Trusts and Estates

Conservatorship of D.P.

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Cite as B291525
Filed October 31, 2019, Second District, Division Five

By Matthew R. Owens
Withers Bergman LLP

Headnote: LPS Conservatorships – Elements Required to Prove Grave Disability

Summary: In an action to reappoint an LPS conservator, the petitioner need not prove as an additional element that the conservatee is unwilling or unable to voluntarily accept treatment.  

The public guardian filed a petition for reappointment as conservator of D.P.’s person and estate.  The court instructed the jury that in order to prevail the public guardian had to prove two elements beyond a reasonable doubt: (i) D.P. had a mental disorder, and (ii) D.P. was gravely disabled as a result of the mental disorder.  The unmodified version of the governing jury instruction included a third element in brackets that, if given to the jury, would have required the public guardian to also prove that D.P. was unwilling or unable voluntarily to accept meaningful treatment.  The trial court omitted the third element from its jury instruction.  The jury determined D.P. was gravely disabled and, as a result, the court reappointed the public guardian as D.P.’s conservator.  D.P. appealed based on the court’s omission of the third element from the jury instructions, contending that omission reduced the public guardian’s burden of proof to less than beyond a reasonable doubt.

The appellate court affirmed.  There was no error in the jury instructions because the third element that D.P. requested be included was not required by statute for reappointment of a conservator.  The statutory definition of “gravely disabled” makes no mention of the conservatee’s willingness or ability to consent to treatment.  The language in D.P.’s requested jury instruction concerning willingness or ability to consent to treatment comes from a separate statute empowering treatment facilities to initiate a conservatorship proceeding when trying to admit an uncooperative patient, and does not create an additional requirement a petitioner must prove in order to establishment a conservatorship. Further, as part of a different jury instruction, the trial court did instruct the jury it could consider D.P.’s willingness to accept treatment as one factor in deciding whether D.P. was gravely disabled.

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