Civil Litigation

The LPS Act, which governs the involuntary treatment of the mentally ill in California, was enacted in order to end “the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program.” (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008; §5001.) 

Gravely disabled means a result of a mental disorder, the conservatee “is unable to provide for his or her basic personal needs for food, clothing, or shelter.” (§ 5008, subd. (h)(1)(A).)

Our Evaluation:

• Interview with the proposed conservatee
• Interview interdisciplinary treatment team members
• Review of legal records
• Review of medical records 
• Written report including findings on grave disability, capacity to consent to routine and psychiatric medications and finances, and recommend the appropriate level of placement
• Consultation with attorney

Expert testimony is also provided when requested in LPS conservatorship cases.

The Sixth Amendment to the Constitution guarantees all citizens the right to a fair trial when accused of a crime and to know and understand the nature of the accusations made against them. In Dusky v. United States (1960) The U.S. Supreme Court held that the right of an incompetent defendant to avoid is trial is a fundamental aspect of our criminal justice system. 

In California, if a defendant is found by the court to be incompetent to stand trial they are sent to the Department of State Hospitals to receive treatment for competency restoration. If after two years (or one year if the defendant is charged with a misdemeanor) the defendant is still incompetent, then there are two avenues:

1. They can be placed into an LPS (Lanterman-Petris-Short) Conservatorship.
2. They can be placed into a Murphy Conservatorship under Welfare and Institutions Code Section 5008, subdivision (h)(1)(B).

When establishing a Murphy conservatorship, the court shall consider the purposes of protection of the public and the treatment of the conservatee. A Murphy conservatorship can be established for a person who has been found mentally incompetent under Penal Code § 1370 under any four of the following criteria:

1. The complaint, indictment, or information pending against the person at the time of the commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person;
2. The complaint, indictment, or information has not been dismissed.
3. As a result of mental disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or to assist counsel in the conduct of his defense in a rational manner.
4. As a result of mental disorder, the person represents a substantial danger of physical harm to others.

If all the criteria are met, then the county’s Public Guardian’s office will do an investigation to determine if a Murphy Conservatorship is appropriate. If the defendant is conserved, then they will continue to stay in a state hospital until they are found to be competent or no longer represent a substantial danger of physical harm to others. An attorney can have their client evaluated to see if their client meets criteria for a Murphy conservatorship. 

Our Evaluation:

• Interview with the client
• Interview interdisciplinary treatment team members
• Review of legal records
• Review of medical records 
• Evaluation of competency to stand trial
• Risk assessment 
• Written report 
• Consultation with attorney

Expert testimony is also provided when requested in Murphy conservatorship cases.

Conservatorship

There are two types of conservatorships in California: LPS and Probate. LPS conservatorships are established under the Lanterman-Petris-Short Act and are governed by the California Welfare and Institutions Code (WIC). Individuals under LPS conservatorship usually have a severe mental illness like schizophrenia, schizoaffective disorder, or bipolar disorder. Due to their severe mental illness they are unable to provide for their food, clothing, or shelter. As such, a conservator is appointed to assist in caring for the conservatee.

Distinctly different, probate conservatorships are governed by the California Probate Code and are based on a person’s inability to properly provide for his or her needs for physical health, food, clothing, and shelter or are unable to resist fraud or undue influence stemming from advanced age or other incapacity.

Determining Capacity – Medical Care & Financial

Incompetence may not be presumed because the individual has been evaluated or treated for a mental disorder [WIC §5331 and §5326.5] or because of a diagnosis of being mentally ill, disordered, abnormal, or mentally defective (Riese v. St. Mary’s Hospital (1987)). The California Probate Code §813 outlines the criteria necessary for the determination of capacity to give informed consent to a proposed medical treatment. Case law provides additional guidance as noted in Riese v. St. Mary’s Hospital (1987) outlining the specific competency to consent to drug treatment should focus primarily on:

a) whether the patient is aware of his or her situation (e.g., Is the court satisfied with the existence of psychosis; does the individual acknowledge that condition?);

b) whether the patient is able to understand the benefits and risks of, as well as the alternatives to, the proposed intervention; and

c) whether the patient is able to understand and to knowingly and intelligently evaluate the information….and otherwise participate in the treatment decision by means of a rational thought process.

The California Probate Code §1801(b) notes “a conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence…” For both financial and medical capacity, the standard of proof remains as “clear and convincing” evidence, with the burden of proof on the petitioner (Conservatorship of Waltz, 1986).

Evaluating capacities involves a thorough assessment of multiple sources of data, including functional, diagnostic, cognitive, psychiatric/emotional, values, risks, and possible interventions (American Psychological Association, 2008). While no prescribed battery of tests exists to determine whether an individual is gravely disabled, when it comes to capacity assessments, the current literature encourages functional assessments that describe task-specific deficits versus global findings or a diagnosis (Grisso, 2003).

Undue Influence

Pursuant to WIC Section 15610.70 “undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.

Examples of undue influence may include:

• Step-parents unduly influencing spouse (e.g., step-mother unduly influencing husband)
• Children unduly influencing elderly parents
• Caregivers unduly influencing elders
• Family friends unduly influencing elders
• Service-providers unduly influencing elders (e.g., physicians, dentists, chiropractors, students, teachers, therapists)

In determining whether a result was produced by undue influence, all of the following shall be considered:

1. The vulnerability of the victim. Evidence of vulnerability may include but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

2. The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

3. The actions or tactics used by the influencer. Evidence of actions or tactics used may include:
   • Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
   • Use of affection, intimidation, or coercion.
   • Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

4. The equity of the result. Evidence of the equity of the result may include:
   • The economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing
   • The relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
   • Evidence of an inequitable result, without more, is not sufficient to prove undue influence

Testamentary Capacity

Testamentary capacity is the capacity of an individual to create or change a will. In order for a will to be considered valid, at the time of the will’s creation an individual must understand the nature and purpose of a will, who the natural heirs are, and the nature and extent of one’s assets.

Disorders that may influence cognitive capacities in this area include various dementias and related disorders with memory and executive functioning deficits, Parkinson’s disease, traumatic brain injuries, and developmental disorders. Severe mental disorders, like schizophrenia, delusional disorder, and bipolar disorder, can also interfere with a capacity if they impair rational decision-making (e.g., an individual harboring a delusion that a family member is trying to poison him or her).

At the time of the execution of the will, the testator needs to know:

• the nature and extent of the assets and property of the estate;
• the natural heirs of his/her bounty (including individuals such as relatives and friends, charities, organizations, and religious organizations) whether any heir actually receives a bequest or receives nothing;
• the significance of a will as governing the distribution of property after the testator’s death In some contexts, there is a fourth element that adds a deliberative aspect to “knowledge”;
• the testator should have a rational plan for the distribution of property after death.

In California, anyone who is at least 18 years old and of sound mind can make a will. “Sound mind” means having the testamentary capacity and the law describes this as being “mentally competent.”

Mental competency means that, at the time the will was signed, the “testator” (person signing the will) was able to do all of the following:

(1)   Understand the nature of the testamentary act. The person knew that they were given specific instructions on who their beneficiaries would be and what property (real or personal) the beneficiaries would receive.

(2)   Understand and recollect the nature and situation of their property. 

(3)   Understand who their close relatives are and how they will be affected by the will. 

(4)   The testator must not suffer from a mental disorder (symptoms of hallucinations or delusions).  

A testamentary capacity expert witness provides assessments of the mental and legal capacity of individuals to make or change a will. Courts and attorneys rely on forensic psychologists with expertise in decisional capacity to assist in testamentary capacity cases. A testamentary capacity expert witness provides assessments of the mental and legal capacity of individuals to make or change a will.

The most common problems found in testamentary capacity evaluations include:

• failure to presume competence
• failure to allow for a novel or unexpected bequests
• failure to obtain accurate lists of assets
• reliance on diagnosis or structural brain changes, rather than functional criteria
• confusing impairments on standardized tests with failure to meet the relevant criteria
• misapplying the question of delusions

Testamentary capacity is fundamentally a matter of functional ability and is therefore largely independent of a diagnosis alone.

Our Evaluation:

• Interview with the client
• Mental status examination of the client
• Psychological Testing
  • Independent Living Scales (ILS)
  • The Repeatable Battery for the Assessment of Neuropsychological Status (RBANS)
  • MacArthur Competence Assessment Tool for Treatment (MacCAT-T)
  • Mini-Mental Status Examination – 2nd Edition (MMSE-2) 

• Collateral Interviews of medical and mental health professionals

• Collateral Interviews with family and friends

• Review of legal records

• Review of medical records

• Written report including the evaluation findings on

  • grave disability

  • undue influence

  • capacity to consent to routine and psychiatric medications

  • capacity to manage finances

  • recommendation of the appropriate level of placement
• Consultation with an attorney

Expert testimony is also provided when requested in conservatorship, decisional capacity, testamentary capacity, and undue influence cases.