Discretionary Abuse- Conservatorship of G.H., H038826
Conservatorship of G.H., 227 Cal. App. 4th 1435
In regards to whether the public conservator can administer a discovery sanction for the conservatee's failure to comply with medical evaluations. In this case the court found that the public conservator had no outstanding court order for the conservatee's medical evaluation and that the court erred in appointing the public conservator as conservator over G.H.'s person. The public conservator argued that the conservatee's noncompliance with the medical evaluation was a discovery violation and that appropriate sanctions were to be applied.
The public conservator routinely performs medical examinations as part of the process of initiating or reestablishing a conservatorship. To establish a conservatorship, the court needs a doctor's declaration signed by two physicians. The declaration will enumerate the reasons why the doctors believe that the patient is gravely disabled and in need of a conservatorship. To obtain such a declaration the conservatee would need to submit to a mental health evaluation. The doctors will list the diagnosis, prognosis, treatment recommendations, and other relevant information for the court investigator and the court. Even though this is routine practice, the public conservator rarely has a court order ordering that the patient submit to such evaluations. It is enumerated in welfare and institutions code but is not an explicit court order the public conservator can retrieve.
In this case the conservatee objected to having an evaluation leaving the public conservator with no way of submitting a doctor's evaluation. The public conservator threatened to not transport the conservatee to his hearing. When the conservatee refused a second time, the public conservator denied transportation and deemed that the conservatee's refusal forfeited his right to a trial and moved to apply discovery sanctions. Without an order the public conservator sought to reestablish a conservatorship. over the conservatee without a trial as part of a discovery sanction against the conservatee's noncompliance. The public conservator argued that the conservatee's noncompliance with the medical evaluation was a discovery violation and that appropriate sanctions were to be applied.
Upon review the court found that the discovery sanction applied to G.H was inappropriate and reversed the order appointing the public conservator as conservator over the person of G.H. The public conservator argued that the discovery sanction was not severe enough to dismiss the petition to reappoint. The court contended that the public conservator had failed in its duty to specify the time, place, manner, conditions, scop,e and nature of the examinations to the court which are all mandatory in applying a discovery violation and sanction and as a result the public conservator erred in applying terminating sanctions. The public conservator had failed to even file for an order seeking such examinations. Without an required order, the public conservator had abused its discretion in sanctioning G.H for his refusal.
The public conservator contested that despite the improper civil sanction, it did not necessitate reversing the entire order. Upon review the trial court found that the application of CCP § § 2023. 410 was improperly applied and reversed the order appointing the public conservator as conservator over the person of G.H.
Conservatorship of the Person of G.H.
|uly 18, 2014 at 12:00 AM
C.A. 6th; H038826
On May 9, G.H. was not present in court. The Public Guardian explained that G.H. had refused to submit to a mental examination with the Public Guardian’s doctor, and that it did not intend to transport G.H to court unless G.H. submitted to the mental examination.
The probate court thereafter granted the Public Guardian’s request for a discovery sanction and granted the reappointment petition. In its written order, the court explained that G.H.’s failure to submit to a mental examination with the Public Guardian’s doctor authorized the court to impose an evidence or terminating sanction pursuant to Code Civ. Proc. §2032.410. The court found that G.H., as a consequence of his repeated non-compliance, had forsaken his right to an evidentiary hearing.
Section 2032.410 states: “If a party is required to submit to a physical or mental examination … but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction….” The problem here, the court explained, was that G.H. was never required to submit to an examination.
Here, the court found, the trial court never issued an order requiring G.H. to submit to a mental examination. Indeed, the Public Guardian never even filed a motion seeking such a court order. Although the trial court ruled that G.H. need not be brought to court if he declined to submit to a mental examination, this ruling in no way constituted an order requiring G.H. to submit to a mental examination.
Because G.H. did not violate any order of the court in refusing to submit to an examination, the probate court lacked authority to deny him an evidentiary hearing and grant the Public Guardian’s reappointment petition as a terminating sanction.
Conservatorship of G.H., 227 Cal. App. 4th 1435
In regards to whether the public conservator can administer a discovery sanction for the conservatee's failure to comply with medical evaluations. In this case the court found that the public conservator had no outstanding court order for the conservatee's medical evaluation and that the court erred in appointing the public conservator as conservator over G.H.'s person. The public conservator argued that the conservatee's noncompliance with the medical evaluation was a discovery violation and that appropriate sanctions were to be applied.
The public conservator routinely performs medical examinations as part of the process of initiating or reestablishing a conservatorship. To establish a conservatorship, the court needs a doctor's declaration signed by two physicians. The declaration will enumerate the reasons why the doctors believe that the patient is gravely disabled and in need of a conservatorship. To obtain such a declaration the conservatee would need to submit to a mental health evaluation. The doctors will list the diagnosis, prognosis, treatment recommendations, and other relevant information for the court investigator and the court. Even though this is routine practice, the public conservator rarely has a court order ordering that the patient submit to such evaluations. It is enumerated in welfare and institutions code but is not an explicit court order the public conservator can retrieve.
In this case the conservatee objected to having an evaluation leaving the public conservator with no way of submitting a doctor's evaluation. The public conservator threatened to not transport the conservatee to his hearing. When the conservatee refused a second time, the public conservator denied transportation and deemed that the conservatee's refusal forfeited his right to a trial and moved to apply discovery sanctions. Without an order the public conservator sought to reestablish a conservatorship. over the conservatee without a trial as part of a discovery sanction against the conservatee's noncompliance. The public conservator argued that the conservatee's noncompliance with the medical evaluation was a discovery violation and that appropriate sanctions were to be applied.
Upon review the court found that the discovery sanction applied to G.H was inappropriate and reversed the order appointing the public conservator as conservator over the person of G.H. The public conservator argued that the discovery sanction was not severe enough to dismiss the petition to reappoint. The court contended that the public conservator had failed in its duty to specify the time, place, manner, conditions, scop,e and nature of the examinations to the court which are all mandatory in applying a discovery violation and sanction and as a result the public conservator erred in applying terminating sanctions. The public conservator had failed to even file for an order seeking such examinations. Without an required order, the public conservator had abused its discretion in sanctioning G.H for his refusal.
The public conservator contested that despite the improper civil sanction, it did not necessitate reversing the entire order. Upon review the trial court found that the application of CCP § § 2023. 410 was improperly applied and reversed the order appointing the public conservator as conservator over the person of G.H.
Conservatorship of the Person of G.H.
|uly 18, 2014 at 12:00 AM
C.A. 6th; H038826
On May 9, G.H. was not present in court. The Public Guardian explained that G.H. had refused to submit to a mental examination with the Public Guardian’s doctor, and that it did not intend to transport G.H to court unless G.H. submitted to the mental examination.
The probate court thereafter granted the Public Guardian’s request for a discovery sanction and granted the reappointment petition. In its written order, the court explained that G.H.’s failure to submit to a mental examination with the Public Guardian’s doctor authorized the court to impose an evidence or terminating sanction pursuant to Code Civ. Proc. §2032.410. The court found that G.H., as a consequence of his repeated non-compliance, had forsaken his right to an evidentiary hearing.
Section 2032.410 states: “If a party is required to submit to a physical or mental examination … but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction….” The problem here, the court explained, was that G.H. was never required to submit to an examination.
Here, the court found, the trial court never issued an order requiring G.H. to submit to a mental examination. Indeed, the Public Guardian never even filed a motion seeking such a court order. Although the trial court ruled that G.H. need not be brought to court if he declined to submit to a mental examination, this ruling in no way constituted an order requiring G.H. to submit to a mental examination.
Because G.H. did not violate any order of the court in refusing to submit to an examination, the probate court lacked authority to deny him an evidentiary hearing and grant the Public Guardian’s reappointment petition as a terminating sanction.