The Right of Michelle Hoffman, and Other Mentally Ill Probate Conservatees, to Mental Health Care

Michelle Hoffman, A Schizophrenic Probate Conservatee

Deprived of Her Legal Right to Mental Health Care

By the Probate Court

. . . and a Call for Amicus Briefs

Pleadings Filed in the Court of Appeal

2. Exhibits for Petition for Writ of Mandamus, Vol. I

3. Exhibits for Petition for Writ of Mandamus, Vol. II

4. Opposition to Writ of Mandate; by Lynard Hinojosa, Esq., “for” Michelle Hoffman, Supporting Judge Bobb’s decision to deny mental health care to Michelle Hoffman

Relevant Legal Authorities

1. California Law Revision Commission Memorandum 89-097 [.pdf]

2. California Law Revision Commission Study L-3029 — Court-Authorized Medical Treatment [.pdf]

3. 20 California Law Revision Commission Reports, pages 1 – 2000 [.pdf]

4. The LPS Act: California Welfare and Institutions Code Sections 5000 - 5372 [Html]

Michelle Hoffman is a chronic long-term actively psychotic schizophrenic. Michelle was homeless for about 20 years, during which time she attempted suicide a number of times, drove a car into a collision with another car, because voices told her to do that, and was raped at least once but I think a few times. When we obtained the Probate Conservatorship, Michelle was so filthy and stunk so badly that, if she were a pet dog, her owner would be prosecuted for animal abuse. Michelle often was seen to be crying and carrying on angry disputes with people whom she imagined to be present.

After a trial, during which Michelle was represented by two attorneys, the Los Angeles Probate Court appointed UC Santa Barbara Prof. Robert Rauchhaus, a long-term family friend, as Michelle’s conservator. Los Angeles Judge Aviva Bobb also determined that Michelle lacks the capacity to consent to any medical treatment whatsoever, because Michelle’s thinking is so grievously impaired. However, Judge Bobb refused to give Michelle’s Conservator the authority to consent to psychotropic medication or confinement (as recommended by the stipulated court appointed independent medical expert and other experts), effectively making the probate conservatorship useless.

On Friday, April 25, 2009, we filed a petition for a writ of mandamus in the Court of Appeal for the Second District. The petition asks the Court of Appeal to overturn Judge Bobb’s conclusion that Probate Code section 2357 does not empower the Probate Court to authorize a conservator to consent to mental health treatment for a schizophrenic, or any mentally ill person --- unless the mental illness is dementia.

We believe that Judge Bobb’s ruling effectively deprives schizophrenics of access to probate conservatorships, since schizophrenics can get no benefit from probate conservatorships under Judge Bobb’s interpretation of the law.

Our petition to the Court of Appeal asserts that the Probate Court does have the power and the duty to authorize Michelle’s conservator to consent to the mental health treatment she needs. Our petition is based on the 1990 amendments to Probate Code §§ 2356 and 2357, and the doctrine of equal protection under the California and the Federal Constitutions.

There is no rational basis for discriminating against long-term active psychotic schizophrenics, by depriving them of mental health care that is readily available to dementia victims in the Probate Court setting, particularly since UCLA Prof. Lori Holt’s report showed that Michelle’s schizophrenia is just as objectively provable as many mild dementias that would obviously justify a conservatorship (and actually more easily provable than many such dementias). Also, Michelle’s schizophrenia is much more disabling than many dementias that would obviously justify a conservatorship.

During Michelle’s more than 20 years of mental illness and homelessness, Michelle had several short mental health conservatorships, and many temporary mental health holds. During those treatment periods, Michelle was shown to benefit greatly from psychotropic medication, i.e., a substantial reduction in psychotic behavior, and a great improvement in her perceived quality of life.

But when the mental health conservatorships or emergency “holds” expired, Michelle stopped taking her medications. Thereafter, she resumed being floridly and actively psychotic, and homeless --- eating out of garbage cans. Michelle continues to believe that she is not mentally ill, that God wants her to eat only from garbage cans, and that the voices are angels or something like that. When she is not medicated, she cries a lot and often seems very distraught. She attempted suicide shortly before we obtained the probate conservatorship.

In opposition to our petition, Michelle’s lawyers asserted that that LPS court has the advantage for the conservatee/proposed conservatee of better protection of the person's rights. Every six months, the patient has the right to hearings along the way and writs on the holds. Michelle’s lawyers claim that Michelle’ rights would not get such protection in the Probate Court.

That is false. To the contrary, the public defender in an LPS conservatorship is constrained by law to oppose the conservatorship, even if the lawyer for the mentally ill person knows to a reasonable certainty that defeating the conservatorship will lead to the client's death. Does Michelle have a right to live? A right to not be killed by hallucinations or delusions?

In probate conservatorships nowadays, the court is required by law to appoint an attorney to represent the proposed conservatee. In probate conservatorships incapacity to consent to medical treatment must be proven by clear and convincing evidence, just as it must be proven by clear and convincing evidence in LPS proceedings.

The big difference in the threshold of proof is entry into the conservatorship system, i.e., the establishment of the conservatorship itself. To establish a conservatorship, the LPS Act requires proof beyond a reasonable doubt of a disability that is unremitting, whereas the Probate Code requires “only” clear and convincing evidence. The Probate Code permits or encourages the Court to take into consideration "the frequency, severity and duration of periods of impairment." Prob. C. 811(c). By contrast, LPS case law requires the Court to ignore obvious lability. See for example, Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 18-19.

"In reaffirming its appointment the [trial] court stated, "Well, the problem, of course, is that the present condition of Mr. Murphy is such, as he sits here today, that he does not appear to be grievely [sic] disabled, however, *18 the reasonable probabilities are, and I think the great weight of the evidence is, that if he were to be left to his own devices, he would very shortly be back in the realm of those who are greatly disabled because of the intoxication problem and the ingestion of alcohol. It may sound like rampant paternalism, but in my view, that is a characteristic which is currently present in part of his make-up, and has to be taken into account in determining grave disability. [¶]

As a result, and because of the core prognosis and lack of motivation from refraining from those things that cause him to be gravely disabled, it's my conclusion that the evidence does establish his grave disability and therefore the order re-appointing conservator is re-affirmed and the existing orders will continue in effect."

"Here, both expert witnesses testified Murphy was presently capable of managing his own affairs, i.e., capable of providing for his food, clothing, and shelter. Their determination, and the court's, that Murphy was gravely disabled was based upon a "likelihood" that if he were released he would at some future time return to *19 the use of alcohol. The pivotal issue is whether Murphy was "presently" gravely disabled, and the evidence demonstrated he was not.
The judgment is reversed. [The conservatorship is dismissed.]"

Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 18-19.

A Brief History of Mental Health Care Law

In the Probate Code

California Law Revision Commission Studies of Mental Health Treatment in Probate Conservatorships

1. California Law Revision Commission Memorandum 89-097 [.pdf]

2. California Law Revision Commission Study L-3029 — Court-Authorized Medical Treatment [.pdf]

3. 20 California Law Revision Commission Reports, pages 1 – 2000 [.pdf]

Chapter 710 of Statutes of 1990 [.doc]

Chapter 710 of Statutes of 1990 amended Probate Code Sections 2356 and 2357 for the explicit purpose of authorizing involuntary mental health treatment in Probate Conservatorships.

Chapter 910 of Statutes of 1996 [.pdf]

Probate Code § 2356.6 provides criteria under which a demented conservatee may get mental health care. Probate Code § 2356.5 was enacted by Chapter 910 of Statutes of 1996.

Section 2356.5 contains an erroneous “Legislative Finding” asserting that the 1996 enactment of section 2356.5 “add[ed involuntary mental health treatment] powers to the probate conservatorship for people with dementia”.

To the contrary, nine years earlier, Chapter 710 of Statutes of 1990 “added involuntary mental health treatment powers to the probate conservatorship” for any conservatee whose need for the mental health care is proven. The 1990 enactment did this by amending Probate Code §§ 2356 and 2357.

Unlike the non-discriminatory 1990 amendments to Probate Code §§ 2356 and 2357, the 1996 statute (Probate Code § 2356.5) discriminates against the mentally ill, by indicating that a schizophrenic conservatee cannot get the same mental health care, under Section 2356.5 – for a schizophrenia-related mental condition – that a demented conservatee has a right to get, if the same need for the same mental health care is proven.