CASE UPDATE: Conservatorship of B.C.
On December 16, 2016, the Appellate Court released the opinion, Conservatorship of B.C., which addressed whether a proposed conservatee must waive their right to a jury trial. The opinion comes after Conservatorship of Heather W. (2016) 245 Cal.App.4th 378, 381, where the court held that in conservatorship proceedings under the Lanterman-Petris-Short Act “the trial court must obtain a personal waiver of a jury trial from the conservatee, even when the conservatee expresses no preference for jury trial.” The Court followed an increasing amount of cases which find that jury waivers must be secured from individuals facing a substantial loss of personal freedom in civil commitment proceedings aimed at “protecting the public and treating severely mentally ill persons.” In Conservatorship of B.C., the Court found that a proposed conservatee does not need to expressly waive their right to a jury trial because the proceedings pose no threat to confinement and are conducted “according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee.” (Probate Code § 1827.)
In this case, an aunt was appointed conservator over her niece who suffered brain damage after an overdose of methamaphedamine and alcohol. The aunt was appointed after a bench trial was held finding that her husband would be unfit to serve as conservator. The niece had first hired a private attorney who requested a jury trial however a public defender was subsequently appointed and he did not renew the request.
After appointment, the aunt attempted to remove conservatee from her husband’s home after conservatee tested positive for drug use. This action facilitated an appeal by conservatee to the conservatorship order. The main ground for appeal was that conservatee did not expressly waive her right to a jury trial, which amounted to a reversible error.
Conservator relied on cases where involuntary confinement was at issue, such as LPS conservatorships. In those proceedings, a proposed conservatee must expressly waive their right to a jury trial. However, probate conservatorships do not contemplate involuntary confinement and the probate statutes, unlike penal statutes, do not expressly require a waiver. For those reasons the court is not required to obtain an express jury trial wavier in probate conservatorship proceedings. The court did find that the court made a mistake by not informing the conservatee of her right to a jury trial, but found that the error harmless, as conservatee was represented by counsel.
If a loved one is unable to manage care and finances, a conservatorship may be necessary. For more information on conservatorship proceedings contact the Law Office of Stephanie Macuiba at (949) 697-5958.