Conservatorship of Price

Filed 2/23/07 Conservatorship of Price CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, James E. Satt, Judge. Affirmed.

Rutter Hobbs & Davidoff Incorporated and Terence S. Nunan for Objector and Appellant.

Law Offices of Mitchell A. Karasov and Tomohiro J. Kagami for Petitioners and Respondents.

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This is a conservatees appeal from the order imposing the conservatorship and appointing his son and sister as conservators. We affirm.

FACTS

A.

On July 27, 2005, Carlton Price III (Carlton) filed a petition for the appointment of a conservator for his father, Carlton Price II (Price), on the ground that Price (a Vietnam veteran exposed to Agent Orange) was unable to provide for his personal needs or manage his finances. As later amended, the petition asked the court to appoint Carlton and his aunt (Marjorie Y. Smith, Prices sister) as conservators of Prices person and estate. A supporting declaration by Isidore Kwaw, M.D., described Price as delusional and dangerous to himself as a result of dementia. On its own motion, the court appointed a lawyer (Terence S. Nunan) to represent Price. A hearing was set for August 31 and notice thereof was given to Price, Nunan, Alice Price (Prices mother), Smith, Zondra L. Young (Prices other sister), and Lynette Price (Prices wife, from whom he has been separated since 2003). On August 31, the hearing was continued to September 28.

On September 13, Carlton filed an amended petition explaining Prices medical problems in more detail (he was refusing to continue dialysis, suffering from hallucinations, and living in unsanitary conditions). On September 16, 20, and 22, Carltons lawyer (Tomohiro Kagami) wrote to Nunan to explain the seriousness of Prices medical condition and to emphasize the risk to Prices health from his refusal to receive dialysis (he had at that point missed four appointments). By September 20, Price had been hospitalized. On September 22, Kagami urged Nunan to have Price assessed by a geriatric psychiatrist and offered several names. Kagami enclosed photographs showing the deplorable conditions of Prices residence.

B.

On September 28, Price filed an objection to the petition, in which Nunan asserted that Price did not need and [did] not desire a conservator of his estate or person, that he would in any event prefer to have someone other than his son act as conservator (but he did not say who that someone else might be). Nunan said he had spent an hour and a half with Price, an articulate 61-year-old man with significant heart and kidney problems, who is aware of his circumstances and who does not want a conservatorship. Nunan questioned the accuracy of the doctors declarations filed by Carlton, and suggested that Price could, with Carltons assistance, continue to live without the need of a formal conservatorship. The court-appointed probate investigators report confirmed Prices poor health and his opposition to the conservatorship.

C.

On September 28, the court ordered an independent examination of Price by a geriatric psychiatrist to be agreed upon by the parties and continued the hearing to October 31. When the parties were unable to agree on a psychiatrist, the court (at Carltons request) appointed Robert Wang, M.D. (who was to be paid by Carlton and who was not to communicate with the lawyers or Carlton or Smith). The hearing was continued from October 31 to November 1, then conducted over the course of three days.

Smith testified that she had been looking after Price since 2003, that he frequently failed to take his medications, and that he had missed a number of dialysis appointments. She frequently had to take him to the emergency room. Smith wanted the conservatorship so that her brother would not lose his home, his health care needs would be managed, he would not be harmed, and he would be safe.

Carlton testified that he moved to Los Angeles in 2005 to help care for his father. He described the unsanitary conditions of Prices house, and explained that Price believed a voodoo lady . . . could come in . . . through the walls [and] heater. To defend himself, Price kept butcher knives on the floor and between the sofa cushions, and placed live wires on the floors and doors to electrocute her. Price frequently locked himself out of the house and Carlton would find him wandering outside. Price receives disability benefits from the Veterans Administration and the County of Los Angeles but often misplaces his money or invests it in old cars or other schemes rather than using it to pay his mortgage. Carlton wanted the conservatorship because Price needed constant care.

According to Dr. Wangs report, Prices responses are rambling, unfocussed [sic], and frequently tangential, making details of the history vague and difficult to ascertain. His chronic problems, especially the diabetes and end stage renal failure requiring dialysis, make Mr. Price very susceptible to recurrent metabolic delirium, which would produce episodic confusional [sic] states. Decision-making, executive function, and concentration would be impaired during these confusional [sic] states. Prices right sided weakness could be from a stroke or other structural brain disease, either of which could account for his ideational apraxia. His verbal memory is fairly intact, but his orientation is moderately abnormal, with additional deficits in visuospatial [sic] skills, praxis, as well as naming. Price suffers from definite though mild cognitive dysfunction, which on casual conversation may be difficult to recognize because of relatively spared verbal skills. Dr. Wang said a history of medication or treatment non-compliance would mean Price would not be able to manage his own health care and decision-making.

In opposition, Price offered Dr. Wangs report to show that Price had two half-sisters, Barbara ONeil and Gail ONeil (deceased) and a half-brother, Eugene Price. Price then moved for a mistrial based on Carltons failure to give notice to the half-siblings, claiming Nunan did not know about the half-siblings until he received Dr. Wangs report (and thus could not earlier have raised the notice issue). The court denied the motion.

Price testified that he wanted Barbara ONeil as conservator rather than Carlton or Smith. He then told the court about the voodoo lady who often shower[s] in the back of his house and complained that Carlton and Smith prevented him from investing in a cancer cure machine that kills most diseases after about 15 minutes.

The court found that all notices required by law had been given, that Price is unable to provide for his personal needs, that he is unable to manage his financial resources or resist fraud (noting Dr. Wangs opinion that Prices current metabolic delirium . . . would produce episodic confusional [sic] states), and that he lacks the capacity to give informed consent for medical treatment. The court granted the petition, appointed Carlton and Smith as co-conservators, and instructed them to maintain Price in his own home (he is not to be placed in a locked facility without further order of court). A month later, Prices half-siblings signed waivers of notice of the hearing and consents to the appointment of Carlton and Smith as conservators. (Prob. Code, 1204.)[1] Price appeals.

DISCUSSION

I.

Price contends the conservatorship cannot stand because his half-siblings were not given timely notice of the hearing. We disagree. Although the required 15-day notice ( 1822, subds. (a), (b), 1821, subd. (b)) was not given to Prices half-siblings, both waived the defect and consented to the appointment of Carlton and Smith as co-conservators. ( 1204 [a person may waive notice by a writing signed by the person and filed in the proceeding].) As a result, Price cannot show prejudice, without which we will not reverse.[2]

Prices claim that the failure to give notice to his half-siblings deprived him of possible additional witnesses concerning his conduct and condition misses the point. He had not forgotten their existence (he is the one who informed Dr. Wang that he had half-siblings) and he thus could have told his lawyer about them. Price offers no legal authority for his assertion that Barbara ONeils waiver is ineffective because it was signed after the order was made, and no factual authority (by citation to the record or otherwise) for his assertion that Eugene Price has withdrawn his waiver and consent. As a result, we disregard these claims. (Cal. Rules of Court, rule 8.204(a)(1)(C); Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1.)[3]

II.

We reject Prices contention that there is insufficient evidence to support the probate courts decision that a conservatorship is appropriate in this case. Although clear and convincing evidence was required below ( 1801, subd. (e)), the issue on appeal is whether the probate courts order is supported by substantial evidence (Conservatorship of Ramirez (2001) 90 Cal.App.4th 390, 401). It was.

The evidence shows that Price repeatedly locked himself out of his house, allowed the house to go into foreclosure so he could use his income to fix wrecked cars and invest in miracle cures and other get-rich-quick schemes. He suffers from diabetes, congestive heart failure, high blood pressure, and kidney failure. He has suffered several heart attacks and possibly a stroke. He did not regularly take his medication and he frequently refused or missed his dialysis treatments. He ate rotten food, hid knives and sticks around the house, and placed live wires on door knobs to electrocute an imaginary voodoo woman. He lived in squalor. During the periods of confusion caused by his medical problems, his decision-making abilities and concentration are impaired. At the hearing, he could not remember whether he paid the last months mortgage or to whom it was paid. He often lost money, then would claim it had been stolen by the imaginary voodoo woman.

No more was required.

III.

We summarily reject Prices contention that he would prefer to have his spouse as his conservator. This issue was waived by his failure to raise it below (as a result of which there is nothing in the record to suggest that Price had the capacity to nominate a conservator or to show that Lynette Price is either willing or able to act in that capacity). ( 1810 [a proposed conservatee with sufficient capacity to form an intelligent preference may nominate a conservator in writing].)

DISPOSITION

The order is affirmed. Respondents are entitled to their costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] All section references are to the Probate Code.

[2] At oral argument, Price claimed the waivers were ineffective because they were not given until after the conservatorship order was entered -- but he offered no authority for this proposition (at argument or in his brief) and we know of none.

[3] Our resolution of this issue on the basis stated in the text makes it unnecessary to decide whether (as Price claims) notice to half-siblings is actually required by the Probate Code.