San Diego County Department of Social Services v. Neal

I respectfully dissent. The majority views Conservatorship of Davis (1981) 124 Cal.App.3d 313 [ 177 Cal.Rptr. 369 ] as holding the availability of willing family, friends or third parties to assist a gravely disabled person provide for his or her basic needs outweighs evidence of the person’s mental disability in determining whether a conservatorship should be established under the Lanterman-Petris-Short Act (LPS Act). I disagree with this interpretation. I read Conservatorship of Early (1983) 35 Cal.3d 244 [ 197 Cal.Rptr. 539 , 673 P.2d 209 ] as stating the proper rule of law: “We determine only that evidence of available assistance by family members or friends which will enable one suffering from a mental disorder to meet his or her basic needs for food, clothing and shelter is admissible and that proffered instructions on this issue when tendered by the evidence must be given.” (Early, supra, at p. 249 .)

Here, an experienced trial judge considered evidence of willing third party assistance and concluded substantial evidence demonstrated Merritt Neal is “gravely disabled.” The substantial evidence standard of review compels affirmance of establishment of the conservatorship.…

*687 Opinion

Merritt Neal appeals the order finding him gravely disabled within the meaning of the Lanterman-Petris-Short Act (Welf. & Inst. Code, §§ 5000-5464) (LPS Act) and establishing a conservatorship for him. The court named his common law wife, Betty Kearney, as his conservator. We reverse.

The LPS Act provides that a conservatorship shall be established when, because of a mental disorder, the proposed conservatee “is unable to provide for his basic personal needs for food, clothing, or shelter.” (Welf. & Inst. Code, § 5008, subd. (h)(1).) In Neal’s court trial his counsel admitted Neal did not have the ability to take care of himself and he was not contesting the medical diagnosis that Neal suffered from a mental disorder. Instead he argued this was a “Mary Davis case”; because Kearney was willing to take care of Neal the court could not find him gravely disabled within the meaning of the statute.

Counsel’s reference to this being a “Mary Davis case” was shorthand for his argument that the facts warranted a ruling consistent with the holding of Conservatorship of Davis (1981) 124 Cal.App.3d 313 [ 177 Cal.Rptr. 369 ]. (See also Conservatorship of Early (1983) 35 Cal.3d…

Sharron Voorhees, under appointment by the Court of Appeal, for Objector and Appellant.

Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace and Mark C. Mead, Deputy County Counsel, for Petitioner and Respondent.

OPINION

WIENER, Acting P.J.

Merritt Neal appeals the order finding him gravely disabled within the meaning of the Lanterman-Petris-Short Act (Welf. & Inst. Code, §§ 5000-5464) (LPS Act) and establishing a conservatorship for him. The court named his common law wife, Betty Kearney, as his conservator. We reverse.

(1) The LPS Act provides that a conservatorship shall be established when, because of a mental disorder, the proposed conservatee "is unable to provide for his basic personal needs for food, clothing, or shelter." (Welf. & Inst. Code, § 5008, subd. (h)(1).) In Neal's court trial his counsel admitted Neal did not have the ability to take care of himself and he was not contesting the medical diagnosis that Neal suffered from a mental disorder. Instead he argued this was a "Mary Davis case"; because Kearney was willing to take care of Neal the court could not find him gravely disabled within the meaning of the statute.

Counsel's reference to this being a…