Trusts and Estates

Conservatorship of C.O.

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Cite as H047087
Filed November 18, 2021, Sixth District

By Michelle Barnett Batista
Aaron, Riechert, Carpol & Riffle, APC

Headnote:  LPS Conservatorships – Right to Jury Trial – Waiver

Summary: Counsel for proposed conservatee may waive client’s right to have the matter of establishment or reestablishment of LPS conservatorship decided by jury trial, absent circumstances suggesting counsel lacked actual authority, counsel disregarded proposed conservatee’s wishes, or proposed conservatee was actually unaware of right to a jury trial.

C.O. had been placed under an LPS conservatorship with the public guardian as conservator.  In 2019, the public guardian petitioned for reappointment as LPS conservator alleging that C.O. remained gravely disabled.  The trial court issued a written citation for conservatorship, which was served on C.O. and notified C.O. of his right to a jury trial.  At the initial hearing on the petition for reappointment, C.O.’s attorney stated, in C.O.’s presence, that C.O. requested a bench trial.  The trial court did not advise C.O. on the record of his right to a jury trial or elicit a personal waiver of that right from him.  Following the bench trial, the trial court found C.O. to be gravely disabled and reappointed the public guardian as conservator.  C.O. appealed.

The appellate court affirmed.  The trial court did not err in accepting the jury trial waiver from counsel rather than C.O, as there was no evidence that C.O. desired a jury trial, that he was actually unaware of his right to a jury trial, or that his attorney elected to proceed with a bench trial over C.O.’s objection.  Principles of due process and equal protection did not require the trial court to elicit a personal waiver on the record of C.O.’s right to a jury trial for reestablishment of the conservatorship.  Although the trial court violated C.O.’s statutory right under the LPS Act by omitting to advise him personally of his right to a jury trial on the record, the error was harmless as it was not reasonably probable an outcome more favorable to C.O. would have resulted had the trial court personally advised him of his jury trial right.  In applying the harmless error standard, rather than the structural error standard, the appellate court noted that there was substantial evidence supporting the trial court’s implied finding that C.O.’s waiver was knowing and voluntary.

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