PLUMER v. EARLY (1983)

In this appeal the primary issue is the definitional meaning of the words “gravely disabled” as used in the Lanterman-Petris-Short Act (LPS Act).  (Welf. & Inst.Code, § 5000 et seq.)   As applicable herein, the LPS Act defines “gravely disabled” as “[a] condition in which a person, as a result of a mental disorder, is unable to provide for his basic personal needs for food, clothing, or shelter; ․”  (Welf. & Inst.Code, § 5008, subd. (h)(1).)

The conservatee appeals from the judgment and order of conservatorship after a jury found him to be “gravely disabled” (Welf. & Inst.Code, § 5358), contending reversible error in the refusal of the trial court to admit evidence of the availability of the help of family and friends to assist appellant in meeting his basic needs and the failure to instruct that a person is not gravely disabled if he can meet his basic needs with the assistance of others.   In addition, appellant asserts the district attorney may not serve as public guardian as the offices are incompatible;  that the conservatorship report was inadequate;  that the trial court erred on refusing the conservatee's proposed instructions that an atypical lifestyle does not constitute a grave disability and that a person is not gravely disabled if he voluntarily accepts treatment but the proposed treatment plan was and is inadequate.

We conclude the trial court's failure to admit evidence of and to instruct on the availability of assistance of others to meet the basic needs of a person afflicted with a mental disorder was prejudicially erroneous requiring reversal.

We do not infer, imply or determine that given a full presentation of the facts and proper instructions, appellant herein would be found by the triers of fact to be outside the purview of the LPS Act, that is, not gravely disabled.   We determine only that evidence of available assistance by family members or friends which will enable one suffering from a mental disorder to meet his or her basic needs for food, clothing and shelter is admissible and that proffered instructions on this issue when tendered by the evidence must be given.

Factually the record discloses that during the summer of 1981 Joel Early lived in Yreka, apparently in the back yard of his sister's house.   He frequently wandered about town in a dirty, disheveled and odoriferous condition.   He was seen by the coordinator of the County Mental Health Department in an effort to arrange for shelter and by the staff of Siskiyou General Hospital for treatment of infections caused by his dirty and urine-soaked clothing.   On September 15, 1981, appellant was admitted to the hospital and a conservatorship referral was made.   The psychiatrists who examined Mr. Early concurred in a diagnosis of schizophrenia and that his incontinence was due to his mental condition.   There was agreement that Mr. Early was not capable of caring for his medical or mental problems himself, particularly as he refused voluntary treatment with psychotropic medication.

At trial on the issue of whether appellant was gravely disabled appellant's counsel sought to introduce evidence that appellant could meet his needs for food, clothing and shelter with the assistance of family and friends.   Also proposed were two jury instructions directing the jury to find Early was not gravely disabled if he was able to provide for his basic personal needs with the assistance of willing and responsible family or friends.¹  Both requests were denied.

The issue tendered by the proffered evidence and instructions has been considered by three other districts of the Court of Appeal, with disparate rulings.   In Conservatorship of Buchanan (1978) 78 Cal.App.3d 281, 289, 144 Cal.Rptr. 241, the First District held “the pertinent inquiry on the issue of grave disability is whether the conservatee himself is able to provide for his basic needs and not, as Buchanan maintains, whether he can do so with the assistance of third parties.”  (Original italics.)   The court reasoned the LPS Act had separated the adjudication of gravely disabled from the consideration of treatment and to allow the jury to consider the willingness and ability of third persons to care for the conservatee, would not only confuse the jury but intrude on the power of the trial court to determine the course of treatment.   (P. 290, 144 Cal.Rptr. 241.)

In Conservatorship of Davis (1981) 124 Cal.App.3d 313, 321, 177 Cal.Rptr. 369, the Second District disagreed with Buchanan and concluded “a person is not ‘gravely disabled’ within the meaning of section 5008, subdivision (h)(1) if he or she is capable of surviving safely in freedom with the help of willing and responsible family members, friends or third parties.”   The Davis court examined the LPS Act and found no indication that evidence of third party help was to be excluded from the jury's consideration.  (P. 323, 177 Cal.Rptr. 369.)   The court reasoned the intent of the Act was to allow the jury to determine whether a conservatorship is necessary in light of all the relevant facts, and to limit the jury to the sole issue of whether the person was able to provide his basic personal needs unaided by others would seriously infringe on the conservatee's due process rights.  (Pp. 323–324, 177 Cal.Rptr. 369.)   It was stated “[t]he legislative focus of the LPS Act is on protecting the nondangerous gravely disabled person and allowing that person to live safely in freedom or the least restrictive alternative if he or she can do so, with or without the aid of appropriate others;  it is not to force the person proposed for conservatorship to pass a theoretical test of ability to survive and provide necessities alone where there are in fact willing, responsible family, friends and others ready to help.”  (P. 326, 177 Cal.Rptr. 369.)

The conclusion reached in Davis was recently adopted by Conservatorship of Wilson (1982) 137 Cal.App.3d 132, 186 Cal.Rptr. 748.   In Wilson, the Fourth District held it was error to instruct the jury the person is gravely disabled if he or she is unable, “ ‘unassisted ’ ”, to provide for his or her basic personal needs.  (P. 134, 186 Cal.Rptr. 748;  italics added.)   The court cited Davis and added that in modern society no one lives completely independently of everyone and everything.   It was therefore too much to ask a proposed conservatee to do so.  (P. 136, 186 Cal.Rptr. 748.)

We are in accord with Davis and Wilson.   One of the stated purposes of the LPS Act is “[t]o end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons ․ and to eliminate legal disabilities.”  (Welf. & Inst.Code, § 5001, subd. (a).)  To this end, the law must “strive to make certain ․ only those truly unable to take care of themselves are being assigned conservators under the LPS Act and committed to mental hospitals against their will.”  (Conservatorship of Roulet (1979) 23 Cal.3d 219, 225, 152 Cal.Rptr. 425, 590 P.2d 1.)   We agree with Wilson that it is unreasonable to force the conservatee to prove he or she is capable of an entirely independent existence and suggest there are few members of the general public who are capable of such an existence.²  We all depend, to varying degrees on the assistance of others (e.g., parents, mechanics, the farmer, the tailor) to make our way in the world.   Where willing and responsible others are able to assist a person in providing his or her basic personal needs the person is not, in our view, “truly unable to take care of themselves.”  (Conservatorship of Roulet, supra, 23 Cal.3d at p. 225, 152 Cal.Rptr. 425, 590 P.2d 1.)   Moreover, in such a situation the necessity of state intervention as a provider of these basic needs is reduced, thereby fulfilling another purpose of the LPS Act, “to prevent duplication of services and unnecessary expenditures.”  (Welf. & Inst.Code, § 5001, subd. (f);  emphasis added.)

The state has no greater interest in involuntarily confining a mentally disturbed person who can care for basic needs with the assistance of willing and able third persons than it has in confining a physically handicapped or aged person who requires the assistance of friends or relatives to meet such needs.   This issue was forcefully highlighted in O'Connor v. Donaldson (1975) 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396, wherein Donaldson had been civilly committed for nearly 15 years, without any program designed to alleviate or cure his alleged illness.  (Pp. 567–569, 95 S.Ct. at pp. 2489–2490, 45 L.Ed.2d at pp. 402–403.)   The Court questioned:  “May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community?   That the State has a proper interest in providing care and assistance to the unfortunate goes without saying.   But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution.   Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends.”  (P. 575, 95 S.Ct. at p. 2493, 45 L.Ed.2d at p. 407.)   The Court held “[i]n short, a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”  (P. 576, 95 S.Ct. at p. 2494, 45 L.Ed.2d at p. 407.)

(Buchanan summarily rejected the persuasive force of O'Connor v. Donaldson in the present context as O'Connor did not involve the state's power to confine an individual for treatment.  (Conservatorship of Buchanan, supra, 78 Cal.App.3d at p. 291, 144 Cal.Rptr. 241.)   We disagree with Buchanan and conclude O'Connor is persuasive for two reasons.   First, as we previously noted, there is no necessity of state intervention, even to provide treatment, where care can be provided through the good offices of family or friends.   Second, we believe O'Connor has been implicitly incorporated in the LPS structure by statutory amendment.

Welfare and Institutions Code section 5350 provides in part:  “The procedure for establishing, administering and terminating conservatorship under this chapter shall be the same as that provided in Division 5 (commencing with Section 1701) of the Probate Code, ․”  Present section 1801, subdivision (a) of the Probate Code, substantially in accord with Welfare and Institutions Code section 5008, subdivision (h), provides in part:  “A conservator of the person may be appointed for a person who is unable properly to provide for his or her personal needs for physical health, food, clothing, or shelter, ․”  The section from which this statute was derived allowed a conservatorship to be imposed if, for enumerated reasons, the person “is unable properly to care for himself ․”  (Former Probate Code, § 1751, added Stats.1957, ch. 1902, p. 3307;  italics added.)   We perceive the distinction between caring for oneself and providing for one's needs to be both significant and intentional, a perception reinforced by an amendment to former Probate Code section 1460.   That section provided for a guardianship to be imposed upon a person, who for various reasons is “unable, unassisted, to properly manage and take care of himself ․”  (Added by Stats.1891, ch. 76, § 1, p. 68;  italics added.)   The parallel to former Probate Code section 1751, supra, is apparent.   In 1976, the section was amended to delete the word “unassisted ” (see Stats.1976, ch. 1357, § 5, p. 6182).   Commentators recognized this change was in direct response to the 1975 decision in O'Connor v. Donaldson.  (See Alexander, On Being Imposed Upon By Artful or Designing Persons—The California Experience with the Involuntary Placement of the Aged (1977) 14 San Diego L.Rev. 1083, 1095.)   We similarly conclude it represents a legislative recognition that trial courts must examine the willingness and ability of third persons to assist the proposed ward or conservatee before imposing an involuntary confinement under the Probate Code.  Section 5350 imports this reasoning to the conservatorship provisions of the Welfare and Institutions Code.

 Nor do we agree, as expostulated in Buchanan, supra, that allowing the jury to hear evidence of third persons' willingness to assist the proposed conservatee will confuse the jury or infringe on the trial court's power to choose the course of treatment.   That issues to be tried are complicated or fraught with problems does not reduce the appellant's right to a trial by jury.  (Paularena v. Superior Court (1965) 231 Cal.App.2d 906, 914, 42 Cal.Rptr. 366.)  “A juror is not some kind of dithering nincompoop, brought in from never-never land and exposed to the harsh realities of life for the first time in the jury box.”  (People v. Long (1974) 38 Cal.App.3d 680, 689, 113 Cal.Rptr. 530.)   Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.   (Henderson v. Los Angeles Traction Co. (1907) 150 Cal. 689, 697, 89 P. 976.)   Certainly a jury is capable of properly assessing the evidence of actual or potential assistance by third persons in determining whether a proposed conservatee is gravely disabled.   Nor does the admission of this evidence limit in any way the trial court's options in choosing a plan of treatment if the jury determines the person is gravely disabled.   The same range of placement options are available, including placement with family or friends.  (Welf. & Inst.Code, § 5358.)

We agree with respondent that the primary purpose of the LPS Act is to protect the mentally disordered person (Welf. & Inst.Code, § 5001, subd. (g)), but we do not agree this protection must in all cases be provided by a state appointed conservator.   As noted in Conservatorship of Roulet, supra, 23 Cal.3d at p. 225, 152 Cal.Rptr. 425, 590 P.2d 1, “ ‘[e]xperience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.   Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.   The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.’  (Olmstead v. United States (1928) 277 U.S. 438, 479 [48 S.Ct. 564, 572, 72 L.Ed. 944, 957, 66 A.L.R. 376] (dis. opn. of Brandeis, J.).)”   The purpose of protecting the mentally disordered person must be read in concert with the purpose of ending the inappropriate, indefinite and involuntary commitment of such persons.  (Welf. & Inst.Code, § 5001, subd. (a).)  The two purposes can be achieved by avoiding inappropriate commitment of a mentally disordered person where there are those willing and able to provide the protection required.   This does not presage, as respondent contends, “a return to the appalling conditions at the turn of the century, when mentally ill persons were locked in attics and upstairs rooms.”

As we view the broad purpose of the LPS Act, imposition of a conservatorship should be made only in situations where it is truly necessary.   To accomplish this purpose evidence of the availability of third party assistance must be considered.  (Conservatorship of Roulet, supra, 23 Cal.3d at p. 225, 152 Cal.Rptr. 425, 590 P.2d 1;  Conservatorship of Davis, supra, 124 Cal.App.3d at p. 323, 177 Cal.Rptr. 369.)

 We conclude the definition of the phrase “gravely disabled” as a condition in which the person is “unable to provide for his basic personal needs for food, clothing, or shelter, ․”  (Welfare & Institutions Code section 5008, subdivisions (h)(1)), was intended to encompass a consideration of whether the person could provide these basic needs with or without the assistance of willing and responsible family members, friends, or other third parties.  (Conservatorship of Davis, at p. 325, 177 Cal.Rptr. 369.)   It was error to instruct the jury the appellant was not gravely disabled only if appellant had the ability to provide for his basic needs without the assistance of other available resources.   Conversely, the trial court erred in refusing to allow appellant to present evidence that he could survive safely in freedom with the help of willing and responsible family members or friends and in refusing appellant's proposed instruction to that effect.   Without the evidence of potential assistance to appellant by willing and responsible others, and proper jury instructions on the significance of this evidence in making the determination of “gravely disabled”, it is impossible to know what the jury's conclusion would have been.   The court's error was not harmless beyond a reasonable doubt.  (Conservatorship of Wilson, 137 Cal.App.3d at pp. 135–136, 186 Cal.Rptr. 748.)

 Appellant also contends it was error to appoint the public guardian of Siskiyou County as conservator for appellant as both this office and the office of the district attorney are held by the same individual.   Appellant urges the offices are incompatible and the order appointing the public guardian must be vacated.   We disagree.

The offices of public guardian and district attorney are not inherently incompatible.  (34 Ops.Cal.Atty.Gen. 50, 51 (1959).)   A potential for conflict exists in the situation where a ward or conservatee or ward is accused of a criminal offense, but this conflict can be avoided by recusing the district attorney from the case.  (See Pen.Code, § 1130.)   Moreover, the Legislature has implicitly sanctioned the combination of the two offices by allowing counties to combine the offices of public administrator and public guardian (Welf. & Inst.Code, § 8001) and to combine the offices of district attorney and public administrator.  (Gov.Code, § 24300, subd. (l ).)  The appointment of the public guardian as conservator in this case was not error.

 Appellant urges it was error to appoint a permanent conservator before trial.   We disagree with appellant's characterization of the appointment.   The court appointed a conservator, pending the outcome of the trial.   In substance, this was a temporary conservatorship which was well within the authority of the court.  (Welf. & Inst.Code, § 5352.1.)   If appellant objected to this procedure or the adequacy of the conservatorship investigation he could have challenged the court's actions by writ of habeas corpus prior to trial.  (Welf. & Inst.Code, § 5275.)   He chose not to do so, and the jury, without being informed a temporary conservatorship had been imposed, found him gravely disabled.   Any harm arising from appellant's asserted errors was thereby rendered harmless.

 Appellant's requested instruction that an “atypical” lifestyle was not sufficient reason to find him gravely disabled was adequately covered by other instructions.

 Appellant contends the trial court erred in refusing his instruction that he was not gravely disabled if he voluntarily accepted treatment.   This instruction has no basis in the law or the record.   Appellant consistently refused treatment for his mental disorder.   That he allowed hospital staff to bathe him and treat his wounds does not mean he voluntarily accepted treatment in the sense intended.  (Welf. & Inst.Code, § 5352.)   The consideration of whether a proposed conservatee is willing to voluntarily accept treatment comes when a conservatorship recommendation is made.  (Ibid.)  It is not determinative of whether the person is gravely disabled.

Respondent concedes the treatment plan proposed for appellant was inadequate.   This problem can be remedied following retrial, if necessary, when a new treatment plan will be proposed.  (Welf. & Inst.Code, § 5352.6.) ³

The judgment is reversed.

FOOTNOTES

1.   Appellant's proposed instructions were as follows:  Proposed instruction No. 4 read:“The term ‘gravely disabled’ refers to a legal, not a medical disability.   It is a survival disfunction and is measured by functional inabilities pertaining to the providing of basic personal needs for food, clothing or shelter.“A person is gravely disabled if, as a result of a mental disorder, he is unable to provide for his basic personal needs for food, clothing or shelter.“A person is not gravely disabled if he is able to survive on his own, or if he is able to enlist the aid of willing and responsible third parties in providing for his basic personal needs for food, clothing and shelter.”Proposed instruction No. 7 read:  “You are instructed that if you find Joel Patrick Early is capable of surviving in freedom by himself or with the help of willing and responsible family members or friends you shall find that he is not gravely disabled.”

2.   The jury in the present case was instructed in accord with Buchanan as follows:“The ability to provide for these basic needs requires more than the physical and mechanical ability to do certain acts;  it means that the person be able to function and maintain himself without the assistance of other available resources.   However, he need not necessarily be financially capable of self-support;  he need only be aware of the social services and resources available to him, and capable of applying any income he receives, regardless of source, to provide for his basic personal needs.”  (Italics added.)

3.   At oral argument, respondent requested judicial notice that a petition to terminate the conservatorship in question had recently been filed.   Since such proceedings, to our knowledge, have not been finalized, we do not consider the issues herein rendered moot.

CARR, Associate Justice.

EVANS, Acting P.J., and BLEASE, J., concur.