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Court of Appeal, Fourth District, Division 1, California.

IN RE: CONSERVATORSHIP OF the Person of Ernest DAIGLE. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. Ernest DAIGLE, Objector and Appellant.

No. D009514.

Decided: April 25, 1990

Ellen D. Geis, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace, Chief Deputy County Counsel, and Janice L. Ingold, Deputy County Counsel, for petitioner and respondent.

In this case, the trial court reestablished the Lanterman–Petris–Short Act (LPS) (Welf. & Inst.Code, § 5000 et seq.) 1 conservatorship of the person of Ernest Daigle, a 67–year–old man diagnosed as suffering from dementia.   The record shows Daigle was totally unable to communicate with his trial attorney either before the reestablishment hearing or at the time of the filing of this notice of appeal.   However, this appeal has taken on a life of its own entirely independent of Daigle's severely limited abilities, and requires us to address the issues of the standards for waiver of jury trial and of the right to counsel as applied to a person who is unable to express an understanding of these concepts.   We are also asked to evaluate the sufficiency of the evidence supporting the court's order imposing specified legal disabilities on Daigle and reestablishing his conservatorship.

Finding this case to be the logical successor of our opinion in Conservatorship of Pollock (1989) 208 Cal.App.3d 1406, 257 Cal.Rptr. 14, and analyzing the issues raised by this peculiar record in light of the extensive statutory scheme established in this field together with constitutional principles, we reject Daigle's appellate arguments that the trial court was required to conduct a voir dire proceeding to inquire into his competence to waive his rights to jury trial, to counsel, and to consent to the conservatorship.   We also reject the necessary implication of his arguments:  That a jury trial is required in every instance of reestablishing a conservatorship of such a gravely disabled person due to that person's inability to express a knowing and voluntary jury waiver to his counsel or to the court.   We believe the protections of the LPS scheme provided to such persons adequately protect their rights to freedom and also to the level of care required by their grave disability, without the need for the suggested exercise in futility.   We affirm the order.


Daigle's conservatorship was established in 1987 and reestablished in 1988, as he was found to be a gravely disabled person incapable of providing for his own basic personal needs for food, clothing, or shelter.  (§§ 5008(h)(1), 5350, 5361, 5362.) 2  Late in 1988, the public conservator noticed a hearing set for January 17, 1989, for the purpose of again reestablishing the conservatorship.   Daigle, the administrator of the facility where he resides, and Daigle's appointed attorney, H.L. Roy Short, were served with the notice, a verified petition to reestablish conservatorship, and the citation for conservatorship.

The citation for conservatorship advised Daigle of his right to oppose the petition, of the requirement that he be present at the hearing unless the reestablishment were stipulated to or a valid medical waiver of his presence were on file, and that he had the right to a jury trial on the issue of grave disability.   The petition was supported by a “Medical Recommendation & Declaration for Reestablishment of Conservatorship” signed by two physicians diagnosing Daigle as having dementia, with a prognosis of “poor.”   The doctors recommended Daigle be treated in a closed and locked treatment facility and that he not be accorded various rights and privileges, including driving, entering into contracts, having a firearm, voting, or controlling his own medical and psychiatric treatment.  (§§ 5357, 5358.)   In preparation for the hearing, the conservator obtained an order that Daigle be examined by a forensic psychiatrist.

Before the scheduled hearing date, Daigle's attorney, Short, filed a form declaration apparently prepared by Short and mislabeled at the bottom “Waiver of Presence at Hearing to Reestablish Conservatorship,” although the text of the declaration did not include any such waiver of presence.   Instead, in pertinent part, the declaration stated:

“1. I am the attorney appointed to represent [the conservatee Daigle].   I personally visited the conservatee on 12–31–88․

“2. (a) The conservatee was unable at this time to express to me a knowing and intelligent waiver of the hearing on the Petition to Reestablish Conservatorship set for January 17, 1989․

“3. The conservatee challenges the sufficiency of the requirements for presenting the petition and satisfaction with the requirements of establishing a conservatorship.

“4. Demand is made for a prove-up 3 hearing on the Petition for Reestablishment, and that the court find all procedural requirements have been met, and that credible evidence supports a finding beyond a reasonable doubt to prove continued grave disability.   Counsel enters into no stipulations and objects as hearsay [to] the introduction of any evidence of a statement that was made, other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”

On the appointed hearing date, neither Daigle nor Short appeared.   The trial judge discussed the matter with his clerk and with a representative of the conservator as follows:

“The Court:  This is one of Mr. Short's versions, isn't it?

“The Clerk:  Yes, Your Honor.  [¶] I have a declaration of attorney waiving presence and demanding a prove-up hearing, and I have an ex parte order for the conservatee to be examined by forensic.

“The Court:  Why do we reexamine him? ․


“The Court:  Why did we do that?

“[The conservator's representative]:  We understood, your honor, that we were going to be required to prove up, whatever that means.

“The Court:  Yeah, well, I—if worst comes to worst, we can do that sort of thing.   But my view of these matters is that section 5362 authorizes the court to reestablish a conservatorship without a hearing unless someone demands a hearing.  [¶] Now, Mr. Short has filed a document in which he says that he wants a hearing, but he also says that in effect that there's no dispute;  that what it amounts to is that he believes the legislature was wrong when it said under ․ [section] 5362 the court may reestablish without a hearing if there's no dispute.  [¶] Now, I think I'm obligated to follow the law as laid down by the legislature, not by Mr. Short.   Accordingly, this conservatorship is reestablished without a hearing under 5362 because the documents on file demonstrate that there is no dispute as to the result which should be attained.”

The court went on to explain its reasoning:  A hearing is required in a reestablishment proceeding if someone wants a result different from the one recommended by the conservator.   However, in the absence of a dispute about the desired result (such as whether the conservatorship should be terminated or the placement or disabilities imposed should be changed), it would be an “idle gesture” to hold a hearing under section 5362.   The court acknowledged that in some cases, the conservatee might be unable to express a desire for a change, but said a hearing should be had if the conservatee's attorney believed something should be done differently.   Absent some such indication, the court stated there was no point in holding a hearing or in conducting a further forensic examination.   The court then reestablished the conservatorship, placed Daigle in a closed and locked treatment facility, and imposed the requested disabilities.

Attorney Short appealed the order on behalf of his client.   In a motion for appointment of counsel on appeal, Short described Daigle's condition:

“He resides is [sic] in a closed nursing home, and requires total care.   When I attempted to converse with him in December 1988, he just sat in his chair, looked down at the floor, and did not respond to any questions whatever.   He requires total nursing care.   I do not believe he is capable of understanding what a conservatorship or an appeal is.  [¶] Although my client may not have the ability to understand and appreciate the denial of his constitutional and statutory rights, the issue presented in his case is serious in nature, is not moot, and resolution of the legal issue is actively desired.”

 Daigle's appointed appellate counsel and county counsel on behalf of the conservator filed extensive briefs and the matter is ready for decision.4


Daigle argues on appeal he did not waive his right to a jury trial or to representation by counsel at the hearing on reestablishment, and the court accordingly erred when it failed to conduct a voir dire hearing to evaluate his capacity to waive jury or to consent to the conservatorship, thus depriving him of these fundamental rights.   He also claims the lack of a conservatorship investigation report of the type required in Probate Code conservatorships denied him equal protection of the law in these LPS reestablishment proceedings and the evidence was insufficient to support the imposition of the conservatorship and the specified disabilities.

To address these claims, we shall set out the statutory scheme allowing reestablishment of LPS conservatorships, discuss the standards for waiver of jury trial and counsel in this context, and comment upon the standards for performance of counsel's duties to a client who is a conservatee and to the court which must rule upon the issues surrounding the conservatorship.   Finally, we address the sufficiency of the evidence in the record to support the imposition of the conservatorship and the specified disabilities.


Statutory Scheme and Daigle's Contentions

In Conservatorship of Pollock, supra, 208 Cal.App.3d 1406, 257 Cal.Rptr. 14, we summarized the statutory scheme for LPS conservatorships:

“Section 5361 provides upon the termination of a one-year conservatorship, the conservator may petition for reestablishment.   The petition ‘must include the opinion of two physicians or licensed psychologists ․ the conservatee is still gravely disabled as a result of mental disorder․’  (§ 5361.)   If there is adequate notice and no request for a hearing or jury trial, the court may reestablish the conservatorship without a formal hearing.  (§ 5362, subd. (b);  Conservatorship of Moore (1986) 185 Cal.App.3d 718, 723, 729–731 [229 Cal.Rptr. 875].)  If any party asks, ‘there shall be a court hearing or jury trial, whichever is requested, on the issue of whether the conservatee is still gravely disabled and in need of conservatorship.’  (§ 5362, subd. (a).)  At the hearing, the conservator must prove grave disability beyond a reasonable doubt.  (Conservatorship of Roulet (1979) 23 Cal.3d 219, 225–226, 235 [152 Cal.Rptr. 425, 590 P.2d 1].)  The conservatee may call the physicians as witnesses (Conservatorship of Delay (1988) 199 Cal.App.3d 1031, 1036 [245 Cal.Rptr. 216]) or may waive their presence upon advice of counsel (§ 5365.1)․”  (Pollock, supra, 208 Cal.App.3d at p. 1411, 257 Cal.Rptr. 14.)

In addition to the provisions outlined above, section 5350,5 governing the procedure for appointment of an LPS conservator, incorporates the procedures for appointment of conservators under the Probate Code, as set forth in Probate Code section 1400 et seq., with certain exceptions.   As applicable here, those exceptions include section 5350, subdivision (d), providing for jury trial on the issue of grave disability at establishment or reestablishment proceedings, and subdivision (f), which provides:

“Conservatorship investigation shall be conducted pursuant to this part and shall not be subject to Section 1826 or Chapter 2 (commencing with Section 1850 [‘Periodic Review of Conservatorship’] ) of ․ the Probate Code.”

Of the Probate Code procedures that are incorporated into the LPS scheme (Prob.Code, § 1400 et seq.), Daigle relies on three in particular, sections 1825, 1827, and 1828, to show his conservatorship should not have been reestablished as it was.6  Through his attorney, he contends the combined Probate Code and Welfare and Institutions Code statutory scheme, together with procedural due process principles, render the trial court's reestablishment of his conservatorship invalid because of his incapacity to waive jury trial or, conversely, to consent to the conservatorship.   He claims that no waiver of any of his rights took place by way of either (1) his attorney's declaration, which stated Daigle was unable to express to him a waiver of the hearing and thus demanded a “prove-up” hearing on the reestablishment petition or (2) his attorney's and his nonappearance at the noticed reestablishment hearing.

As a solution to this admitted “basic conundrum presented by a conservatee who cannot validly waive a hearing”, Daigle argues nothing in the Probate or Welfare and Institutions Codes is incompatible with a decision by this court requiring an evidentiary hearing on the issue of the conservatee's competence before reestablishment is ordered.   He proposes a four-step process for such a hearing:

(1) The court must inform the conservatee of his right to a jury trial and right to counsel and inquire of the conservatee.

(2) The court must determine the conservatee's level of competence.

(3) The court must determine whether there is sufficient evidence to accept the petition on the court's own motion (pursuant to § 5362(b)).

(4) The court must determine the least restrictive and most appropriate alternative placement.

In addition to the above claims, Daigle makes a constitutional argument that the exclusion in section 5350 of Probate Code section 1826 conservatorship investigation report requirements from the LPS scheme amounts to a denial of equal protection of the law for LPS conservatees.7  To evaluate the validity of these claims, we shall outline existing authority in the field of waiver of the rights of jury trial and counsel in the LPS context.


Standards for Waiver in Conservatorships

 The leading authorities on the issue of jury waivers in LPS proceedings are the cases of Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 285–288, 139 Cal.Rptr. 357 (applying former law), and Conservatorship of Maldonado (1985) 173 Cal.App.3d 144, 147–148, 218 Cal.Rptr. 796.   In Maldonado, the court held civil procedural law, as set forth in section 5350, Probate Code section 1827, and Code of Civil Procedure sections 283 and 631(3), determines whether an individual has validly waived the right to jury trial in a conservatorship proceeding.   Those sections contemplate a party or attorney's waiver of jury trial “[b]y oral consent, in open court, entered in the minutes or docket.”  (Code Civ.Proc., § 631(3) [now § 631(a)(3) ].)  In reaching this conclusion, the court noted there is a constitutional entitlement to jury trial only with respect to those actions having a common law jury right at the time of adoption of the California Constitution.   Since conservatorship proceedings are a creation of statute postdating the adoption of our constitution, the court refused to apply a criminal procedural standard (i.e., an on-the-record personal waiver) to determine the validity of a jury waiver in a conservatorship.  (Accord Conservatorship of Isaac O. (1987) 190 Cal.App.3d 50, 55, 235 Cal.Rptr. 133;  see also Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030, 1038, 226 Cal.Rptr. 33.)

 Also instructive on the issue of waiver is the opinion of this court in Conservatorship of Moore, supra, 185 Cal.App.3d 718, 732–733, 229 Cal.Rptr. 875, in which we discussed language in Conservatorship of Chambers, supra, 71 Cal.App.3d 277, 286, 139 Cal.Rptr. 357, on the issue of whether a voir dire proceeding of proposed conservatees is required before any conservatorship may be established.   We found neither constitutional nor statutory grounds existed for requiring such a procedure although, because of the state of the record, we were not able to reach the factual issues of that conservatee's ability to make a waiver of hearing rights or his counsel's authorization to do so on behalf of her client.   We commented that “conservatees are not, by reason of their conservatorship, automatically considered incompetent, and their ability to knowingly and intelligently waive their hearing rights is a question of fact․”  (Moore, supra, 185 Cal.App.3d at p. 732, 229 Cal.Rptr. 875;  see also Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1315–1320, 243 Cal.Rptr. 241, and § 5005.)   We were able to infer from the record in Moore, however, that the conservatee had apparently, through counsel, knowingly and intelligently waived his reestablishment hearing sufficiently to support affirmance of the order of reestablishment, even though the factual issues of his ability to make a waiver and his counsel's authorization to do so remained unresolved at that time and could possibly be the subject of future extraordinary writ proceedings.  (Moore, supra, 185 Cal.App.3d at p. 733, 229 Cal.Rptr. 875.)

We analyze the record in light of these rules, and further consider an additional conundrum:  although Daigle's attorney remained on the case for purposes of requesting a hearing and filing a declaration five days before the hearing, he did not appear at that hearing nor did he apparently provide any explanation to the court of the status of the case from his client's point of view.   On appeal, Daigle takes two contradictory positions:  His trial attorney effectively protected his rights to a jury trial or voir dire hearing on his capacity to waive the same or, in the alternative, his attorney's behavior constituted ineffective assistance of counsel and Daigle thus in actuality was unrepresented at his reestablishment hearing without having made an effective waiver of counsel.8

 To unwind these arguments, two issues must be addressed.   First, we note the applicability of the doctrine of ineffective assistance of counsel to the conservatorship context is an unsettled area of the law.  (See, e.g., Waltz v. Zumwalt (1985) 167 Cal.App.3d 835, 838, 213 Cal.Rptr. 529;  Conservatorship of Benvenuto, supra, 180 Cal.App.3d 1030, 1037, fn. 6, 226 Cal.Rptr. 33;  see § 5365, requiring appointment of counsel for a conservatee or proposed conservatee.)   For ineffective assistance of counsel to be grounds for reversal of a judgment or order, two elements must be shown:  Counsel's performance was deficient under prevailing professional norms, such as to result in the withdrawal of a potentially meritorious defense, and prejudice resulted.  (People v. Ledesma (1987) 43 Cal.3d 171, 216–217, 233 Cal.Rptr. 404, 729 P.2d 839;  People v. Pope, supra, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   However, we have no indication here that Daigle had any substantive objections or defenses to the reestablishment of his conservatorship that Short could have raised.   Moreover, as we stated in Conservatorship of Isaac O., supra, 190 Cal.App.3d 50, 54, 235 Cal.Rptr. 133, we assume the competency of trial counsel in the absence of a contrary showing.   Finally, we would not seek to resolve this serious issue in a case as cursorily briefed on the point as is this one.

 Secondly, in light of the authority that waiver of jury trial in conservatorships is to be measured by civil procedural standards (see Maldonado, supra, 173 Cal.App.3d 144, 218 Cal.Rptr. 796), we believe it is appropriate to measure Attorney Short's conduct here by civil procedural standards as well.   The applicable rule was stated in Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 900–901, 187 Cal.Rptr. 592, 654 P.2d 775, where the Supreme Court considered the issue of entitlement to relief from default in the context of a motion to vacate a dismissal under Code of Civil Procedure section 473.   The court stated several alternative tests for the determination of when a client must be bound by an attorney's “ ‘slovenly practice of law’ ” (Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d at p. 900, 187 Cal.Rptr. 592, 654 P.2d 775.):  As long as the attorney-client relationship has not de facto been severed or obliterated, so that the attorney has in effect substituted himself or herself out of the case and abandoned the client, the client remains bound by the attorney's actions.

 Under this test, we do not believe Attorney Short had effectively taken himself off the case;  instead, for whatever reasons, he was pursuing a particular strategy, pattern and practice of conduct as revealed by this record and the facts stated in Pollock (supra, 208 Cal.App.3d 1406, 257 Cal.Rptr. 14).   Moreover, Daigle received the personal notice of the reestablishment proceedings required by section 5362, including the right to jury trial.  (See Conservatorship of Benvenuto, supra, 180 Cal.App.3d 1030, 1037–1039, 226 Cal.Rptr. 33.)   Thus, the court had personal jurisdiction to proceed with the reestablishment.  (See Conservatorship of Isaac O., supra, 190 Cal.App.3d at pp. 53–54, 235 Cal.Rptr. 133.)   We must therefore consider Daigle to be bound by Attorney Short's actions and inactions on his behalf.   By failing to actively pursue the jury trial, Attorney Short effectively waived it on behalf of his client.

Having outlined the rules under which this record must be examined, we turn to an examination of the particular facts of Daigle's case, particularly as contrasted to the record in Pollock (supra, 208 Cal.App.3d 1406, 257 Cal.Rptr. 14).   We shall then discuss the purely statutory and constitutional bases for his arguments.


Application of Standards

 In Pollock (supra, 208 Cal.App.3d 1406, 257 Cal.Rptr. 14) we dealt with a factual and procedural situation very similar to Daigle's.   Pollock was a conservatee suffering from senile dementia, also represented at trial by Attorney Short, who waived his own and his client's presence at the reestablishment hearing.   On appeal, Pollock resisted the reestablishment of her conservatorship on the basis that even though a waiver of presence was made, she never stipulated to reestablishment or waived the presence in court of the physicians whose declarations supported the reestablishment.   We found these contentions unmeritorious and held the waiver of presence of both the conservatee and her counsel amounted to a concession of non-contest of the facts alleged in support of the reestablishment.   We stated that under such circumstances, “it is not necessary to hold a hearing ‘likely [to be] brief and pro forma’ [citing Conservatorship of Moore, supra, 185 Cal.App.3d 718, 730, 229 Cal.Rptr. 875];  the ex parte review by the court as well as other safeguards provided in the conservatorship scheme sufficiently insure against an erroneous deprivation of liberty.   Further, as Moore points out, the benefit of providing the procedural safeguard should be balanced by the cost of providing such protection.”  (Pollock, supra, 208 Cal.App.3d at p. 1413, 257 Cal.Rptr. 14.)   For the latter proposition, Moore discussed the constitutional due process principles surrounding the reestablishment of conservatorships.  (Conservatorship of Moore, supra, 185 Cal.App.3d 718, 728–731, 229 Cal.Rptr. 875.)

The facts in Daigle's case differ from Pollock's in that Attorney Short's declaration on behalf of Daigle contained no language waiving either's presence at the reestablishment hearing (although the declaration is confusingly mismarked as a “waiver of presence”).   However, in both cases, Short failed to appear for the hearing and presented no information to contradict the showing made by the conservator.

Our evaluation of the record showing Attorney Short's conduct on behalf of Daigle leads us to the same conclusion we reached in Pollock:  He and his client essentially conceded they would not be contesting the facts, thus waiving the essentials of a hearing, and no measurable benefit would be gained by conducting a “prove-up” hearing in the absence of an advocate for the conservatee who could pursue confrontation and cross-examination of the conservator and the doctors, and/or present evidence on the conservatee's behalf.  (Pollock, supra, 208 Cal.App.3d at p. 1413, 257 Cal.Rptr. 14.)   Clearly, in fairness to the client, opposing counsel and parties, and to the court which was left in the dark about what to do next, any such request for a hearing should have been pursued to a greater extent than was this one.   We believe Attorney Short's professional conduct, as shown in this record, qualifies under any standard as the “ ‘slovenly practice of law’ ” criticized in Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d at p. 900, 187 Cal.Rptr. 592, 654 P.2d 775.   Nevertheless, due to considerations of the orderly administration of justice, relief is not always available to the client for such misfortune.   To prevent such minimalist representation from being inflicted upon future conservatees, one remedy would be to remove attorneys whose style of practice resembles Short's from the list of counsel available for appointment.   However, on this record, we conclude there is no factual support for Daigle's contentions.

We thus turn to the issue of whether even on this record, there is legal support for the claim of entitlement to a voir dire hearing on the ability of the conservatee to make a valid waiver of jury trial or to consent to the conservatorship without a hearing.   As already discussed, in Conservatorship of Moore, supra, 185 Cal.App.3d 718, 732–733, 229 Cal.Rptr. 875, we found no constitutional or statutory grounds for requiring such a procedure, although we deferred resolution of the waiver and authorization issues for possible extraordinary proceedings.

Here, to support his position that his liberty interests have been infringed, Daigle chiefly relies upon Probate Code section 1828, listing the information to be provided by the court to the conservatee (including the right to jury trial guaranteed by Probate Code section 1827) and on Probate Code section 1825, mandating the conservatee's attendance at the hearing unless certain exceptions apply.  (See fn. 6, ante.)   He also complains on equal protection grounds that a conservatorship investigation report should have been provided in the reestablishment proceedings under Probate Code section 1826 (despite the express exclusion in section 5350 of that section from the incorporated provisions of the Probate Code).   To summarize, he argues nothing in the codes forbids a judicially imposed requirement of the suggested voir dire proceeding.  (See p. 776, ante.)

These arguments, it seems to us, miss the point.   The question is not whether anything in the codes forbids our requiring such a proceeding, but whether anything in the codes or constitutional provisions requires the same.   We believe that where a comprehensive legislative scheme has been enacted to handle specific problems, such as those presented by persons who are or may be gravely disabled, courts should be reluctant to add to the procedures provided by way of judicially created remedies.   As set forth in Pollock, supra, 208 Cal.App.3d 1406, 1411–1413, 257 Cal.Rptr. 14, both federal and state constitutional standards for testing the fundamental fairness of governmental decisionmaking require the balancing of three factors:

“ ‘ “First, the private interest that will be affected by the official action;  second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;  and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.  [Citation.]” ’ ”  (Id. at pp. 1411–1412, 257 Cal.Rptr. 14.)

To these three considerations, state constitutional law adds a fourth:  “․ the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible government official․”  (Pollock, supra, 208 Cal.App.3d at p. 1412, 257 Cal.Rptr. 14, citing People v. Ramirez (1979) 25 Cal.3d 260, 269, 158 Cal.Rptr. 316, 599 P.2d 622.)   Our inquiry, therefore, is whether existing reestablishment procedures fail to meet these standards.   Over slightly different types of challenges, both Pollock and Conservatorship of Moore, supra, 185 Cal.App.3d 718, 229 Cal.Rptr. 875, found they did pass constitutional muster.   The challenges presented here are inadequate to show Daigle's fundamental rights have been invaded, as we will explain.

 First, as already discussed, Daigle's attorney failed to make an adequate showing or record to successfully challenge the ex parte reestablishment procedure followed by the court pursuant to section 5362.   Specific provisions such as section 5362 prevail over more general statutory law (e.g., Prob.Code, § 1825 et seq.).  (See In re James M. (1973) 9 Cal.3d 517, 522, 108 Cal.Rptr. 89, 510 P.2d 33.)   Short did not present any real contest to the allegations of the petition seeking reestablishment and in the face of this lack of opposition, the trial court was justified in treating the matter as undisputed and thus suitable for ex parte resolution.

 Second, although the Legislature expressly excluded the conservatorship investigation requirements of Probate Code section 1825 from the LPS statutory scheme (§ 5350(f)), it provided alternative investigation methods for the establishment of conservatorships in section 5351 and 5356, and provided for ex parte reestablishment procedures in section 5362.   As applied to the facts of this case, there was a rational basis for this differential treatment of the two types of conservatorships:  Although Probate Code conservatorships may involve only private parties and thus necessitate some level of governmental supervision to protect the conservatee, in this LPS conservatorship a public official has always been involved and there is less need for ongoing governmental investigation.   The ex parte reestablishment procedures of section 5362 fall within the standards for measuring the fundamental fairness of governmental decisionmaking as outlined in Pollock, supra, 208 Cal.App.3d at pp. 1411–1413, 257 Cal.Rptr. 14.   Daigle's equal protection argument thus fails.9

Next, although Daigle complains post-hearing remedies such as rehearings and petitions for habeas corpus are inadequate alone to protect his fundamental right not to be unfairly placed under a reestablished conservatorship, the entire reestablishment scheme provides other means of protections to allow any possible arguments or defenses to be made:  Notice and representation by counsel.  (Pollock, supra, 208 Cal.App.3d at p. 1412–1413, 257 Cal.Rptr. 14.)

Finally, the voir dire proceeding as suggested by Daigle 10 could inevitably lead to but one result:  Jury trial in every case of reestablishment of conservatorships for those most gravely disabled of persons who are unable to waive hearing.   We believe this would be a logistically disastrous result.   In addition, the procedure proposed is missing a necessary component.   Specifically, should the court upon inquiry find an inability to waive jury trial or hearing, it, as a neutral adjudicator, cannot unilaterally impose a waiver on the conservatee and proceed to the suggested third step of evaluating the sufficiency of the evidence in support of the petition.   Instead, if incapacity is found, a useless jury trial would have to be held to confirm that incapacity.   This procedure would bring hardship upon the gravely disabled person, his or her caretakers, the conservator, and the judicial system, all in the name of protecting fundamental rights which we believe have already been fairly accommodated in the existing system.   We decline to judicially legislate such a rule.

In short, we find no authority for the proposed voir dire system, and find that any inadequacies in the treatment of Daigle should be laid at his counsel's door, not at the courthouse door;  the trial court fairly evaluated the situation and reached the only possible just result, one that is more in Daigle's best interests as shown by the record than those proposed by his counsel.


Sufficiency of the Evidence

 Daigle attacks the sufficiency of the evidence in the record in two respects, saying it does not support the order reestablishing the conservatorship or the order imposing specified disabilities, such as restrictions on the right to drive, contract, vote, have a firearm, or control medical and psychiatric treatment.   In Conservatorship of Isaac O., supra, 190 Cal.App.3d 50, 57, 235 Cal.Rptr. 133, we recited well-known standards of review of claims of insufficiency of the evidence:

“ ‘[A] “reviewing court is without power to substitute its deductions for those of the trial court.”   More recently Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925–926 [101 Cal.Rptr. 568, 496 P.2d 480], emphasized that “In resolving the issue of the sufficiency of the evidence, we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment․  ‘In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.’  (Original italics;  [citation].)  All conflicts, therefore, must be resolved in favor of the respondent.”  [Citations.]' ”

It is also well settled that where a record is silent on a particular matter, all intendments and presumptions are indulged to support the judgment or order, and error must be affirmatively shown.  (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 268, pp. 276–277.)

Daigle makes several general complaints about the adequacy of the evidence to support the challenged orders.   He first contends the hearsay objections in Attorney Short's declaration 11 invalidated the doctors' declarations in the “Medical Recommendation & Declaration for Reestablishment of Conservatorship.”  (Evid.Code, § 1200.)   He then argues there is no showing in any case that the court at the hearing actually considered that recommendation.   He also cites material from the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, DSM–III—R (3d ed. rev. 1987), of which judicial notice has been requested and granted (by order of Oct. 16, 1989) regarding the definition of the diagnosis “dementia.”   This material, it is argued, shows that “dementia” is not necessarily a “grave disability,” so that the court erred in reestablishing the conservatorship and in imposing the several disabilities without making an express finding of incompetence.  (See § 5331, stating in pertinent part, “No person may be presumed to be incompetent because he or she has been evaluated or treated for mental disorder ․”, italics added.)

 Dealing first with the matter of hearsay, we find no evidentiary defects in the court's reliance (which we must presume from the record in the absence of a contrary showing) on the medical recommendation declarations.   The issue is whether these opinions established continued grave disability beyond a reasonable doubt.  (Conservatorship of Delay, supra, 199 Cal.App.3d 1031, 1036–1037, 245 Cal.Rptr. 216.)  Evidence Code section 805, providing “[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact,” permitted the doctors to express an opinion on the need for conservatorship and the specified disabilities.   Their declaration was made “otherwise admissible” (Evid.Code, § 805) by the terms of section 5361, which requires a petition for reappointment of a conservator to include the opinion of two physicians or qualified psychologists, thus apparently creating a specific hearsay exception.  (Evid.Code, § 1200(b).)   The fact Short raised a hearsay objection does not mean the court had to find it meritorious;  it did not, and was within its authority to reach such a conclusion.

Moreover, as extensively discussed above, Short simply failed to provide any real contest to the allegations of the petition for reestablishment, by way of the allowable methods we mentioned in Pollock, supra, 208 Cal.App.3d 1406, 1413, 257 Cal.Rptr. 14:  Confrontation and cross-examination of the conservator and recommending physicians or presenting evidence on Daigle's own behalf.   (Ibid.)  The petition was essentially uncontroverted and its allegations support the orders made thereon.

 Finally, Daigle contends the court should have made a finding of incompetence in support of the imposition of the disabilities to vote, drive, have a firearm, etc.   As authority, he cites Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577–1578, 254 Cal.Rptr. 552, where the court found an inadequate evidentiary basis for the imposition of disabilities on a conservatee.   In Walker, the issue of disabilities was not addressed at the hearing, and apparently the petition for reestablishment only alleged it was in Walker's best interests to have disabilities imposed.   The opinion does not indicate there were doctors' declarations in support of the disabilities, and apparently the testimony did not support the orders made.   The court opined, “[T]he basis for the court's order in this regard is unclear on this record.   The better practice is for the conservator to disclose, by the questions asked or the argument made, the evidence relied upon to support special disabilities under section 5357.”  (Id. at p. 1578, 254 Cal.Rptr. 552.)

Our case is somewhat different from Walker (supra, 206 Cal.App.3d 1572, 254 Cal.Rptr. 552).   This record includes the doctors' declarations specifically addressing and recommending certain disabilities, and does not include any meaningful challenge to that evidence.   The court was within its power to consider the declarations as a whole and to impose the enumerated disabilities.


The order is affirmed.   We find Daigle was bound by his attorney's actions and inactions on his behalf, and note the trial court was entitled to find this attorney was still actively representing his client.   By so stating, however, we do not in any way condone the “ ‘slovenly practice of law’ ” (Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d at p. 900, 187 Cal.Rptr. 592, 654 P.2d 775) apparent on this record.


1.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”

2.   We set forth the text of applicable statutory law in connection with the discussion portion of this opinion.   For purposes of outlining the facts concerning the reestablishment proceedings, we note only that section 5361 provides in pertinent part for the reappointment of the conservator upon petition supported by the opinion of two physicians or qualified licensed psychologists.   Section 5362(a) provides for notice of the impending termination of the conservatorship period and the right to a court hearing or jury trial, if requested, on the issues of continuing grave disability and the need for conservatorship.   Section 5362(b) provides:  “Subject to a request for a court hearing or jury trial, the judge may, on his or her own motion, accept or reject the conservator's petition․”

3.   The term “prove-up” is specially inserted into the preprinted form.

4.   At oral argument, counsel for the conservator indicated that substituted counsel for Daigle had stipulated to a further reestablishment of this conservatorship in January 1990.   However, we need not treat the matter as moot in any case because of the recurring nature of this type of problem and the important public interests involved.  (Conservatorship of Moore (1986) 185 Cal.App.3d 718, 724–725, 229 Cal.Rptr. 875.)

5.   Section 5350 permits the appointment of a conservator of the person and/or the estate of a gravely disabled person.   The procedures to be followed are incorporated from Probate Code section 1400 et seq., except as stated in the following subdivisions:  (a) a gravely disabled minor may have a conservator;  (b) generally, the priorities for appointment of the conservator shall follow the list in Probate Code, section 1812;  (c) and (g) require coordination of LPS and probate conservatorships and petitions;  (d) jury trial on the issue of grave disability is required;  (e) (newly added in 1989) now provides rules for the imposition of a conservatorship where there is some showing of available third-party assistance (see Conservatorship of Davis (1981) 124 Cal.App.3d 313, 177 Cal.Rptr. 369);  (f) conservatorship investigations are to be conducted under Welfare and Institutions Code provisions [e.g., §§ 5351, 5356] rather than Probate Code provisions;  and (h), “[a]s otherwise provided in this chapter.”

6.   Probate Code section 1825 requires a proposed conservatee to be produced at the hearing unless out of state, medically unable to attend, or unwilling to attend but willing to agree to the conservatorship and the appointment of the conservator.Probate Code section 1827 provides:  “The court shall hear and determine the matter of the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded.”Probate Code section 1828 is a lengthy list of the information required to be provided to the proposed conservatee by the court, and on which the person's opinion is to be sought.   As pertinent here, the information to be provided includes:  (a)(1) the nature and purpose of the proceeding;  (a)(6) the rights to oppose the proceeding, to have a jury trial, and to have representation by counsel appointed if need be.

7.   Current Probate Code section 1826 as well as newly enacted section 1826 (effective July 1, 1990) each list the duties of the court investigator in Probate Code conservatorships.

8.   At oral argument, appellate counsel for Daigle clarified that it is the latter of these two arguments on which he chiefly relies:  Inadequate representation at trial.   We are confined to the record prepared for this appeal and address the issues accordingly.  (See People v. Pope (1979) 23 Cal.3d 412, 426–427, fn. 17, 152 Cal.Rptr. 732, 590 P.2d 859.)

9.   Although this equal protection argument is raised for the first time on appeal, we are able to address it since pure questions of law and constitutional issues are presented.  (Conservatorship of Delay (1988) 199 Cal.App.3d 1031, 1035–1036, fn. 3, 245 Cal.Rptr. 216.)

10.   To reiterate, the proposed voir dire procedure would include these four steps:  (1) inquiring of the conservatee about his or her rights;  (2) determining the level of competence;  (3) judging the sufficiency of the evidence on the petition before accepting it on the court's own motion;  (4) determining the appropriate placement.  (See pp. 776–777, ante.)

11.   This objection in Short's declaration said:  “Counsel enters into no stipulations and objects as hearsay [to] the introduction of any evidence of a statement that was made, other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”

HUFFMAN, Associate Justice.

BENKE, Acting P.J., and NARES, J., concur.