California Court of Appeals, Second District, Sixth Division
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.
P. Lipson, Public Defender, and Benjamin W. Maserang,Deputy
Public Defender, for Objector and Appellant.
Office of Theresa L. McConville and Sara J. McLemen for
Petitioner and Respondent.
Cal.Rptr.3d 181] PERREN, J.
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) " 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.)
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.) B.C. appeals C.S.'s appointment.
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.
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.
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.
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.
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
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."
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.
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.
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.
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 ...