conservatee’s personal freedom of movement, or of living condition, or of right to not be medicated.

This post by Weintraub is also timely in light of the State of California’s initiative to use conservatorship proceedings more often.

As noted, in Conservatorship of Bryan S. the Court held that the prospective conservatee did not have the right to refuse to testify unless the questions and the answers thereto may incriminate the prospective conservatee in a criminal matter – and that question or issue, i.e., about possible incrimination, could be relevant for consideration in at least some conservatorship proceedings. And I also note that Conservatorship of Bryan S. involved only one Court of Appeals – other Court of Appeals might differ and at some point this issue might be brought up to the California Supreme Court.

You can find other posts about conservatorship proceedings throughout this blog – in the search box type in the word conservatorship.

The following is a link to the Weintraub Tobin discussion: https://www.weintraub.com/blogs/when-do-you-not-have-the-right-to-remain-silent-conservatorship-proceedings-and-equal-protection-clause-claims


Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

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Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

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