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Probate Court
Mental Health (LPS) Conservatorship
[Esta página está en español;
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If the adult you are trying to help is not gravely mentally ill, see the
Conservatorship section of this website.
If the adult you are trying to help is developmentally disabled, see the
Limited Conservatorship section of this
website.
Click on a topic to learn more:
- What is an LPS conservatorship?
- What powers does an LPS conservator have?
- Does an LPS conservatee always have to be in a locked facility?
- When can I establish an LPS conservatorship?
- How do I decide if the mentally ill person is gravely disabled?
- What if the mentally ill person refuses to go to a psychiatrist?
- Who is responsible for the mentally ill person during the petition
process?
- What happens if the Court establishes an LPS conservatorship?
- How long does an LPS conservatorship last?
- How do I renew the conservatorship?
- What if the Public Guardian does not contact me?
- How do I find out when the hearing will be?
- How do I serve the forms?
- Will the reappointment of conservatorship be different from the
original appointment?
- What if I am late in asking for the renewal (reappointment of
conservatorship)?
- What if I can’t establish an LPS conservatorship?
- What legal rights does a mentally ill person have when s/he is forced
into a locked facility?
- What is a mental health (LPS) conservatorship?
A mental health (LPS)
conservatorship makes one adult (called the
conservator) responsible for a mentally ill adult (called the
conservatee).
These conservatorships are only for adults with mental illnesses listed in
the Diagnostic and Statistical Manual of Mental Disorders (DSM).
The most common illnesses are serious, biological brain disorders, like:
- Schizophrenia,
- Bi-Polar Disorder (Manic Depression),
- Schizo-affective Disorder,
- Clinical Depression, and
- Obsessive Compulsive Disorder.
LPS conservatorships are not for people with organic brain disorders,
brain trauma, retardation, alcohol or drug addiction, or dementia, unless
they also have one of the serious brain disorders listed in the DSM.
If the person you want to help has a different kind of a mental disorder,
see alternate referral sources.
LPS comes from the names of the California legislators who wrote the LPS
Act in the 1970s: Lanterman, Petris, and Short.
- What powers does an LPS conservator have?
An LPS conservatorship gives legal authority to one adult (called a
conservator) to make certain decisions for a seriously mentally ill person
(called a conservatee) who is unable to take care of him/ herself. If
asked, the Court can give LPS conservator the duty to take care of and
protect the seriously mentally ill person (conservator of the person) and
also the power to handle the financial matters of the seriously mentally
ill person (conservator of the estate).
The conservator can give consent to mental health treatment, even if the
conservatee objects. S/he can legally agree to the use of psychotropic
(mind-altering) drugs (but the conservatee may physically refuse to take
them).
Also, the conservator can agree to place the mentally ill person in a
locked facility if a psychiatrist says it is needed and the hospital
agrees to take the person, whether or not the conservatee agrees.
The conservator can also decide where the mentally ill person will live
when s/he is not in a locked psychiatric facility.
An LPS conservator must have enough medical and social information before
making decisions for the conservatee. And, the conservator must only take
actions that are best for the mentally ill person.
The LPS conservator can also make financial decisions for the seriously
mentally ill person, like paying the bills and collecting a person’s
income.
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- Does an LPS conservatee always have to be in a
locked facility?
No. But, LPS conservatorships often begin when the person’s symptoms
become so severe that they interfere with self-care and safety, and s/he
is placed in a locked facility.
- When can I establish an LPS conservatorship?
The Court will not let you establish an LPS conservatorship unless it
finds beyond a reasonable doubt, that the mentally ill person, is gravely
disabled.
Gravely disabled means that, because of a mental disorder, the person
cannot take care of his/her basic, personal needs for food, clothing, or
shelter.
If you or another adult can provide for the person’s basic needs, the
Court cannot find the person to be gravely disabled. This means you may
not need to establish a conservatorship.
- How do I decide if the mentally ill person is gravely disabled?
You do not decide.
You must take the mentally ill person to a psychiatrist authorized to do
LPS evaluations. The psychiatrist must say the person is gravely disabled.
And, s/he must make a referral to the Public Guardian's Office (PGO).
- What if the mentally ill person refuses to go to
a psychiatrist?
 You can ask Santa Clara County Mental Health
to help you with an involuntary evaluation.
Call Santa Clara County Mental Health’s Access Program, and ask for
Information & Referral:
408- 279-3312
Their address is:
Access Program
2221 Enborg Ct.
San Jose, CA 95128
Or, you can drive the mentally ill person to Emergency Psychiatric
Services (EPS) for an evaluation if it is safe and s/he is willing to go
with you. Their office is at the Valley Medical Center.
Their address is:
Emergency Psychiatric Services
820 Enborg Ct.
San Jose, CA 95128
There are other public service mental health facilities in different parts
of Santa Clara County. You can find them in the Blue Pages of your phone
book, under Government, County Government Offices, Mental Health.
If there is an emergency situation, call EPS at:
408-885-6100
- Who is responsible for the mentally ill
person during the petition process?
In Santa Clara County, the Public Guardian's Office (PGO) acts as both
the LPS investigator and the temporary conservator of the person and/or
estate until the Court decides on your petition.
A PGO staff person will investigate and evaluate the referral to see if,
based on the information provided, the mentally ill person is probably
gravely disabled.
If the LPS criteria seem to be met, the staff person will ask the Probate
Judge to appoint the PGO as temporary conservator for 30 days. During
these 30 days, the PGO staff will keep investigating the disability of the
mentally ill person. They will also protect and care for the mentally ill
person and his/her finances.
Before the 30 days end, the PGO will file a report with the Court. The
report will say:
- If the mentally ill person is gravely disabled; and
- If so, who would be the best person to become the
conservator.
The PGO may recommend that:
- A relative, friend, or private professional conservator
be appointed, or
- The PGO serve as conservator if no one else is available
or appropriate, or
- The Court not establish conservatorship because it is
not needed.
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- What happens if the Court establishes an LPS
conservatorship?
If the Court decides to establish an LPS conservatorship, the judge
will give an order appointing a conservator.
The conservator may be a relative, the PGO, or a private professional
conservator.
The attorney from County Counsel representing the PGO gives the Order to
the court clerk along with the Letters of Conservatorship (GC-350)
that is signed by the appointed conservator. After the clerk files them,
the LPS conservator has the authority to act.
If you are the conservator, you can make copies or ask for certified
copies of the Letters so you can prove what powers you legally have. The
Letters always say you are conservator of the person, but may or may not
say that you are also conservator of the estate.
- How long does an LPS conservatorship last?
An LPS conservatorship only lasts one year.
About 90 days before it expires, the LPS clerk in the Probate Court
Clerk’s Office will mail you (the conservator) a notice of expiration. The
notice will say the date the conservatorship ends. The conservatee
also gets a notice from the Court.
If you need to, you can
petition to renew the conservatorship. Otherwise,
it will end. This means the conservatee is free to make his/her own
decisions, and to refuse treatment.
- How do I renew the conservatorship?
You must prepare a new petition for renewal (reappointment) at least 2-3
months before the current conservatorship expires.
The PGO will send you forms and instructions for filing a Petition for
Reappointment of LPS Conservatorship when they send you your notice of
expiration. You must complete these forms.
You will need two psychiatrists to help you. Get your forms to the
psychiatrists as soon as possible so they will have enough time to fill
them out.
- What if the Public Guardian does not contact me?
You must contact the PGO and ask for the forms you need.
Call them at:
(408) 534-2500
- How do I find out when the hearing will be?
Before you bring your papers to Court to file, call the LPS Probate Clerk
and ask for a hearing date.
Call:
(408) 882-2100, ext. 2652
When you bring your papers to Court, the LPS clerk will review them. If
they are complete, the clerk will file them.
You must write the hearing date on the:
- How do I serve the forms?
When you file your forms with the LPS clerk, s/he will issue the Citation.
Someone over 18 – not you – must personally
serve (give) the conservatee a copy of the Citation. The person who
serves must sign the Certificate of Service on the back of the Citation.
You must also serve a copy of the Notice of Hearing to the conservatee and
any other person the Public Guardian's Office tells you to serve. Then,
complete the Proof of Service at the back of the Notice of Hearing.
After the conservatee is served, take the original Citation and signed Proof of Service
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- Will the reappointment of conservatorship be
different from the original appointment?
No. If the court renews your conservatorship, you and the conservatee have
the same powers, rights and responsibilities as you did with the original
conservatorship.
- What if I am late in asking for the renewal
(reappointment of conservatorship)?
It is your responsibility to keep track of the dates and to renew the
conservatorship on time. If you don’t, the conservatorship will expire
exactly one year after the appointment.
But, if you are a just a few days or weeks late, the Court may establish
the conservatorship retroactively to the expiration date. Still, there is
no LPS conservatorship in effect until you have your Court hearing for
renewal.
It is illegal to force treatment on the former conservatee when the
conservatorship is not in effect.
- What if I can’t establish an LPS
conservatorship?
If a friend or relative is just acting strangely, you may be worried, but
you may not be able to take legal action.
If a mentally ill person does not want to be treated, you cannot force
treatment unless s/he is a danger to him/herself or others. Or, unless the
person cannot take care of him/herself.
If your friend or relative is mentally ill and a danger to him/herself or
to others, you can:
- Try to convince him/her to go with you to an emergency psychiatric
facility, or
- Call 911 or your local police department if there is an emergency.
Most officers are trained to handle mental illness calls. Explain the
problem when you call.
Sometimes, you can put him/her in a locked facility even if s/he
doesn’t want to be there.
If you need more help or advice on how to handle or anticipate problems
that may come up, call the mental health ACCESS line:
1-800-704-0900
- What legal rights does a mentally ill person have
when s/he is forced into a locked facility?
| 24-hour rule |
A psychiatrist must examine the person within 24
hours. |
| 72-hour hold |
State law says any person who is a danger to
him/herself or to others because of a mental disorder or a grave
disability can be placed in a psychiatric hospital for a 72-hour
treatment and evaluation.
The patient is taken to a County Mental Health facility or to
another authorized emergency psychiatric hospital where a
psychiatrist must evaluate his/her condition within 24 hours.
If the psychiatrist says that the person is still a danger to
him/herself or to others, the hospital can keep the person for
another 72 hours.
During this time, the patient does not yet have the right to talk to
a lawyer. And, the hospital staff must approve visits.
Only certain people, like law enforcement officers or crisis team
members, can place a 72-hour hold.
Welfare and Institutions Code Section 5150 |
| 14 days intensive treatment |
Sometimes the professional staff at the 72-hour
facility finds
probable cause that the patient’s mental disorder or grave
disability causes him/her to be a danger to himself/herself or to
others.
If this happens, they tell the patient s/he needs treatment. If the
patient refuses, the facility can keep him/her up to 14 more days
for intensive treatment related to the mental disorder. (See
Welfare & Institutions Code Section 5250.)
But, there must be a hearing before this can happen. The patient has
the right to have a lawyer represent him/her. The facility must tell
the patient about his/her rights, and post those rights where
patients can see them. |
| Commitments after 14 days |
| 3 more days to file for conservatorship |
If the patient seems to need more involuntary
treatment after the 14 days, and will need a conservatorship, the
hospital can keep him/her for 3 more days while someone files for
conservatorship.
See
W&I Code Section 5352.3 |
| 30 more days for involuntary treatment |
Sometimes, after the end of the 14-day period, the
hospital can keep the patient for 30 more days without filing for a
temporary conservatorship.
But, the hospital cannot keep the patient against his/her will for
more than 47 days without a conservatorship.
See W&I Code Section 5270.55 |
| 180 more days for involuntary treatment |
A hospital can keep a patient for 180 days after the
14 days, if s/he:
- hurt, tried to hurt, or threatened to hurt someone during the
time s/he was locked up, and
- has a mental disorder that puts other people in physical
danger.
This can only be used in special cases.
W&I Code Section 5300. |
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