Conservatorship of William F.

Filed 7/18/07 Conservatorship of William F. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and order of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

William F. appeals a judgment finding him gravely disabled and an order establishing a conservatorship under the Lanterman-Petris-Short Act (LPS Act, Welfare and Institutions Code section 5000 et seq.)^[1] after a jury unanimously found "as a result of [a] mental disorder William [F.] is unable to provide for his basic personal needs for food, clothing, or shelter," and thus is gravely disabled. William contends the evidence is insufficient to support the jury's finding. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On March 2, 2006, the Public Conservator filed an Ex Parte Petition for Appointment of Temporary Conservator to establish an LPS conservatorship for William because of his mental disorder or impairment. On March 28, 2006, the trial court granted the petition and appointed the public guardian as William's temporary conservator. William requested a jury trial during the initial hearing on the petition.

The jury trial commenced on May 17, 2006. Dr. Michael McCarthy William's primary resident psychiatrist for the three weeks before trial was the only expert to testify. McCarthy stated William, who was 76 years old and lived in an independent living facility, displayed "bizarre" behavior and suffered hallucinations in November, 2005. William was admitted to the Veteran's Administration Hospital for three to four weeks until he was stabilized. Upon his transfer to an open skilled nursing facility, he became so agitated and aggressive that security had to intervene. He became confused and asked to leave the facility. In early 2006, the facility sent him back to the hospital because it could not legally keep him against his will. He refused to return from the hospital to the open skilled nursing facility. He displayed "profoundly delirious" behavior and had hallucinations to the point that he falsely asserted both that his family members were ambassadors to Iraq and his son physically abused him. He remained at the hospital for four months, up to the trial date.

Dr. McCarthy diagnosed William with dementia not otherwise specified. Since William's second admission to the hospital, he had been in and out of delirium and displayed cognitive slowing, which evidenced a frontal lobe dysfunction and dementia. William had difficulty engaging in cognitive planning tasks, shifting his attention from one thing to another, and orienting himself to place and time. William suffered from apraxia, an inability to perform motor tasks. Three or four days before trial, Dr. McCarthy found William partially nude and in a contorted uncomfortable position on a bed in his room; William explained he was unable to dress himself. Dr. McCarthy and a nurse repositioned William, but even with that assistance he could not fasten the top of his pants.

At the hospital, William's dental problems and missing teeth made chewing difficult, and he required constant prompting from the nursing staff to attend meals. The health staff was concerned about his nutrition because he ate only 20 to 30 percent of each meal.

According to Dr. McCarthy, William "seemed fixated on a plan to live with his son" who is blind and unable to care for him. William told Dr. McCarthy that if he could not stay with his son, his only other plan to secure shelter was to steal a car and live in it. William lacked the basic math and budgeting skills necessary to pay rent and other expenses with the $800 to $1000 he collected in monthly disability payments.

Dr. McCarthy documented William's behavior and analyzed other physicians' test results that were consistent with a dementia diagnosis. Dr. McCarthy understood that William's pain made it difficult for him to move and eat, but believed dementia and apraxia were the main causes of William's inability to provide for his basic needs, and his problems with eating and dressing were "above and beyond" normal physical ailments. William needed consistent prompting to eat, take his medications, and manage other basic needs, such as getting to the bathroom without assistance.

Dr. McCarthy concluded William showed a profound inability to tend to his basic needs while in the hospital, and he was unable to provide for his food, clothing and shelter. Dr. McCarthy determined William would be better off in a locked skilled nursing facility than in an open board and care facility because William verbalized a desire to leave the hospital and was therefore a flight risk at the time of trial.

At trial, William was asked what he took medications for, and responded, "I take 40 pills, about 40 pills a day. It's impossible for me to know." William testified he was at the hospital for treatment for broken bones, and not for any mental condition. He claimed he disliked the hospital's food and his physical pain caused his difficulty in getting dressed. William also testified he "just got promoted to Lieutenant this year," and he received a "very large sum" of money.

Debra DeMarr, William's former colleague and close friend for more than 20 years, visited William during his stay at the open skilled nursing facility before his second admission to the hospital. William told DeMarr that he gave a young female patient his credit card to show the patient he was serious about wanting to marry her. William explained to DeMarr that he was in treatment because he needed help taking care of himself. Although William recognized DeMarr during her visit at the hospital about a month and a half before trial, he was confused and about "nine-tenths" of what he said made no sense to her.

The jury found William was gravely disabled; accordingly, the court ordered a conservatorship established.

DISCUSSION

Under section 5350, the applicable standard to establish a conservatorship is proof beyond a reasonable doubt. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 223.) On appeal, we apply a substantial evidence standard of review and examine "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find [grave disability] beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 18.) Thus, we must affirm the findings of the trial court if there is " 'any substantial evidence which, together with the aid of all inferences reasonably drawn from it, tends to support the judgment.' " (Katz v. Superior Court (1977) 73 Cal.App.3d 952, 980.) Reversal is appropriate only if the "evidence is insufficient to support a necessary finding, express or implied." (Ibid.)

The term "gravely disabled" means: "A condition in which a person, as a result of a mental disorder, is unable to provide for his basic personal needs for food, clothing, or shelter." ( 5008, subd. (h)(1)(A).) Expert testimony that shows a proposed conservatee's mental disorder and the consequent inability to provide for his or her basic personal needs is sufficient to support a finding of grave disability and a subsequent conservatorship appointment. (Conservatorship of Johnson (1991) 235 Cal.App.3d 693, 697-698.)

Here, Dr. McCarthy testified that William, diagnosed with dementia, would not take his numerous medications or eat without prompting, and was unable to express a plan to provide for his shelter. Dr. McCarthy testified William was a flight risk, and a locked skilled nursing facility would be most beneficial. This testimony sufficed to support the jury's finding and the trial court's judgment and order.

DISPOSITION

The judgment and order are affirmed.

O'ROURKE, J.

WE CONCUR:

McDONALD, Acting P. J.

IRION, J.

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^[1] All further statutory references are to the Welfare and Institutions Code.