Advanced Mental Health Care 101: Understanding Conservatorship
Kaitlyn (Kait) Oudt
Employee Benefits Specialist providing group benefits analysis & consultation to insurance professionals ? Mental Health Guru ? Digital Media Specialist, Content Creator, Strategist
Conservatorship is a complex yet vital legal tool in mental health care that significantly impacts individuals' lives. Often discussed with caution and curiosity, this week's newsletter delves into the intricacies of mental health conservatorship, shedding light on its purpose, processes, and the rights of those involved.
During our conversation today, we'll navigate through:
?? Interested in learning more about how to navigate mental health emergencies and involuntary holds? Check out past editions of Working Well to read the comprehensive guides!
Understanding Conservatorship
Conservatorship is a significant legal arrangement that involves a court hearing with all relevant parties. When a conservatorship is established, the individual, known as the conservatee, loses many civil rights that most people take for granted. This can include the right to choose where to live, what medical treatments to accept or refuse, and how to manage their own finances and assets. The conservator, who takes over these responsibilities, is legally accountable to the court. The involuntary mental health treatment guidelines fall under the California Welfare and Institutions Codes 5200.
The courts may grant several different types of conservatorship: Lanterman-Petris-Short (LPS) Conservatorships, Probate Conservatorships, and Limited Conservatorships. Depending on the individual's state and county, additional types of conservatorship may apply, like Murphy's Conservatorship in San Francisco, CA.
LPS (Mental Health) Conservatorship
Legal Basis: Under the Welfare and Institutions Code, an LPS conservatorship can be appointed for someone who is gravely disabled, meaning they are unable to provide for their basic needs such as food, clothing, or shelter due to a mental disorder. This type of conservatorship can also apply to certain criminal defendants who are deemed incompetent to stand trial.
Purpose: The primary goals of an LPS conservatorship are to ensure that the conservatee receives personalized treatment, supervision, and appropriate placement, as well as to manage their financial resources effectively.
Your Important Questions, Answered
NAMI has a fantastic guide on LPS Conservatorship that's worth reading. Bet Tzedek's guide 'What You Need to Know about LPS Conservatorship for a Person with a Mental Health Disability' is also a recommended resource by NAMI. We'll summarize some of the key findings from those resources here and dive into additional helpful guidance and Q&A.
?? Why is it important to obtain an LPS Conservatorship?
An LPS Conservatorship enables a conservator to collaborate with doctors to ensure a mentally ill individual receives comprehensive recovery treatment, especially if they are non-compliant with medication or unaware of their illness. This legal tool allows for involuntary treatment, ensuring patients cannot refuse necessary medication. Under an LPS Conservatorship, treatment, and medication can be administered even if the person refuses, provided a judge grants the conservator this authority.
?? When can LPS conservatorship be a good thing?
In cases where a loved one is unable to care for themselves adequately, LPS conservatorship can be a life-saving measure to prevent homelessness, frequent hospitalizations and emergency room visits, and help your loved one avoid jail time.
The goal of LPS conservatorship is to support recovery and keep individuals safe while preventing the onset of additional mental health conditions, easing brain deterioration, and preventing additional hardship.
Understanding Conservatee Eligibility
?? Who can be conserved?
Conservatorships are authorized by the court for adults who have been diagnosed with specific mental disorders listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV) and are deemed gravely disabled. Conservatorships are granted for people with:
?? What qualifies a person to be placed under an LPS Conservatorship?
To qualify, an individual must be gravely disabled due to a serious mental illness, with no other alternatives for recovery.
?? What is the definition of "gravely disabled"?
A person is considered gravely disabled if they are unable to meet their basic needs for food, clothing, or shelter. This determination can be made even if the individual is living on the streets by emphasizing the safety and health risks associated with their inability to obtain these essential necessities.
?? What has to happen before an individual can be considered "gravely disabled"?
To qualify for a gravely disabled status, an individual must show that they are unable to obtain food, clothing, or shelter safely. This status is typically confirmed through hospitalization or incarceration records and is essential for starting an LPS Conservatorship.
?? How do I know if my loved one is a harm to himself or others?
If you are concerned about the mental health of a loved one and think they may be a danger to themself or others, it's best to get help as soon as possible. If your loved one is experiencing psychotic behavior, hallucinations, delusions, increases in manic behaviors or agitation, it's important to seek emergency medical care immediately.
Hospitalization is often easier than jail for initiating conservatorship. Once incarcerated, the treating physician at the jail or prison must initiate the LPS Conservatorship, which can be more challenging for loved ones.
Some additional red flags to keep an eye on include delusional behavior, obliviousness to danger, obsessive thoughts of harm, and neglect of personal safety. This may look like boycotting food or medication because they believe it's been tampered with by someone trying to hurt or control them; refusing to care for personal hygiene, bathe, or properly use the restroom; ideations that someone has conducted medical experiments on them; walking into the street with a lack of awareness for things like moving cars; believing they need to protect themselves with weapons or barricade themself inside to stay safe.
?? My loved one doesn't believe they need help. I don't think they can handle this on their own, but I don't want to upset them.
Untreated mental illness can have serious ramifications. The longer an individual goes without a customized treatment plan, professional care, and proper medication -- the higher the likelihood of developing severe complications, a more serious mental health issue, or severe cognitive impairment. Early treatment typically leads to better outcomes.
Individuals with schizophrenia, for example, have a shorter average lifespan compared to others without the condition. Individuals with schizophrenia and psychotic spectrum disorders also have a high risk of suicide and attempted suicide, making it one of the leading causes of premature death in this population. A 2017 meta-analysis of 11 studies revealed that individuals with schizophrenia experienced an average decrease in life expectancy of around 14.5 years. We are sharing this to highlight the profound impact of severe mental illness on an individual's overall health and well-being. These issues go beyond the surface.
Overcoming barriers to treatment can be very difficult for people with mental health challenges. This could include difficulties with affordability, such as concerns about paying for doctor's visits and medication, lack of access to healthcare, and challenges in committing to therapy or a treatment plan.
If a loved one is struggling to manage their mental health condition or follow a treatment plan, it's important to recognize when it's necessary to intervene and provide support.
?? Conservatorship seems extreme. When does it make sense?
Conservatorship is a very serious and legally binding arrangement that should not be taken lightly. This path will not be right for everyone and is reserved for individuals who require assisted mental health care and support to survive and complete essential daily tasks. Various checks and balances ensure that individuals qualify for conservatorship.
If your loved one frequently experiences mental or behavioral disturbances, has a hard time remembering to take their medication or refuses care altogether, is struggling to provide food and shelter for themselves, has a history of frequent incarcerations, or is regularly hospitalized for mental health concerns - conservatorship can potentially alleviate some of this pressure and help get your loved one on track.
Types of Conservatorships Explained
?? What types of LPS Conservatorships do the courts grant?
There are two types of LPS conservatorships: LPS Conservatorship of the Person and LPS Conservatorship of the Estate.
?? Are there different levels of conservatorship?
Yes - Since individuals require varying levels and types of assistance, there are different forms of conservatorships. The judicial system can appoint a General or Limited Conservatorship, depending on the needs of the individual in question.
?? What's the difference between probate conservatorship and LPS conservatorship?
Probate conservatorships and LPS conservatorships both aim to protect individuals unable to care for themselves but differ significantly in their focus and processes. Probate conservatorships, initiated through the probate court, cover individuals incapacitated due to conditions like dementia or physical disabilities, allowing conservators to manage personal care or financial matters. They can be indefinite with periodic reviews.
In contrast, LPS conservatorships, initiated by psychiatrists under the Lanterman-Petris-Short Act, are specifically for those with severe mental illnesses such as schizophrenia or bipolar disorder. These conservatorships, lasting one year and requiring annual renewal, grant conservators the authority to enforce psychiatric treatment and placement in locked facilities if necessary, emphasizing the least restrictive environment while ensuring safety and treatment.
?? What is Murphy Conservatorship in San Francisco, CA?
The Murphy Conservatorship is a specialized form of conservatorship in San Francisco, California, for homeless individuals with severe mental illnesses who consistently refuse voluntary treatment and services. Named after a legal case, it allows for a conservator to manage the individual's care, housing, and treatment, aiming to provide stable housing and essential mental health services. The court decides on the conservatorship based on the individual's history of non-compliance, homelessness, and mental health issues. This conservatorship is unique to San Francisco and is not applicable statewide, addressing local challenges related to homelessness and severe mental illness. Other California counties may have similar conservatorship procedures but under different names or frameworks.
Conservator Rights and Responsibilities
?? What powers does an LPS conservator have?
An LPS Conservatorship grants a conservator legal authority to make crucial decisions for a seriously mentally ill person (the conservatee) who cannot care for themselves. This includes:
The conservator must make decisions in the best interest of the conservatee, ensuring they are placed in the least restrictive environment possible.
?? What are the conservator’s responsibilities with respect to the conservatee?
Conservators are responsible for approving the living arrangements and treatment plans, including medication, for the conservatee. They also assist in developing and overseeing a treatment plan aimed at improving the conservatee's life. Conservators are recommended to educate themselves about mental disorders.
?? What are the conservator’s responsibilities with respect to the estate?
As an estate conservator, you are responsible for managing all financial matters related to the conservatee’s estate without incurring personal liability. This includes handling SSI benefits as a representative payee, if applicable. You can read the full set of rules on conservatorship estate management here.
?? What are the 7 powers in a limited conservatorship?
A limited conservator may have up to 7 powers:
In a limited conservatorship, the judge initially determines if a person with a developmental disability requires a conservatorship. If deemed necessary, the judge then evaluates whether the individual needs assistance in each of the seven specific areas covered by the conservatorship's powers. The judge will only grant the limited conservator the specific powers that are requested and found necessary by the court.
Impact on the Conservatee
?? What limitations are suspended for the Conservatee?
Suspended rights include:
?? How long is an LPS Conservatorship granted?
LPS Conservatorships are granted for one year but can be renewed annually. To avoid restarting the process, it’s crucial to track the renewal date and meet court requirements.
?? What are additional considerations I should know about?
Personal and Residential Decisions: The conservator may have the authority to decide where the conservatee lives, particularly if they need to be in a supervised or locked facility for their safety and proper treatment.
Daily Activities and Support: The conservator can make decisions about the conservatee’s daily activities, support services, and any other necessary interventions to improve their quality of life.
Legal Representation: The conservatee might have a court-appointed attorney to represent their interests during conservatorship proceedings, ensuring that their rights are considered and protected throughout the process.
?? Are there protections to ensure the right decision has been made and that the conservatorship is still necessary?
The court regularly reviews the conservatorship to ensure it remains necessary and that the conservator is acting in the conservatee's best interests, considering the conservatee’s preferences whenever possible. If the conservatee’s mental health condition improves, they can petition the court for the reinstatement of their rights, subject to periodic assessments to determine the ongoing necessity of the conservatorship. These measures aim to provide essential care and protection, supporting the conservatee's recovery and stability.
Conservatee’s Input: Whenever possible, the conservatee’s preferences and input are considered, balancing their autonomy with their need for protection and care.
?? Can rights be reinstated?
Yes, conservatee's have the opportunity to have their rights reinstated. They can do so by:
Improvement in Condition: If the conservatee’s mental health condition improves, they can petition the court to have their rights reinstated. The court may evaluate the situation through medical assessments and testimonies to decide if the conservatorship should be modified or terminated.
Periodic Assessments: The conservatorship is subject to periodic assessments to ensure that it is still necessary and appropriate for the conservatee’s current condition.
By suspending certain rights, the LPS conservatorship aims to provide a structured environment where the conservatee can receive essential care and protection, ultimately supporting their path to recovery and stability.
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Understanding Conservator Liability + Conservatee Conflicts
?? If someone under an LPS conservatorship commits an illegal act, how is the process handled? Is the conservator liable for the conservatee's actions if they were not involved?
The criminal justice system handles the situation if someone under an LPS conservatorship commits an illegal act. Here are the key points regarding liability and responsibility:
?? What happens if my loved one refuses treatment or refuses to take their medication?
If the person under conservatorship refuses to take their medication or leaves a treatment facility, the conservator can ask for a peace officer to escort them back to the facility or to take their medication. To do this, you'll need to give the police a copy of the law, the conservatorship order, and a written request. It's important to act quickly to prevent any harm or further decline in the person's condition.
Conservator Code of Conduct
?? Are there rules about conflicts of interest?
Yes. Conservators must avoid actual and apparent conflicts of interest to uphold their fiduciary duty to the conservatee. This means they should not have personal, business, or professional interests that could be considered self-serving or detrimental to the conservatee's best interests.
Employees of the conservator, including family members, are not considered service providers if their compensation is paid by the conservator and either included in the conservator’s compensation petition or not paid from the conservatee’s estate. This ensures that the conservator's actions are always in the best interest of the conservatee, free from any conflicting interests.
?? Are there limits to what the conservator can do with the conservatee's finances?
The conservator of the estate has several critical duties to ensure the conservatee's property is managed prudently and in their best interest. They must handle the conservatee's property with the care of a prudent person, avoid excessively risky investments, and refrain from making unauthorized loans or gifts. The estate must be managed primarily for the conservatee's benefit, with financial information protected against unnecessary disclosure and assets kept separate from those of the conservator or others. Accurate records of all transactions are essential, as is securing and insuring the estate's property.
?? Are there any rules regarding what conservators can do regarding a conservatee's property, estate, and legal documents?
The conservator must also locate and safeguard estate planning documents, preserve property identified in the estate plan, and communicate effectively with any trustees and the conservator of the person. They should pursue beneficial claims and defend against actions against the estate, collect all eligible benefits, and evaluate the conservatee's ability to manage assets. Before disposing of personal property, family members should be notified and allowed to acquire it with court approval. These responsibilities ensure the conservatee's estate is well-managed, protecting their interests and improving their quality of life.
Conservator Requirements
?? Who is allowed to be a conservator?
An LPS conservator can be selected from the following categories of individuals:
In all cases, the appointed conservator must be an adult (over the age of 18) and must be capable of managing the responsibilities associated with the conservatorship. The court’s priority is to appoint someone who will act in the best interest of the conservative.
?? Do you have to get a background check to be an LPS Conservator?
Yes, a background check is usually necessary to become an LPS conservator. This is done to ensure that the prospective conservator is appropriate for the role and does not have any disqualifying history. The court's goal is to safeguard the conservatee and confirm that the conservator can dutifully oversee their care and related obligations.
?? What does the background check typically entail?
The background check for becoming an LPS conservator generally includes a criminal background check, financial background check, personal references, employment and residential history, credit check, and verification of qualifications.
These checks ensure that the conservator is trustworthy, responsible, and capable of acting in the best interest of the conservatoratee.
Hospitalization
?? Does my loved one need SSI or Social Security in order to be hospitalized?
No, a background check isn't necessary, but visiting the Social Security office to apply for SSI for your loved one as soon as possible is advisable. Let the office know that your loved one is currently hospitalized; the social worker there can help get the required forms signed. This will set an application date, making SSI payments retroactive to that date once approved. You should request to be the "representative payee" by having a doctor certify that your loved one is unable to manage their finances. The hospital stay is a convenient time for this evaluation. If the SSI application is denied, remember to appeal within 60 days. Generally, approval is likely if you present a strong case for treatment. Approval for SSI often includes Medi-Cal approval, but you can also apply for Medi-Cal separately if needed.
?? How do involuntary holds work? Is there a way to help hospitalize my loved one in emergency situations?
We have a comprehensive guide on how to handle a mental health emergency and navigate through involuntary holds. You can find more information in previous editions of Working Well. Involuntary holds are complex, similar to conservatorship, and it's important to understand all the components involved.
?? Can my loved one still be hospitalized if they don't have health insurance or Medi-Cal?
Yes, your loved one can be hospitalized in California for a mental health crisis even if they don't have health insurance. Under federal and state laws, hospitals are required to provide emergency medical treatment to all individuals, regardless of their insurance status or ability to pay. This includes emergency psychiatric care.
However, lacking insurance may result in quicker discharge after stabilization. Applying for SSI and Medi-Cal through Social Security can help ensure continued care and coverage. It's beneficial to involve the hospital's social worker in this process.
California's Medicaid program, Medi-Cal, provides health coverage for low-income individuals, including mental health services. If your loved one qualifies, they can receive coverage for hospitalizations and other mental health treatments. There are pathways for expedited enrollment in Medi-Cal for those experiencing a crisis.
Understanding the Legal Aspect of Conservatorship
?? Do I have to hire an attorney?
You don't always need to hire an attorney for conservatorship, as it can be costly. The treating doctor can start the LPS Conservatorship process with the public guardian's office if the individual is in a hospital or jail. The office then sends a report to the county counsel and petitions the court. The court can appoint an attorney from its panel at no cost to the individual if necessary.
?? What is a Riese hearing?
A Riese hearing is held at the hospital when a patient refuses medication and poses a threat due to agitation or violence. This capacity hearing determines whether the patient can be compelled to take medication to ensure their safety and the safety of others.
?? How much does this cost to file?
The court filing fee and the investigation fee amounts can be found on the?Court's Fee Schedule. This can be found per county. This is San Diego County's Court's Fee Schedule, as an example.
If you cannot afford to pay the fee, you can request a Fee Waiver from the Court. The Fee Waiver Packet – Guardianships and Conservatorships must be completed and filed with your Petition. An example of the form can be found here.
What is the typical process for seeking LPS conservatorship?
Conservatorship is a multi-step process. Here's what you can expect during the process:
Throughout this process, maintaining communication with the public guardian’s office and relevant advocates is essential to ensure that all necessary steps are taken and that the patient’s rights and safety are prioritized.
What does the conservatorship timeline look like?
?? How long does it take to get an LPS Conservatorship??
LPS matters are set for hearing and decided usually in less than 30 days.
?? Looking for a sample conservatorship timeline? Here's an idea of the steps involved before obtaining conservatorship. Every individual is different; the severity of an individual's mental illness and the required level of support will impact the legal proceedings.
Here's a sample timeline?from San Diego County. It provides a general overview of the Conservatorship process (LPS and Probate Conservatorship). Every county is different, so it's important to refer to the specific guidelines from your county's court for specific details. Using San Diego County as a point of reference, here's what you can expect.
Please note that the timeline shown below is a general conservatorship timeline that typically applies to Probate Conservatorship. LPS Conservatorship cases typically have an expedited timeline in order to accommodate mental health emergencies.
Building a Strong Case for Treatment + Advocating for Your Loved One's Mental Health Needs
To secure the necessary resources and support for your loved one's mental health treatment, NAMI advises that it's crucial to create a detailed and compelling written case. This document will help in hospitalizing your loved one, utilizing Department of Mental Health Treatment Programs, or managing situations where they may be incarcerated.
Your written case should include:
This document will aid doctors in diagnosing and treating your loved one effectively and may be necessary for obtaining an LPS Conservatorship if required. Ensure that the case is concise, clear, and devoid of unnecessary details, as doctors have limited time and need direct information.
Using Your Written Case Effectively
When seeking treatment, NAMI suggests presenting your written case to the police and psychiatric evaluation team (PET) if you need help hospitalizing your loved one. Provide copies to the hospital social worker and request that it be shared with the attending doctor. Once an LPS Conservatorship referral is filed, give a copy to the public guardian’s office. This case can also be beneficial when applying for SSI/SSDI and Medi-Cal.
If healthcare providers refuse to accept your information, reference the CA Welfare and Institutions Code 5008.2, which mandates that they must take your information. Additionally, use your case when requesting programs like Assisted Outpatient Treatment or the Full Service Partnership program.
This structured approach ensures that all relevant parties have the necessary information to provide the best possible care for your loved one.
?? If you need help navigating a mental health emergency or aren't sure what to expect, check out Working Well's guide here.
Write it Down
It's important to keep a medical/mental health journal for a loved one with mental illness. This journal should document each psychotic episode with dates, symptoms, and living conditions. This record helps doctors and treatment teams make informed decisions, ensuring better evaluation, diagnosis, and recovery plans.
Having multiple copies ready to share with doctors, public guardians, and hospital social workers is a good idea. This can help provide a comprehensive view of your loved one’s history, which is important for appropriate medical and psychiatric care. When compiling the journal into a Mental Health History, aim for a brief, resume-like format highlighting key points and diagnoses. This document can play a crucial role in ensuring your loved one receives the necessary care and avoids inappropriate incarceration. It offers a clear record for professionals to reference. Hand-delivering these entries and obtaining a signature for confirmation is important.
Alternatives to Conservatorship
Navigating the care options for a loved one can be challenging, especially when considering the profound impact of a conservatorship. While it provides a structured framework for managing someone’s health and financial matters, it also comes with significant legal and personal implications. Therefore, it’s crucial to explore all available alternatives that might offer the necessary support without the extensive measures a conservatorship entails.
?? Our upcoming newsletter will discuss alternatives to conservatorship that you should be aware of. By exploring these options, we aim to give you the knowledge and tools to make informed decisions that best support your loved one’s unique needs and circumstances. Stay tuned for a detailed look into each of these alternatives, helping you navigate this complex and important aspect of caregiving with confidence and compassion.
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Disclaimer: The information provided is for general informational purposes only and should not be construed as professional, medical, or legal advice. Readers should consult with appropriate professionals regarding their specific circumstances and needs. The author and any associated entities shall not be liable for any losses, injuries, or damages arising from the use of or reliance on the information provided in this article. By accessing and reading this article, you agree to release the author and any associated entities from any and all liability.
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