H038826
The Sixth Appellate District reversed a probate court order reappointing a conservator under the Lanterman-Petris-Short Act. The court held that the probate court exceeded its authority in granting a conservator’s petition for reappointment as a sanction for the conservatee’s refusal to submit to a mental examination in the absence of a court order compelling such an examination.
In 1998, the Santa Clara County Superior Court established a conservatorship over G.H.’s person pursuant to the Lanterman-Petris-Short (LPS) Act. G.H. was thereafter under continuous conservatorship.
In March 2012, the Santa Clara County Public Guardian filed a petition to be reappointed G.H.’s conservator under the LPS Act. The petition alleged that G.H remained gravely disabled as a result of mental disorder.
The trial court set the matter for an evidentiary hearing on May 9.
On May 9, G.H. was not present in court. The Public Guardian explained that G.H. had refused to submit to a mental examination with the Public Guardian’s doctor, and that it did not intend to transport G.H to court unless G.H. submitted to the mental examination.
At a continued hearing on May 25, G.H. again failed to appear in court. The Public Guardian informed the court that G.H. had again refused to submit to examination.
The probate court thereafter granted the Public Guardian’s request for a discovery sanction and granted the reappointment petition. In its written order, the court explained that G.H.’s failure to submit to a mental examination with the Public Guardian’s doctor authorized the court to impose an evidence or terminating sanction pursuant to Code Civ. Proc. §2032.410. The court found that G.H., as a consequence of his repeated non-compliance, had forsaken his right to an evidentiary hearing.
The court of appeal reversed, holding that, in the absence of a court order compelling G.H. to submit to an examination, his refusal to do so did not give the probate court authority to issue a terminating sanction.
Section 2032.410 states: “If a party is required to submit to a physical or mental examination … but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction....” The problem here, the court explained, was that G.H. was never required to submit to an examination.
Full Article and Source:
Conservatorship of the Person of G.H.
Wow, he was not transported to court as a punishment for refusing a mental examination.
ReplyDeleteThe court then imposed further conservatorship on him as a punishment for non-compliance, without even ordering that he be transported to the rescheduled hearing, without listening to his side of the story, and without taking the obvious step of ordering the exam. Not to mention perhaps taking the unthinkable step of ordering an exam with a health care practitioner who does NOT have a conflict of interest. What laziness, what outright corruption.
There is a lawyer, somewhere, and probably two lawyers, who need to be disbarred over this outrage.
News flash, counselors: disability is not a character flaw. The role of a guardian/conservator is NOT DISCIPLINARY. It is to provide a much-needed SERVICE, in the LEAST RESTRICTIVE WAY POSSIBLE.
Each and every one of these slimeballs have a FIDUCIARY DUTY TO THE INCAPACITATED PERSON.
I really hope that, when he is freed from their "help," he sues the @#&% out of everybody involved in this travesty.
This reminds me of nothing more than lawyer Gregory M. Pomije, Esquire, attorney for runaway public guardianship program Jewish Family Service of Tidewater, who repeatedly described Jenny Hatch as "defiant" for merely stating her reasonable wishes. That's right, "defiant." (Please google Jenny Hatch for further details.) And this clown is still walking around, inflicting his twisted views on more incapacitated people who just need help, and maliciously assassinating the character of anyone with the gall to stick up for these victims.
Shameful.
Good. Sounds like the Santa Clara County Public Guardian is at it again.........
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