Evidence of Third Party Assistance Must Be Considered
Under Welf & I C §5350(e)(1), a person is not gravely disabled if he or she can survive safely with the assistance of a third party.
See Conservatorship of Early (1983) 35 C3d 244; Conservatorship of Neal (1987) 190 CA3d 685 (conservatee was not gravely disabled because he could provide for his basic needs with the help of his "common-law" wife).
Unless family, friends, and others specifically indicate in writing their willingness and ability to help, however, they must not be considered willing and able to provide this help. Welf & I C §5350(e)(2). The writing requirement is intended to alleviate the painful necessity of public testimony from family members who are unwilling to provide third party assistance. Welf & I C §5350(e)(3). H
Even if a third party offers assistance, the court may still determine that the assistance offered, though well-intentioned, is not sufficient to permit the conservatee to survive safely.
SO WHAT DOES THIS MEAN IN PRACTICE?
IN REAL LIFE PRACTICE, THIS AREA OF THE LAW COMES IN PLAY WHEN THE CONSERVATEE IS DEFENDING THEMSELVES IN COURT. THIS ALSO PLAYS A ROLE WHEN THE CONSERVATEE IS DEEMED INELIGIBLE FOR A CONSERVATORSHIP.
IN THE FIRST CASE THE CONSERVATEE IS GIVEN AN OPPORTUNITY TO DEFEND THEMSELVES IN COURT. THEY WILL BE ADVISED BY THE PUBLIC DEFENDER ON HOW TO PRESENT A CASE TO THE COURT THAT SHOWS THAT THEY CAN CARE FOR THEMSELVES IF DISCHARGED. THE PROBLEM THEREIN LIES IN THE LACK OF FUNDING FROM THE COUNTY TO PROVIDE THESE PATIENTS WITH PROPER TIME WITH THEIR COUNSEL. THUS THE PATIENTS WILL ENTER THE COURTHOUSE WITH A GENERALIZED DEFENSE. TIME AFTER TIME I HAVE SEEN PATIENTS COME IN AND SAY "OH I HAVE A PLACE TO GO" OR "I WILL STAY/FIND A HOMELESS SHELTER ONCE I LEAVE. THERE I CAN FIND SOME FOOD AND FREE CLOTHING." SINCE THE STANDARD OF PROOF IS VERY HIGH; PROOF BEYOND A REASONABLE DOUBT, THE PATIENT'S ARGUMENT IS DISMISSED. JUST AS SEEN WITH THE PATIENTS WHO ARGUE THAT THEY HAVE A VAGUE SENSE OF HOW TO CARE FOR THEMSELVES, I HAVE SEEN PATIENTS WHO DID NEED A CONSEVATORSHIP ARGUE THEIR WAY OUT OF ONE BECAUSE THEY CITED A FAMILY MEMBER OR FRIEND WHO COULD OFFER THEM SHELTER. THEY MAY HAVE PROVIDED IDENTIFYING INFORMATION ABOUT THE PERSON OR AN ADDRESS. THE PERSON MAY HAVE EVEN CALLED IN OR PROVIDED WRITTEN TESTIMONY THAT THEY WERE WILLING TO HELP THEM. THE JUDGE MAY RULE THAT THE PATIENT IS NOT GRAVELY DISABLED ACCORDING TO WELFARE AND INSTITUTIONS. THE PATIENT IS DISCHARGED BECAUSE THEY DISPROVED THE LEGAL CRITERIA BUT THEY RELAPSE DUE TO THEIR MENTAL ILLNESS.
IN REAL LIFE PRACTICE, THIS AREA OF THE LAW COMES IN PLAY WHEN THE CONSERVATEE IS DEFENDING THEMSELVES IN COURT. THIS ALSO PLAYS A ROLE WHEN THE CONSERVATEE IS DEEMED INELIGIBLE FOR A CONSERVATORSHIP.
IN THE FIRST CASE THE CONSERVATEE IS GIVEN AN OPPORTUNITY TO DEFEND THEMSELVES IN COURT. THEY WILL BE ADVISED BY THE PUBLIC DEFENDER ON HOW TO PRESENT A CASE TO THE COURT THAT SHOWS THAT THEY CAN CARE FOR THEMSELVES IF DISCHARGED. THE PROBLEM THEREIN LIES IN THE LACK OF FUNDING FROM THE COUNTY TO PROVIDE THESE PATIENTS WITH PROPER TIME WITH THEIR COUNSEL. THUS THE PATIENTS WILL ENTER THE COURTHOUSE WITH A GENERALIZED DEFENSE. TIME AFTER TIME I HAVE SEEN PATIENTS COME IN AND SAY "OH I HAVE A PLACE TO GO" OR "I WILL STAY/FIND A HOMELESS SHELTER ONCE I LEAVE. THERE I CAN FIND SOME FOOD AND FREE CLOTHING." SINCE THE STANDARD OF PROOF IS VERY HIGH; PROOF BEYOND A REASONABLE DOUBT, THE PATIENT'S ARGUMENT IS DISMISSED. JUST AS SEEN WITH THE PATIENTS WHO ARGUE THAT THEY HAVE A VAGUE SENSE OF HOW TO CARE FOR THEMSELVES, I HAVE SEEN PATIENTS WHO DID NEED A CONSEVATORSHIP ARGUE THEIR WAY OUT OF ONE BECAUSE THEY CITED A FAMILY MEMBER OR FRIEND WHO COULD OFFER THEM SHELTER. THEY MAY HAVE PROVIDED IDENTIFYING INFORMATION ABOUT THE PERSON OR AN ADDRESS. THE PERSON MAY HAVE EVEN CALLED IN OR PROVIDED WRITTEN TESTIMONY THAT THEY WERE WILLING TO HELP THEM. THE JUDGE MAY RULE THAT THE PATIENT IS NOT GRAVELY DISABLED ACCORDING TO WELFARE AND INSTITUTIONS. THE PATIENT IS DISCHARGED BECAUSE THEY DISPROVED THE LEGAL CRITERIA BUT THEY RELAPSE DUE TO THEIR MENTAL ILLNESS.