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Conservatorship of B.C.

California Court of Appeals, Second District, Sixth Division

December 16, 2016

Conservatorship of the Person of B.C. C.S., Petitioner and Respondent,
B.C., Objector and Appellant

          Superior Court of Ventura County, No. 56-2014-00452252-PR-CP-OXN, Glen M. Reiser, Judge.

Page 1029


         Stephen P. Lipson, Public Defender, and Benjamin W. Maserang,Deputy Public Defender, for Objector and Appellant.

         The Law Office of Theresa L. McConville and Sara J. McLemen for Petitioner and Respondent.


Page 1030

          [212 Cal.Rptr.3d 181] PERREN, J.

          In Conservatorship of Heather W. (2016) 245 Cal.App.4th 378, 381 [199 Cal.Rptr.3d [212 Cal.Rptr.3d 182] 689] ( Heather W. ), we held that in conservatorship proceedings under the Lanterman-Petris-Short Act (LPS Act)[1] " the trial court must obtain a personal waiver of a jury trial from the conservatee, even when the conservatee expresses no preference for a jury trial." We joined a growing line of cases holding 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." ( Heather W., at p. 383.)

         Here, the trial court appointed respondent C.S. as probate conservator for her niece, appellant B.C., who suffered cardiac arrest and brain damage from the combined effect of methamphetamine and alcohol. (Prob. Code, § 1800 et seq.)[2] B.C. appeals C.S.'s appointment.

         We hold that probate conservatorships do not require a personal waiver of the conservatee's right to a jury trial because the proceedings pose no threat of 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." (§ 1827.) B.C.'s attorney had authority to waive a jury trial on her behalf, even if the trial court failed to recite that B.C. had a right to a jury. We also conclude that B.C.'s opposition to C.S.'s petition was fully litigated, satisfying a Probate Code requirement that B.C. be consulted about the proposed conservatorship. (§ 1828, subd. (b).) Finally, the record supports the trial court's finding that B.C. cannot take care of her own health needs, nor can her husband be trusted to do so.


         In 2012, at age 30, B.C. overdosed and nearly died. The resulting lack of oxygen to her brain caused physical and mental impairments. When stricken, B.C. was with Jesse M., by whom she has a daughter born in 2006. The couple has a history of methamphetamine abuse.

         Upon release from the hospital, B.C. lived with her mother and required 24-hour care. Initially, Jesse M. lived in the household and helped with B.C.'s care, but was evicted by B.C.'s mother because he objected to the administration of B.C.'s prescribed medication.

Page 1031

         Following the sudden death of B.C.'s mother, who left B.C. a $450,000 inheritance, B.C. and Jesse M. were married, in May 2014. B.C. went to live with Jesse M., who stopped administering her medication because he felt she was more alert without it.

         B.C. was evaluated by neuropsychologist Ines Monguio in August 2014. Dr. Monguio determined that B.C. can perform daily living activities, such as arising in the morning, brushing her teeth, showering, and preparing a simple meal, but needs care, direction and structure. Dr. Monguio observed that B.C. seems to trust Jesse M., yet calls him her " best friend," not her husband, and does not know his home address.

         Testing showed that B.C. processes information very slowly and has little ability to remember anything. Dr. Monguio doubted whether practice would improve this severe memory deficit. B.C. is not competent to make medical decisions and needs assistance with her physical health as she " doesn't have the memory to remember from one moment to the next, [212 Cal.Rptr.3d 183] much less one day to the next." The memory deficit makes B.C. " vulnerable to fraud from people she trusts."

         Dr. Monguio opined that Jesse M. is dedicated to B.C.'s well-being, but acknowledged that (1) Jesse M. did not hire a speech and occupational therapist, as Dr. Monguio recommended, though money is set aside for B.C.'s medical needs, and (2) Jesse M. admitted that he and B.C. " were partying together," using drugs and alcohol, when B.C. had her near-fatal heart attack. Dr. Monguio could not say whether Jesse M. felt guilty about the event.

         In March 2014, B.C. signed a durable power of attorney for health care naming Jesse M. as her agent. Jesse M. obtained the form and had B.C. sign it before a notary. Dr. Monguio did not know whether B.C. is able to appreciate the risks, benefits or alternatives to naming Jesse M.

         During Dr. Monguio's second evaluation in October 2015, B.C. seemed more relaxed, fluent and pleasant than before, though she did not remember Dr. Monguio. B.C. expressed love for Jesse M. and her life. Test results showed no meaningful cognitive changes. B.C. was consistent in 2014 and 2015 that she wanted Jesse M. to make medical decisions and assist her. Dr. Monguio observed that B.C. " lost a significant amount of weight" over the year.

         B.C.'s estate conservator testified that Jesse M. took disability benefits that were supposed to be in B.C.'s estate and refused to return the money. Jesse M. admitted at trial that B.C. received $14,000 in disability benefits. He spent all of it on ...

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