Cite as A164821
Filed June 22, 2022, First District, Div. Three
By Jaime B. Herren
Holland & Knight LLP
Headnote: LPS Conservatorship Petition Hearing – Right to Demand Trial
Summary: LPS conservatorship petitions must proceed to a statutory hearing before trial unless the proposed conservatee waives the hearing and demands trial before the hearing, but the proposed conservatee does not have to demand trial until five days following the completed statutory hearing.
After several continuances, an evidentiary hearing was held on the LPS conservatorship petition for K.R. and a conservatorship was established. The probate court never advised K.R. of her right to a jury trial. At the conclusion of the hearing after the probate court announced its decision, K.R. demanded a jury trial. The probate court denied her demand. K.R. petitioned for a writ of mandate.
The appellate court granted the petition and remanded for trial. K.R.’s demand for a jury trial was timely. “Hearings” and “trials” are procedurally distinct. Under the governing statutory framework, LPS conservatorship petitions must proceed to a hearing on the petition unless the proposed conservatee demands trial first. Conservatees then have five days from the hearing to demand a court or jury trial. Thus, under the statute, the hearing cannot be considered the trial. Moreover, continuances are not hearings and a continuance cannot be considered a completed hearing. Finally, K.R.’s participation in the statutory hearing—which included witness testimony, exhibits, and argument—did not forfeit her right to trial and at no time did she knowingly and voluntarily waive her rights. Thus, K.R.’s right to demand trial lasted until five days following the evidentiary hearing and the probate court’s denial amounted to a complete denial of her right to a jury trial on her conservatorship. It was not harmless error.